Category: reason

About 20 million Americans turned out for the first Earth Day on April 22, 1970. Lectures and rallies took place at more than 2,000 college campuses, 10,000 elementary and high schools, and thousands of other places across the country. Forty-two states adopted resolutions endorsing Earth Day, and Congress recessed so that legislators could participate in the activities in their districts. It is sometimes described as, up to that time, the largest public demonstration in history.

The lectures and literature surrounding the event featured lots of dismal predictions about the future. One such compendium of doom was The Environmental Handbook, whose cover noted that it had been “prepared for the first national environmental teach-in.” Commissioned by the group Friends of the Earth, the book preached the perils of rising population and imminent depletion of nonrenewable resources. Many of its contributors—let’s call them the Catastrophists—warned that even such drastic actions as halving the number of human beings and stopping economic growth completely might not be enough to prevent the imminent ecological cataclysm.

A different group of researchers believed that while economic growth and technological progress had created some ecological problems, these things also would be a source of solutions. Let’s call these folks the Prometheans. The economist Theodore Schultz argued in the Bulletin of the Atomic Scientists in 1972 that the expansion of modern agriculture would free up more land for nature. Other proponents of this more sanguine outlook included the oceanographer Cy Adler, the economist Christopher Freeman, and Nature editor emeritus John Maddox, author of the 1972 book The Doomsday Syndrome.

Today, the Earth Day Network hopes a billion people across the world will participate in Earth Day 2020, where the 50th anniversary focus will be on man-made climate change. Living as we do in the future that the Catastrophists and the Prometheans were forecasting, now is a great time to look back at the claims made five decades ago. Which side had the abler prophets?

The Catastrophists

In his contribution to The Environmental Handbook, an essay called “The Limits of Adaptability,” the biologist René Dubos claimed that “the dangers posed by overpopulation are more grave and more immediate in the U.S. than in less industrialized countries. This is due in part to the fact that each U.S. citizen uses more of the world’s natural resources than any other human being and destroys them more rapidly, thereby contributing massively to the pollution of his own surroundings and of the earth as a whole.”

Handbook editor Garrett De Bell’s essay claimed that overpopulation was the biggest reason for mankind’s increasing use of pollution-causing energy sources. While “population control will take time,” De Bell argued, we could get a start on a solution “by ceasing to use power for trivial purposes.” Specifically, the prices for energy supplies should be so scaled as to discourage people from using such “abundant luxuries” as blenders, can openers, power saws, mowers, clothes dryers, air conditioners, hair dryers—and cars, of course: “If you wanted to design a transportation system to waste the earth’s energy reserves and pollute the air as much as possible, you couldn’t do much better than our present system dominated by the automobile.”

De Bell also noted that burning fossil fuels was increasing the amount of carbon dioxide in the atmosphere. “Scientists are becoming worried about increasing CO2 levels because of the greenhouse effect, with its possible repercussions on the world climate,” he wrote. Reducing energy use in the U.S. by 25 percent during the following decade could be a start toward “preventing disastrous climatic changes.”

In their contribution to the Handbook, political scientist Robert Rienow and his wife, author Leona Train Rienow, declared that “a New Yorker on the street took into his lungs the equivalent in toxic materials of 38 cigarettes a day.” Although factories and residential heating contributed to urban smog, automobiles were the biggest culprits: “While cars get faster and longer, lives get slower and shorter. While Chrysler competes with Buick for the getaway, cancer competes with emphysema for the layaway. This generation is indeed going to have to choose between humans and the automobile. Perhaps most families have too many of both.”

The book’s most urgent vision of imminent global environmental disaster was courtesy of the Stanford biologist Paul Ehrlich. He sketched a scenario in which devastating famines would kill tens of millions of people in Asia, Africa, and Latin America by the end of the 1970s, and smog disasters in Los Angeles and New York would kill 200,000 Americans in 1973. Warning that “America’s resource situation was bad and bound to get worse,” he dismissed “cornucopian economists” by imagining future congressional hearings in which a “distinguished geologist from the University of California” would urge that “economists be legally required to learn at least the most elementary facts of geology.”

Ehrlich’s essay was not a prediction for how the 1970s would literally unfold. But it was obviously designed to scare people about the impending ecological apocalypse, and it did conclude with an actual prediction: “Most of the people who are going to die in the greatest cataclysm in the history of man have already been born.” He added that by 1975, “some experts feel that food shortages will have escalated the present level of world hunger and starvation into famines of unbelievable proportions. Other experts, more optimistic, think the ultimate food-population collision will not occur until the decade of the 1980s.”

“Population will inevitably and completely outstrip whatever small increases in food supplies we make,” Ehrlich confidently declared in the April 1970 issue of Mademoiselle. “The death rate will increase until at least 100–200 million people per year will be starving to death during the next ten years.”

Harrison Brown of the National Academy of Sciences published a chart in the September 1970 issue of Scientific American projecting that humanity would run out of copper shortly after 2000; lead, zinc, tin, gold, and silver would be gone before 1990. Brown claimed that his estimates took into account the possibilities that “new reserves will be discovered by exploration or created by innovation.” The February 2, 1970, issue of Time quoted the ecologist Kenneth Watt: “By the year 2000, if present trends continue, we will be using up crude oil at such a rate…that there won’t be any more crude oil.”

And in January 1970, Life magazine warned: “In a decade, urban dwellers will have to wear gas masks to survive air pollution.”

The Prometheans

People in developed countries “have been assailed by prophecies of calamity,” Maddox wrote in The Doomsday Syndrome. “To some, population growth is the most immediate threat. Others make more of pollution of various kinds, the risk that the world will run out food or natural resources or even the possibility that economic growth and the prosperity it brings spell danger for the human race.”

The trajectories Maddox foresaw for population and food production differed dramatically from those predicted by the Catastrophists. Technologically advanced rich countries, he noted, had undergone a demographic transition from the Malthusian past of high fertility/high mortality societies to a high fertility/low mortality combination. But this, he argued, was a temporary stage; we were already entering a population-stabilizing low fertility/low mortality state. “Although the demographic transition has only just begun in large parts of the developing world, there is every reason to expect that it will produce demographic stability entirely comparable with that which now exists in Western Europe and elsewhere in the industrialized world,” he concluded. “The population explosion has all the signs of being a damp squib.”

Food production, meanwhile, was “now increasing much faster than population.” During the 1960s, Maddox observed, it grew at 2.7 percent annually, handily outstripping the global population growth rate of 2 percent a year. In India and Southeast Asia, food production was increasing at 4 percent annually, about double their population growth rates. And further improvements were possible.

With regard to energy, Maddox cited estimates from 1970 that “there are more, but not much more, than 300,000 million tons of petroleum [about 2.1 trillion barrels] still to be extracted from the ground.” At the then-current rate of extraction of 15 billion barrels annually, he calculated that supplies would last for 135 years.

And other natural resources? “Techniques for exploration and extraction of metals seem to have kept ahead of scarcity,” he observed. Consequently, supplies of metals “are becoming economically more plentiful, not more scarce.”

Maddox fully acknowledged that pollution was harming people and the natural world. Cutting air pollution in the U.S. by 50 percent, he said, would increase life expectancy by three to five years. But he did not think pollution threatened the very existence of the human race. It was, he argued, an open-access commons problem that could be solved through technology and sensible public policy. In 60 American cities, he pointed out, average levels of smokiness had already declined by 20 percent from 1957 to 1970; sulfur dioxide had fallen by a third from 1962 to 1969.

Noting that burning fossil fuels was increasing concentrations of carbon dioxide in the atmosphere, Maddox calculated that CO2 would increase by 15 percent by 2000. That is, in fact, what happened. He also predicted that that rise would result in “an increase of the temperature on the surface of the earth by something like one-half degree centigrade.” That was also just about right.

Finally, “if it turns out that the scale of industrial activity is so great that the accumulation of carbon dioxide threatens climate change,” Maddox wrote, the same ingenuity that was reducing other forms of pollution “could be applied to regulate the concentration of the gas. To be sure, such an intervention would require expensive and historically important changes in industrial practices, but calamity is avoidable.”

The bottom line for Maddox was that “technology and prosperity are not the inherent nuisances of which environmentalists continually complain, but rather, the means by which a better environment could be created.”

Who Was More Right?

World population has increased since 1970, though at a lower rate than predicted by the Catastrophists. At the time of the first Earth Day, there were 3.7 billion people on Earth; that has now risen to 7.6 billion. On the other hand, the global total fertility rate back then was 4.8 children per woman; it has now plummeted to 2.4. In 83 countries—including the United States—fertility is below the replacement rate of 2.1 children per woman. Those 83 countries represent half the world’s population. Wolfgang Lutz, a demographer at the International Institute for Applied Systems Analysis, projects that world population will peak in this century and then begin to fall.

Though our population doubled, those globe-spanning famines did not occur. Instead, world food production more than tripled, with average per-capita calories supplied rising from around 2,400 to nearly 3,000 per day. In the U.S., corn yields since 1970 have grown from about 60 bushels per acre to nearly 170 now. Modern agriculture is becoming so productive that the Rockefeller University researcher Jesse Ausubel thinks humanity is at the cusp of “peak farmland,” and that our total use of land for agriculture will soon begin to decline.

Meanwhile, Maddox appears to have been too conservative—not too optimistic—in his beliefs about global petroleum resources. In 2014, the U.S. Energy Information Administration estimated the total amount of technically recoverable petroleum at about 3.4 trillion barrels.

Just as the world did not run out of oil, it did not run out of copper, lead, zinc, tin, gold, or silver. In 1974, the total world reserves of copper amounted to 417 million tons. The U.S. Geological Survey reports that in 2019, world copper reserves stood at 830 million tons. In 1974, world lead reserves were 132 million tons. In 2019, they were 83 million tons. Zinc reserves went from 236 million tons to 230 million tons. Tin reserves moved from 10 million tons to 4.7 million tons. Gold reserves rose from 41,000 tons to 54,000 tons. Silver reserves moved up from 187,000 tons to 560,000 tons.

As you may have noticed, city dwellers in developed countries are not wearing gas masks as they go about their daily lives. As forecast by Maddox, urban air was cleared using technology and the “vigorous application of social instruments, laws, and taxes.” From 1970 to 2018, the Environmental Protection Agency reports, America’s combined emissions of six key air pollutants dropped by 74 percent, even as the U.S. economy grew by 275 percent. The United Kingdom and the European Union have likewise experienced steep declines in air pollution.

Surface water pollution has also been reduced. Based on 14.6 million pollution readings at 265,000 monitoring sites between 1972 and 2014, the EPA reports that in 1972, 30 percent of tested surface waters in the United States did not meet the fishable standard (thriving habitats for fish that are safe to eat); only 15 percent failed that standard in 2014.

Both Catastrophist De Bell and Promethean Maddox worried about the possible climatic effects of rising atmospheric concentrations of carbon. Indeed, the amount of CO2 in the atmosphere has increased by 25 percent, from 328 parts per million in April 1970 to 412 parts per million today. Since the first Earth Day, the globe’s average temperature has increased by about 1 degree Celsius, and recent research suggests that the world is on track to increase by another 2 degrees Celsius by the end of this century.

De Bell responded to climate change by recommending energy austerity, while Maddox argued that the same human ingenuity that was solving other air pollution problems could be brought to bear on greenhouse warming. Given how thoroughly economic growth and sci-tech prowess have falsified the Catastrophists’ other forecasts, it’s not implausible that those same forces will let us surmount the problems posed by climate change too.

The Sense of an Ending

In his 1967 book The Sense of an Ending, the literary critic Frank Kermode argued that human beings try to give significance to our short lives in the long sweep of history by placing ourselves in the middle of a narrative arc. That arc typically traces civilization’s fall from a golden age through a current stage of decadence to an impending apocalypse—one that may, through the bold efforts of the current generation, usher in a new age.

“The great majority of interpretations of Apocalypse assume that the End is pretty near,” observed Kermode. But since the end never arrives, “the historical allegory is always having to be revised….And this is important. Apocalypse can be disconfirmed without being discredited. This is part of its extraordinary resilience.”

The dire prophecies of the first Earth Day have been mostly proven wrong, but the prophets of an always-impending environmental apocalypse have not thereby been discredited. Auguries of imminent catastrophe remain resilient, even as the world of 2020 is in a much happier state than the Catastrophists of 1970 ever expected.

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One of the fascinating questions raised by the United States Supreme Court’s 2018 decision in Carpenter v. United States is how the Fourth Amendment applies to government use of automated license-plate readers (ALPRs) and the querying of ALPR databases.  Last week, the Massachusetts Supreme Judicial Court handed down what I believe is the first appellate decision on the question, Commonwealth v. McCarthy.  McCarthy is likely the first of many appellate decisions on this question, so I thought it deserves a close look.

Applying the controversial mosaic theory of the Fourth Amendment, McCarthy ruled that use of ALPRs can violate the Fourth Amendment, but that it depends on how much the ALPR query happens to reveal.  Because the surveillance in this particular case was relatively limited, it did not tell the police enough to create a mosaic and was therefore not a Fourth Amendment search.

McCarthy is a fascinating case, although I think it’s ultimately a good example of why the mosaic theory is unworkable and should be rejected (as I have argued here and here).  I’ll start with the facts, turn to the majority’s reasoning, explain Justice Gants’s concurrence, and then offer some thoughts of my own.

I.  The Facts

This is a drug case.  Investigators suspected McCarthy of distributing heroin from his home to a co-conspirator’s home on Cape Cod.  There are two bridges on to Cape Cod, the Sagamore bridge and the Bourne bridge, and the state has ALPRs set up on those two bridges.  To see if their suspicions about McCarthy’s travels were right,  the police set up an alert on the state ALPR system to tell the police when McCarthy’s car crossed one of the two bridges.  The alert they set up operated in “real time,” but only for the cameras fixed on those particular bridges.

For two and a half months, the police learned the precise dates, times, directions, and specific lanes that McCarthy’s car traveled on the two bridges to or from Cape Cod.  The police then used a later ALPR hit to know when McCarthy’s car had crossed one of the bridges and was likely meeting with his co-conspirator.  Upon seeing that meeting, the police made their arrest.

The legal issue raised in the case was whether the government violated McCarthy’s constitutional rights by conducting this monitoring of his car’s location.

II.  The Reasoning

The Supreme Judicial Court ruled that use of ALPRs can violate the Fourth Amendment, but that they didn’t in this particular case.

The court began by endorsing the mosaic theory of the Fourth Amendment.  The SJC had previously suggested a mosaic theory was viable under its state constitution.  But here the court explicitly endorsed the theory for both the state constitution and (more importantly) the federal Fourth Amendment.

Looking at its state constitutional cases together with several federal constitutional cases, the court reasoned that

these cases articulate an aggregation principle for the technological surveillance of public conduct, sometimes referred to as the mosaic theory. When collected for a long enough period, the cumulative nature of the information collected implicates a privacy interest on the part of the individual who is the target of the tracking. . . . As the analogy goes, the color of a single stone depicts little, but by stepping back one can see a complete mosaic.

A detailed account of a person’s movements, drawn from electronic surveillance, encroaches upon a person’s reasonable expectation of privacy because the whole reveals far more than the sum of the parts. The difference is not one of degree but of kind.  Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. Aggregated location data reveals a highly detailed profile, not simply of where we go, but by easy inference, of our associations—political, religious, amicable and amorous, to name only a few—and of the pattern of our professional and avocational pursuits.

(internal quotations and citations omitted, both here and in the passages below)

The court next concluded that use of ALPRs is a Fourth Amendment search if enough ALPRs are used in particular ways:

In determining whether a reasonable expectation of privacy has been invaded, it is not the amount of data that the Commonwealth seeks to admit in evidence that counts, but, rather, the amount of data that the government collects or to which it gains access. . . . For this reason, our constitutional analysis ideally would consider every ALPR record of a defendant’s vehicle that had been stored and collected by the government up to the time of the defendant’s arrest. That information, however, is not in the record before us.

With enough cameras in enough locations, the historic location data from an ALPR system in Massachusetts would invade a reasonable expectation of privacy and would constitute a search for constitutional purposes. The one-year retention period indicated in the EOPSS retention policy certainly is long enough to warrant constitutional protection. Like CSLI data, ALPRs allow the police to reconstruct people’s past movements without knowing in advance who police are looking for, thus granting police access to a category of information otherwise [and previously] unknowable. Like both CSLI and GPS data, ALPRs circumvent traditional constraints on police surveillance power by being cheap (relative to human surveillance) and surreptitious.

So what’s the test for when use of ALPRs is sufficient to trigger a Fourth Amendment search?

As I understand the court’s opinion, the test is applied ex post.  After the surveillance has occurred, you look back and consider if the surveillance ended up revealing enough about a person’s life to have been a search.  This should be evaluated based on the totality of the picture that emerged based on all of the circumstances:

[T]he constitutional question is not merely an exercise in counting cameras; the analysis should focus, ultimately, on the extent to which a substantial picture of the defendant’s public movements are revealed by the surveillance.

For that purpose, where the ALPRs are placed matters too. ALPRs near constitutionally sensitive locations—the home, a place of worship, etc.—reveal more of an individual’s life and associations than does an ALPR trained on an interstate highway. A network of ALPRs that surveils every residential side street paints a much more nuanced and invasive picture of a driver’s life and public movements than one limited to major highways that open into innumerable possible destinations. For while no ALPR network is likely to be as detailed in its surveillance as GPS or CSLI data, one well may be able to make many of the same inferences from ALPR data that implicate expressive and associative rights.

So where is the line? Well, the court could not say exactly where the line is:

On this record, however, we need not, and indeed cannot, determine how pervasive a system of ALPRs would have to be to invade a reasonable expectation of privacy. While a testifying expert alluded to cameras “all over the State,” the record is silent as to how many of these cameras currently exist, where they are located, and how many of them detected the defendant.

However, the court did conclude that the surveillance here was not enough:

[W]e consider the constitutional import of four cameras placed at two fixed locations on the ends of the Bourne and Sagamore bridges. . . .

There is no real question that the government, without securing a warrant, may use electronic devices to monitor an individual’s movements in public to the extent that the same result could be achieved through visual surveillance. It is an entirely ordinary experience to drive past a police officer in a cruiser observing traffic on the side of the road, and, of course, an officer may read or write down a publicly displayed license plate number. In this way, a single license plate reader is similar to traditional surveillance techniques.

On the other hand, four factors distinguish ALPRs from an officer parked on the side of the road: (1) the policy of retaining the information for, at a minimum, one year; (2) the ability to record the license plate number of nearly every passing vehicle; (3) the continuous, twenty-four hour nature of the surveillance; and (4) the fact that the recorded license plate number is linked to the location of the observation. These are enhancements of what reasonably might be expected from the police.

The limited number of cameras and their specific placements, however, also are relevant in determining whether they reveal a mosaic of location information that is sufficiently detailed to invade a reasonable expectation of privacy. The cameras in question here gave police only the ability to determine whether the defendant was passing onto or off of the Cape at a particular moment, and when he had done so previously.

This limited surveillance does not allow the Commonwealth to monitor the whole of the defendant’s public movements, or even his progress on a single journey. These particular cameras make this case perhaps more analogous to CSLI, if there were only two cellular telephone towers collecting data. Such a limited picture does not divulge the whole of the defendant’s physical movements,  or track enough of his comings and goings so as to reveal the privacies of life.

That brought the court to its conclusion:

While we cannot say precisely how detailed a picture of the defendant’s movements must be revealed to invoke constitutional protections, it is not that produced by four cameras at fixed locations on the ends of two bridges. Therefore, we conclude that the limited use of ALPRs in this case does not constitute a search within the meaning of either art. 14 or the Fourth Amendment.

(emphasis added)

III.  Justice Gants’s Concurrence

In a concurrence, Justice Gants suggested that perhaps the mosaic theory should encompass multiple tiers of surveillance, with different degrees of surveillance possible with different court order requirements.  If surveillance is sufficient to constitute a search, he wrote, “we have two options”:

Our first option is to determine based on the facts of a particular case when the locational mosaic of a targeted individual’s movements crosses the threshold of the reasonable expectation of privacy. A mosaic above that threshold would require a search warrant based on probable cause, but a mosaic below that threshold would not require any court authorization.

Alternatively, we could strike a balance analogous to that struck by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 21 (1968), and decide that there are two locational mosaic thresholds: a lesser threshold that may be permissibly crossed with a court order supported by an affidavit showing reasonable suspicion and a greater threshold that is permissibly crossed only with a search warrant supported by probable cause.

The reasonable suspicion standard would require “specific and articulable facts” demonstrating reasonable suspicion that the targeted individual has committed, is committing, or will commit a crime, and that there are reasonable grounds to believe that the data obtained from the query are relevant and material to an investigation of the crime.

Justice Gants goes on to explain how this would work.  As I understand the proposal,  the government could apply for court orders for various levels of surveillance, based on its prediction of how much surveillance it will conduct and how much cause was needed for that level.  After the surveillance occurs, the reviewing court would assess whether it feels the government collected only a reasonable-suspicion amount of surveillance or a probable-cause amount of surveillance.  The court would then ask if the affidavit viewed ex post established ex ante enough cause to satisfy the mosaic demands of the surveillance that ended up occurring:

This second alternative would mean that law enforcement agencies would need to obtain court authorization more often before retrieving targeted individual historical locational information in their possession because queries that would not require a showing of probable cause might still require a showing of reasonable suspicion. But the benefit to law enforcement would be that, if the police sought a court order based on reasonable suspicion and a reviewing court determined that the query sought locational data that could yield a mosaic of movement requiring a showing of probable cause, the search would not be found unconstitutional (and the information collected would not be suppressed) if the reviewing court found that the affidavit supported a finding of probable cause.

In contrast, where no court order was obtained and a reviewing court determined that probable cause or reasonable suspicion was required to support the retrieval of historical locational information, the data retrieved from the query would have to be suppressed even if law enforcement could have met the applicable standard.

Under Justice Gants’s view, the tiered Fourth Amendment mosaic regime would also imply a government record-keeping requirement:

Regardless of which alternative the court ultimately chooses, a reviewing court will need to know the extent of the mosaic that was possible from the retrieval of historical locational information regarding the movements of a targeted individual, because only then can the court accurately determine whether the threshold had been crossed.

Therefore, unless the law enforcement agency has sought prior court approval to search for particularized locational data in its possession, the agency will have to preserve each and every search query for the retrieval of historical locational information regarding a targeted individual.

For instance, if the State police maintain 1,000 ALPRs at different locations throughout the Commonwealth, it matters whether they searched for a suspect’s vehicle from the data yielded by all 1,000 cameras or only by four cameras, and it matters whether they gathered this data for one day or one hundred days. And regardless of whether a court authorized the search, the agency must preserve the historical locational data regarding a particular individual that the agency retrieved as a result of such queries from the data in its possession, even when that exceeds the amount of data that the agency uses in an investigation or at a trial.

Further, this Fourth Amendment theory also implies certain discovery obligations:

And the agency must make this preserved data and search request available in discovery when sought by the defendant. Only then will a court have the information it needs to determine whether the retrieval of locational information regarding a targeted individual crossed a constitutional threshold that requires court authorization and either reasonable suspicion or probable cause.

IV.  My Own Views

This is fascinating majority opinion and a fascinating concurrence.  The court here is offering developed and engaged take and how the Fourth Amendment might apply to public surveillance.  I appreciate the Justices’ engagement with some really deep questions.  In my view, though, McCarthy ultimately offers a good demonstration of why the mosaic theory is unworkable.

The court’s approach is to look ex post to see if the government learned enough about a person for the surveillance to need a warrant ex ante.  But the court can’t say where the line is.  And that makes it hard both for the government to know what it should do and for reviewing courts to say when the line has been crossed.  Here, four cameras on two ends of two bridges for two and half months wasn’t enough. In another case, the court says, a single camera “may well be” enough.  Who knows where the line may be?

This is the Fourth Amendment equivalent of Justice Stewart’s comment about then-existing obscenity standards in Jacobellis v. Ohio.  “[P]erhaps I could never succeed in intelligibly” saying when a movie is unprotected obscenity, Justice Stewart famously commented. “But I know it when I see it, and the motion picture involved in this case is not that.”

The McCarthy court’s reasoning seems similar. Perhaps you can’t succeed in intelligibly identifying when a search has occurred, but the court knows it when it sees it.  And surveillance “produced by four cameras at fixed locations on the ends of two bridges” is not that.

This is a particularly challenge approach given the likely need for a warrant if a search is later found.  After the data is collected, the appellate courts will then look at all the data, figure out what it revealed, and then say whether a warrant was needed before the government tried to collect it.

Think of how it would work with a query into an existing database instead of a real-time query like the one in McCarthy.  For example, imagine the government wanted to know where McCarthy’s car had been for the last 10 days.  Maybe that query would reveal 10 hits from two cameras.  Or maybe that query would reveal 1,000 hits from 300 cameras.  If you’re an officer, you can’t know whether your query will reveal a “substantial picture of the defendant’s public movements” until you know the results, at which time you can find out if you needed a warrant before you ran the query you just finished.  Or maybe more accurately, you’ll then have the information needed to ask a judge whether the judge finds the picture “substantial” and therefore a search.  Odd.

To be clear, I don’t have a particular view of how the Fourth Amendment should apply to ALPRs.  Maybe using them should be a search, maybe it shouldn’t be.  But as I argued in this book chapter, Implementing Carpenter, I think the answer shouldn’t rely on the mosaic theory.  The mosaic theory raises too many unanswerable questions to implement; it would keep courts and investigators guessing for years about what the law requires.

A bright-line answer is needed, I think. Maybe the bright-line rule should be that accessing ALPR data is always a search.  Maybe it should be that accessing ALPR data is never a search.  But I don’t think it works to saying that it is sometimes a search, based on the totality of the circumstances depending on how things ended up going.

Other ALPR cases are pending, and it will be fascinating to see if they follow or diverge from the approach in McCarthy.  As always, stay tuned.

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Officials in San Clemente, California, dumped 37 tons of sand on a skate park to keep skaters from using it. The park, along with other city recreation facilities, was closed to promote social distancing but skaters ignored “no trespassing” signs and kept using the park. The nonprofit group that raised money to build the park says the city did not consult them before filling it with sand.

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I’m “social distancing.” I stay away from people.

I do it voluntarily.

There’s a big difference between voluntary—and force.

Government is force. The media want more of that.

“Ten states have no stay-at-home orders!” complains Don Lemon On CNN. “Some governors are still refusing to take action!”

Fox News’ host Steve Hilton agreed. “Shut things down! Everywhere. That includes Utah, Wyoming.”

But wait a second. People in Utah and Wyoming already socially distanced just by living there. Why must Utah and Wyoming have the same stay-at-home rules as New York?

I find it creepy how eager some people are for authorities to boss us around.

That’s the topic of my new video.

In Raleigh, North Carolina, people gathered to protest a “stay-at-home” order. The police arrested a protester and tweeted, “Protesting is a non-essential activity.”

I bet they got a chuckle out of that. But our Constitution guarantees Americans the right to “peaceably assemble” and “petition the government for a redress of grievances.”

The coronavirus doesn’t override the Constitution.

Protests also erupted in Michigan, where Gov. Gretchen Whitmer imposed some absurd rules. She declared, “All public or private gatherings of any size are prohibited.” Her executive order stopped people from seeing relatives and banned anyone with more than one home to travel between them.

Big-box stores are allowed to stay open, but they must not sell things like carpet, flooring, furniture, garden supplies, paint, etc. So, Walmart stores are open, but some of their shelves have tape blocking certain products.

That’s just dumb.

Gardening and painting can be done far away from other people.

So can exercise. But in California, police chased down and arrested a paddleboarder paddling in the ocean. He was far more than 6 feet away from anyone.

In Encinitas, California, police fined people $1,000 just for sitting in cars to watch the sunset at the beach. Yes, inside their cars. The police said, “We want compliance from everybody (because of) lives that we’re trying to save.”

But it’s not clear that demanding total compliance is the best way to save lives.

Sweden took a near-opposite approach.

Yes, they encouraged older people to stay inside and sick people to stay home. They didn’t want hospitals overwhelmed. But otherwise, Sweden is carrying on almost as normal.

“Closing schools, stringent measures like that, closing borders, you cannot do that for months or years,” said epidemiologist Anders Tegnell of the Swedish Health Agency. “What we are doing in Sweden we can continue doing for a very long time. I think that’s going to prove to be very important in the long run.”

The long run matters most.

Since a vaccine is probably at least a year away, the Swedes reason that the best protection is what epidemiologists call “herd immunity,” a critical mass of people who get the disease and then are resistant to it.

The hope is that once enough people get COVID-19, there will be enough immunity to prevent mass outbreaks later. Many of the most vulnerable may then be able to avoid ever getting the virus.

The jury is still out on this experiment. More than 1,500 Swedes have died, five times the death rate of neighboring Norway. But if Swedes acquire “herd immunity,” their death rate will be the first to drop.

Other European countries agree that lockdowns are not sustainable.

Last week, Denmark reopened nursery and elementary schools. Germany opened retail stores this week. Norway opens schools next week. Austria reopens shops to people who wear masks on May 1.

That seems smarter than the “absolute shutdown” promoted by so many American authorities. Los Angeles Mayor Eric Garcetti has threatened to “shut off water and power” to homes of people who do not shelter in place.

Shut off water and power?

Politicians rush to limit our choices in the name of “keeping us safe.” They don’t even want to think about places like Sweden or the argument that leaving us alone might make us safer.

They just like pushing people around.

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When she announced the startling results of a new COVID-19 study on Monday, Los Angeles County’s top public health official emphasized that the number of infections far exceeds the official count of confirmed cases. She underplayed another important implication of the study: COVID-19 seems to be far less deadly than many people feared.

The way Department of Public Health Director Barbara Ferrer framed the study’s results raises a question that policy makers across the country will confront as they consider when and how to loosen sweeping restrictions aimed at curtailing the COVID-19 epidemic. Will they be guided by emerging evidence, or will they use it to support the policies they already favored?

The Los Angeles County study, conducted by University of Southern California researchers in collaboration with Ferrer’s department, tested a representative sample of 863 adults for antibodies to the virus in early April. About 4 percent of them tested positive, indicating that the number of adults in the county who had been infected by the virus was roughly 40 times the number of confirmed cases at the time.

Confirmed cases are limited to people who have tested positive for the virus, and testing so far has been skewed toward people with severe symptoms. Since people infected by the virus typically experience mild to no symptoms, it is not surprising that the official tally understates the number of infections, although the apparent size of the gap is striking.

“These results indicate that many persons may have been unknowingly infected and at risk of transmitting the virus to others,” Ferrer said. “These findings underscore the importance of expanded [virus] testing to diagnose those with infection so they can be isolated and quarantined, while also maintaining the broad social distancing interventions.”

Since the number of infections in Los Angeles County is much higher than the official numbers indicate, Ferrer told reporters, the risk of transmission is higher than expected, which reinforces the case for aggressive control measures, including broad business closure and stay-at-home orders. At the same time, she said, the fact that 95 percent or so of the county’s adult population remains uninfected shows those measures are working.

In other words, no matter what the actual prevalence of the virus is, and no matter how you look at it, that information justifies maintaining the statewide lockdown. One wonders what conceivable results from the antibody study might have caused Ferrer to reconsider the wisdom of that policy.

The question is especially pressing in light of the fatality rate implied by the study. In contrast with the current crude case fatality rate of about 4.5 percent, Ferrer said, the study suggests that 0.1 percent to 0.2 percent of people infected by the virus will die, which would make COVID-19 only somewhat more deadly than the seasonal flu.

That finding is consistent with the results of an earlier antibody study in Santa Clara County. “The mortality rate now has dropped a lot,” Ferrer conceded.

That point, assuming it is confirmed by other studies, surely should figure in any cost-benefit analysis of lockdowns, which are depriving millions of Americans of their liberty and livelihoods in the hope of saving lives. Politicians who supported those restrictions were powerfully influenced by terrifying projections of COVID-19 deaths that assumed a fatality rate at least four times as high as the data from Los Angeles County and Santa Clara County suggest.

Those projections also assumed “no intervention,” referring not just to lockdowns but also to narrower regulations as well as voluntary precautions such as hand washing, using face masks, limiting social interactions, avoiding crowds, and working from home. It was never realistic to imagine that Americans would simply carry on as usual in the face of the COVID-19 epidemic.

Policy makers right now are not choosing between lockdowns and nothing; they are choosing between lockdowns and less costly, more carefully targeted measures. That choice should be informed by evidence that undercuts their worst fears.

© Copyright 2020 by Creators Syndicate Inc.

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The Senate on Tuesday passed an addition to the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which will funnel another $484 billion toward small business loans, hospitals, and testing.

At the center of the new package is $320 billion in funding for the Paycheck Protection Program, the stimulus measure meant to provide a lifeline to small businesses hit hard by COVID-19 shutdowns. A $60 billion portion of that has been set aside specifically for community bankers in order to help companies that have had trouble securing loans from large lending institutions.

Another $75 billion will go toward hospitals on top of the $100 billion allotted to them in the first version of the CARES Act. That funding will assist medical centers in making up for COVID-19 costs and lost revenue, particularly as hospitals across the country have had to cancel elective surgeries.

A $25 billion carveout has been reserved to ramp up COVID-19 testing. Out of that sum, $11 billion will go to states and localities, $1 billion will go to the Centers for Disease Control and Prevention (CDC), $1.8 billion will go to the National Institutes of Health, $1 billion will go to the Biomedical Advanced Research and Development Authority, and up to $1 billion can be utilized to cover testing for those without insurance.

“I am encouraged that Democrats have finally agreed to reopen the Paycheck Protection Program and abandon a number of their unrelated demands,” said Senate Majority Leader Mitch McConnell (R–Ky.) in a statement. “Republicans never wanted this crucial program for workers and small businesses to shut down. We tried to pass additional funding a week before it lapsed. But Democratic leaders blocked the money and spent days trying to negotiate extraneous issues that were never on the table.”

In fact, lawmakers from both parties have used the crisis to push for unrelated demands. The Democrats publicly pushed for additional money for hospitals, which lawmakers agreed to spend in this bill. 

“Congressional Democrats are proud to have secured an agreement on an interim emergency funding package that has been transformed to provide real support for the lives and livelihoods of the American people,” House Speaker Pelosi (D–Calif.) and Senate Minority Leader Chuck Schumer (D–N.Y.) said in a statement. “Democrats flipped this emergency package from an insufficient Republican plan that left behind hospitals and health and frontline workers and did nothing to aid the survival of the most vulnerable small businesses on Main Street.

Sen. Rand Paul (R–Ky.) announced his opposition and urged the need for remote voting, as many lawmakers are away from Washington, D.C., in quarantine. “This money doesn’t exist anywhere. It will be created or borrowed,” he said on the Senate floor. “I did return today so that history will record that not everyone gave into the massive debt that Congress is creating.”

The compromise will likely be welcome news to many small businesses who were shut out of the Paycheck Protection Program’s first round of loans, which ran out of funding after less than two weeks.

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