Category: reason

A Compromise Bill on Domestic Surveillance Reform Aims to Do Just Enough to Shut Trump Up

A lackluster compromise bill to reauthorize and reform federal surveillance powers has been released, and privacy rights activists on both the left and the right are speaking out against it.

At the end of the week, the USA Freedom Act will sunset if it’s not renewed. Passed after Edward Snowden revealed that the National Security Agency (NSA) was secretly using the Patriot Act to collect mass amounts of Americans’ phone and internet records, the act formalized the process but also added restrictions on the ability of the feds to actually access that information.

The feds have actually abandoned the practice of collecting and retaining all our metadata because—surprise!—not only is it a violation of our privacy rights, it’s not a particularly effective way of fighting terrorism or crime.

Nevertheless, the government, once granted power, rarely gives it up completely. Rather than simply letting these authorities all expire, Congress is hammering out a renewal with reforms intended to further restrict the ability to use those powers against Americans without getting a warrant first.

But there’s little agreement on what those reforms should look like. Yesterday evening, Reps. Jerry Nadler (D–N.Y.) and Adam Schiff (D–Calif.) introduced the compromise bill they’re pushing forward as ranking members of the House Judiciary Committee and House Select Intelligence Committee, respectively. The bill is H.R. 6172, the USA Freedom Reauthorization Act.

This bill is not a compromise designed to truly embrace the proposition that the U.S. government shouldn’t secretly snoop on its own citizens. Rather it’s about eliminating its worst excesses, some of which have already stopped on their own, and preserving the general nature of the authority.

One of the good things the bill does is completely eliminate the call records collection program. These have already been stopped, but it was the NSA’s own decision because it was ineffective and they kept accidentally collecting more data than they were permitted. This also means that under current law, the NSA could decide to fire it back up. These reforms would stop it from happening.

The proposed reforms would also prohibit authorities treating cell location and global positioning system (GPS) information as though they’re part of a “business record” (meaning the agencies will treat collecting this data as a form of surveillance subject to stricter regulation).

The proposal would require the destruction of collected records of Americans after five years, but there are so many exceptions that it’s hard to treat these stipulations seriously. One of the exceptions allows the feds to retain records if they’re “enciphered or reasonably believed to have a secret meaning,” strongly suggesting that they can store data just on the basis of it being encrypted, which online communications increasingly are.

Directly related to the Foreign Intelligence Surveillance Amendment (FISA) Court warrants approved to wiretap Carter Page and the serious problems with the FBI’s behavior, there are some reforms that are not connected to the authorities provided by the USA Freedom Act. It calls for the attorney general to sign off on any surveillance of a federal official or candidate for federal office, punishment and possible removal of any federal official who makes false declarations (or engages in misconduct) before the FISA court, and increases the potential penalty for criminal penalties related to the misuse of FISA from five years of imprisonment to eight.

The bill also boosts the ability of the FISA court to bring in independent amicus curiae advisers to evaluate what the court is doing and help assure that FBI officials aren’t attempting to seek warrants to snoop on activities protected by the First Amendment. And the reauthorization sunsets again in three years. This is not a permanent renewal.

And that’s good because privacy activists don’t believe the bill goes nearly far enough. Adam Brandon, president of the conservative think tank FreedomWorks, is telling lawmakers today to vote no on the bill:

Not included are many common sense protections that would have garnered widespread bipartisan support had they been allowed their day as part of a real legislative process. These include stronger protections against surveillance orders targeted substantially at activities protected under the First Amendment, such as communications with journalists, protests, or religious observance. They include limitations on the use of business records collection and the requirement that surveillance applications directed towards a US person be subject to a probable cause warrant standard. They also include a much stronger role of an amicus curiae in assessing whether FISA applications conform with the legal rights afforded to Americans under the Fourth Amendment.

Importantly, neither Title II nor the amicus expansions in this bill are likely to have actually prevented the FISA process abuses revealed by the report of DoJ Inspector General Michael Horowitz with respect to the surveillance of Trump campaign employee Carter Page. Neither President Trump’s concerns about the use of FISA against his campaign, nor larger-scale concerns about how the government has violated the privacy of millions of ordinary Americans, are well addressed in this bill.

Sen. Rand Paul (R–Ky.) is also not a fan:

Demand Progress is attacking the bill from the left for many of the same reasons. The group is encouraging members of Congress to vote no in a statement that reads in part, “These reforms are fully inadequate. Further, they are part of an ongoing effort to prevent Congress from considering surveillance reforms that would meaningfully protect their constituents’ privacy.”

Given that the part of the bill that requires more oversight by the attorney general only covers federal officials and candidates, it seems designed to assure President Donald Trump that he’s “safe,” even though he was never even personally wiretapped. Page himself was not a candidate for office when he was wiretapped and these new rules wouldn’t have stopped what happened to him.

As Spencer Ackerman at The Daily Beast notes, there are alternate bipartisan proposals to meaningfully restrain the use of secret FISA warrants against Americans that could protect against future abuses and mistakes that we saw in the Page case. But that’s not what’s being pushed forward. Historically, the strongest voices for more privacy here (like Paul’s) are in the minority. The political establishment prefers to reform as little about domestic surveillance that it can possibly get away with.

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A Compromise Bill on Domestic Surveillance Reform Aims to Do Just Enough to Shut Trump Up

A lackluster compromise bill to reauthorize and reform federal surveillance powers has been released, and privacy rights activists on both the left and the right are speaking out against it.

At the end of the week, the USA Freedom Act will sunset if it’s not renewed. Passed after Edward Snowden revealed that the National Security Agency (NSA) was secretly using the Patriot Act to collect mass amounts of Americans’ phone and internet records, the act formalized the process but also added restrictions on the ability of the feds to actually access that information.

The feds have actually abandoned the practice of collecting and retaining all our metadata because—surprise!—not only is it a violation of our privacy rights, it’s not a particularly effective way of fighting terrorism or crime.

Nevertheless, the government, once granted power, rarely gives it up completely. Rather than simply letting these authorities all expire, Congress is hammering out a renewal with reforms intended to further restrict the ability to use those powers against Americans without getting a warrant first.

But there’s little agreement on what those reforms should look like. Yesterday evening, Reps. Jerry Nadler (D–N.Y.) and Adam Schiff (D–Calif.) introduced the compromise bill they’re pushing forward as ranking members of the House Judiciary Committee and House Select Intelligence Committee, respectively. The bill is H.R. 6172, the USA Freedom Reauthorization Act.

This bill is not a compromise designed to truly embrace the proposition that the U.S. government shouldn’t secretly snoop on its own citizens. Rather it’s about eliminating its worst excesses, some of which have already stopped on their own, and preserving the general nature of the authority.

One of the good things the bill does is completely eliminate the call records collection program. These have already been stopped, but it was the NSA’s own decision because it was ineffective and they kept accidentally collecting more data than they were permitted. This also means that under current law, the NSA could decide to fire it back up. These reforms would stop it from happening.

The proposed reforms would also prohibit authorities treating cell location and global positioning system (GPS) information as though they’re part of a “business record” (meaning the agencies will treat collecting this data as a form of surveillance subject to stricter regulation).

The proposal would require the destruction of collected records of Americans after five years, but there are so many exceptions that it’s hard to treat these stipulations seriously. One of the exceptions allows the feds to retain records if they’re “enciphered or reasonably believed to have a secret meaning,” strongly suggesting that they can store data just on the basis of it being encrypted, which online communications increasingly are.

Directly related to the Foreign Intelligence Surveillance Amendment (FISA) Court warrants approved to wiretap Carter Page and the serious problems with the FBI’s behavior, there are some reforms that are not connected to the authorities provided by the USA Freedom Act. It calls for the attorney general to sign off on any surveillance of a federal official or candidate for federal office, punishment and possible removal of any federal official who makes false declarations (or engages in misconduct) before the FISA court, and increases the potential penalty for criminal penalties related to the misuse of FISA from five years of imprisonment to eight.

The bill also boosts the ability of the FISA court to bring in independent amicus curiae advisers to evaluate what the court is doing and help assure that FBI officials aren’t attempting to seek warrants to snoop on activities protected by the First Amendment. And the reauthorization sunsets again in three years. This is not a permanent renewal.

And that’s good because privacy activists don’t believe the bill goes nearly far enough. Adam Brandon, president of the conservative think tank FreedomWorks, is telling lawmakers today to vote no on the bill:

Not included are many common sense protections that would have garnered widespread bipartisan support had they been allowed their day as part of a real legislative process. These include stronger protections against surveillance orders targeted substantially at activities protected under the First Amendment, such as communications with journalists, protests, or religious observance. They include limitations on the use of business records collection and the requirement that surveillance applications directed towards a US person be subject to a probable cause warrant standard. They also include a much stronger role of an amicus curiae in assessing whether FISA applications conform with the legal rights afforded to Americans under the Fourth Amendment.

Importantly, neither Title II nor the amicus expansions in this bill are likely to have actually prevented the FISA process abuses revealed by the report of DoJ Inspector General Michael Horowitz with respect to the surveillance of Trump campaign employee Carter Page. Neither President Trump’s concerns about the use of FISA against his campaign, nor larger-scale concerns about how the government has violated the privacy of millions of ordinary Americans, are well addressed in this bill.

Sen. Rand Paul (R–Ky.) is also not a fan:

Demand Progress is attacking the bill from the left for many of the same reasons. The group is encouraging members of Congress to vote no in a statement that reads in part, “These reforms are fully inadequate. Further, they are part of an ongoing effort to prevent Congress from considering surveillance reforms that would meaningfully protect their constituents’ privacy.”

Given that the part of the bill that requires more oversight by the attorney general only covers federal officials and candidates, it seems designed to assure President Donald Trump that he’s “safe,” even though he was never even personally wiretapped. Page himself was not a candidate for office when he was wiretapped and these new rules wouldn’t have stopped what happened to him.

As Spencer Ackerman at The Daily Beast notes, there are alternate bipartisan proposals to meaningfully restrain the use of secret FISA warrants against Americans that could protect against future abuses and mistakes that we saw in the Page case. But that’s not what’s being pushed forward. Historically, the strongest voices for more privacy here (like Paul’s) are in the minority. The political establishment prefers to reform as little about domestic surveillance that it can possibly get away with.

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Can Law Ban False Reporting About Coronavirus?

The Newark Department of Public Safety writes:

Newark Public Safety Director Anthony F. Ambrose strongly urges the public against posting false information on social media regarding the presence of the coronavirus in the City of Newark.

“Any false reporting of the coronavirus in our city will result in criminal prosecution,” Director Ambrose said. “We are putting forth every investigative effort to identify anyone making false allegations on social media to ensure that any posted misinformation is immediately addressed.”

Director Ambrose adds that misleading information on social media may cause an unnecessary public alarm.

“The State of New Jersey has laws regarding causing a false public alarm and we will enforce those laws,” Ambrose said. “Individuals who make any false or baseless reports about the coronavirus in Newark can set off a domino effect that can result in injury to residents and visitors and affect schools, houses of worship, businesses and entire neighborhoods,” he added.

New Jersey law doesn’t threaten to punish people for honest (even unreasonable) mistakes in what they say about epidemics or other immediate threats, but it does forbid certain knowing lies, see N.J. Stats. 2C § 33-3:

(a) [A] person is guilty of a crime … if he initiates or circulates a report or warning of an impending fire, explosion, crime, catastrophe, emergency, or any other incident knowing that the report or warning is false or baseless and that it is likely to cause evacuation of a building, place of assembly, or facility of public transport, or to cause public inconvenience or alarm.

(b) A person is guilty of a [more serious crime] if the false alarm involves a report or warning of an impending bombing, hostage situation, person armed with a deadly weapon …, or any other incident that elicits an immediate or heightened response by law enforcement or emergency services.

(c) A person is guilty of a [similarly serious crime] if the false alarm involves a report or warning about … any building, place of assembly, or facility [in the State] that is indispensably necessary for national security, economic stability, or public safety….

Such bans on these sorts of knowing lies are likely constitutional (and might even be constitutional if applied to “reckless” falsehoods, which is to say statements that the speaker knows are probably though not certainly false).

U.S. v. Alvarez (2012) did hold that some lies are constitutionally protected; there, the Court struck down the Stolen Valor Act, which broadly banned lies about one’s own military decorations. But the two-Justice concurrence concluded that lies are generally less protected than other speech, and in particular that lies that are likely to cause tangible harm (beyond just the emotional distress or misplaced affection created by the deceit) are often prohibitable. And the three-Justice dissent would have gone even further, and would have treated most lies as generally unprotected.

This having been said, the concurrence and the dissent agreed that “[l]aws restricting false statements about philosophy, religion, history, the social sciences, the arts, and the like” create “a grave and unacceptable danger of suppressing truthful speech,” and are thus generally unconstitutional. The same may be true about the life sciences, so any attempt to punish even lies about (for instance) how coronavirus is generally transmitted would likely be unconstitutional; the remedy for such lies is public argument, and not criminal punishment. But the law likely can properly punish specific lies about whether one has been diagnosed with coronavirus, whether a person diagnosed with coronavirus has been present in some place, and so on; if the New Jersey statute (which is a bit vague on such matters) is interpreted as limited to lies on such specific topics, it will likely be upheld.

Thanks to reader Matt Monforton for the pointer.

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Can Law Ban False Reporting About Coronavirus?

The Newark Department of Public Safety writes:

Newark Public Safety Director Anthony F. Ambrose strongly urges the public against posting false information on social media regarding the presence of the coronavirus in the City of Newark.

“Any false reporting of the coronavirus in our city will result in criminal prosecution,” Director Ambrose said. “We are putting forth every investigative effort to identify anyone making false allegations on social media to ensure that any posted misinformation is immediately addressed.”

Director Ambrose adds that misleading information on social media may cause an unnecessary public alarm.

“The State of New Jersey has laws regarding causing a false public alarm and we will enforce those laws,” Ambrose said. “Individuals who make any false or baseless reports about the coronavirus in Newark can set off a domino effect that can result in injury to residents and visitors and affect schools, houses of worship, businesses and entire neighborhoods,” he added.

New Jersey law doesn’t threaten to punish people for honest (even unreasonable) mistakes in what they say about epidemics or other immediate threats, but it does forbid certain knowing lies, see N.J. Stats. 2C § 33-3:

(a) [A] person is guilty of a crime … if he initiates or circulates a report or warning of an impending fire, explosion, crime, catastrophe, emergency, or any other incident knowing that the report or warning is false or baseless and that it is likely to cause evacuation of a building, place of assembly, or facility of public transport, or to cause public inconvenience or alarm.

(b) A person is guilty of a [more serious crime] if the false alarm involves a report or warning of an impending bombing, hostage situation, person armed with a deadly weapon …, or any other incident that elicits an immediate or heightened response by law enforcement or emergency services.

(c) A person is guilty of a [similarly serious crime] if the false alarm involves a report or warning about … any building, place of assembly, or facility [in the State] that is indispensably necessary for national security, economic stability, or public safety….

Such bans on these sorts of knowing lies are likely constitutional (and might even be constitutional if applied to “reckless” falsehoods, which is to say statements that the speaker knows are probably though not certainly false).

U.S. v. Alvarez (2012) did hold that some lies are constitutionally protected; there, the Court struck down the Stolen Valor Act, which broadly banned lies about one’s own military decorations. But the two-Justice concurrence concluded that lies are generally less protected than other speech, and in particular that lies that are likely to cause tangible harm (beyond just the emotional distress or misplaced affection created by the deceit) are often prohibitable. And the three-Justice dissent would have gone even further, and would have treated most lies as generally unprotected.

This having been said, the concurrence and the dissent agreed that “[l]aws restricting false statements about philosophy, religion, history, the social sciences, the arts, and the like” create “a grave and unacceptable danger of suppressing truthful speech,” and are thus generally unconstitutional. The same may be true about the life sciences, so any attempt to punish even lies about (for instance) how coronavirus is generally transmitted would likely be unconstitutional; the remedy for such lies is public argument, and not criminal punishment. But the law likely can properly punish specific lies about whether one has been diagnosed with coronavirus, whether a person diagnosed with coronavirus has been present in some place, and so on; if the New Jersey statute (which is a bit vague on such matters) is interpreted as limited to lies on such specific topics, it will likely be upheld.

Thanks to reader Matt Monforton for the pointer.

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How Government Red Tape Stymied Testing and Made the Coronavirus Epidemic Worse

The United States is home to the most innovative biotech companies and university research laboratories in the world. That fact should have given our country a huge advantage with respect to detecting and monitoring emerging cases of COVID-19 caused by the new coronavirus outbreak.

Instead, as The New York Times reports in a terrific new article, officials at the Food and Drug Administration (FDA) and the Centers for Disease Control and Prevention (CDC) stymied private and academic development of diagnostic tests that might have provided an early warning and a head start on controlling the epidemic that is now spreading across the country.

As the Times reports, Seattle infectious disease expert Dr. Helen Chu had, by January, collected a huge number of nasal swabs from local residents who were experiencing symptoms as part of a research project on flu. She proposed, to federal and state officials, testing those samples for coronavirus infections. As the Times reports, the CDC told Chu and her team that they could not test the samples unless their laboratory test was approved by the FDA. The FDA refused to approve Chu’s test on the grounds that her lab, according to the Times, “was not certified as a clinical laboratory under regulations established by the Centers for Medicare & Medicaid Services, a process that could take months.”

In the meantime, the CDC required that public health officials could only use the diagnostic test designed by the agency. That test released on February 5 turned out to be badly flawed. The CDC’s insistence on a top-down centralized testing regime greatly slowed down the process of disease detection as the infection rate was accelerating.

A frustrated Chu and her colleagues began testing on February 25 without government approval. They almost immediately detected a coronavirus infection in a local teenager with no recent travel history. Chu warned local public health officials of her lab’s finding and the teenager’s school was closed as a precaution. The teen’s diagnosis strongly suggested that the disease had been circulating throughout the western part of Washington for weeks. We now know that that is likely true.

Did the FDA and CDC functionaries commend Chu for being proactive? Not at all. Washington state epidemiologist Scott Lindquist recalled, “What they said on that phone call very clearly was cease and desist to Helen Chu. Stop testing.” On February 29, the FDA finally agreed to unleash America’s vibrant biotech companies and academic labs by allowing them to develop and deploy new tests for the coronavirus that causes COVID-19.

The Times notes:

The Seattle Flu Study illustrates how existing regulations and red tape—sometimes designed to protect privacy and health—have impeded the rapid rollout of testing nationally, while other countries ramped up much earlier and faster. Faced with a public health emergency on a scale potentially not seen in a century, the United States has not responded nimbly.

Due to red tape, the coronavirus outbreak in the U.S. will be worse than it should have been.

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How Government Red Tape Stymied Testing and Made the Coronavirus Epidemic Worse

The United States is home to the most innovative biotech companies and university research laboratories in the world. That fact should have given our country a huge advantage with respect to detecting and monitoring emerging cases of COVID-19 caused by the new coronavirus outbreak.

Instead, as The New York Times reports in a terrific new article, officials at the Food and Drug Administration (FDA) and the Centers for Disease Control and Prevention (CDC) stymied private and academic development of diagnostic tests that might have provided an early warning and a head start on controlling the epidemic that is now spreading across the country.

As the Times reports, Seattle infectious disease expert Dr. Helen Chu had, by January, collected a huge number of nasal swabs from local residents who were experiencing symptoms as part of a research project on flu. She proposed, to federal and state officials, testing those samples for coronavirus infections. As the Times reports, the CDC told Chu and her team that they could not test the samples unless their laboratory test was approved by the FDA. The FDA refused to approve Chu’s test on the grounds that her lab, according to the Times, “was not certified as a clinical laboratory under regulations established by the Centers for Medicare & Medicaid Services, a process that could take months.”

In the meantime, the CDC required that public health officials could only use the diagnostic test designed by the agency. That test released on February 5 turned out to be badly flawed. The CDC’s insistence on a top-down centralized testing regime greatly slowed down the process of disease detection as the infection rate was accelerating.

A frustrated Chu and her colleagues began testing on February 25 without government approval. They almost immediately detected a coronavirus infection in a local teenager with no recent travel history. Chu warned local public health officials of her lab’s finding and the teenager’s school was closed as a precaution. The teen’s diagnosis strongly suggested that the disease had been circulating throughout the western part of Washington for weeks. We now know that that is likely true.

Did the FDA and CDC functionaries commend Chu for being proactive? Not at all. Washington state epidemiologist Scott Lindquist recalled, “What they said on that phone call very clearly was cease and desist to Helen Chu. Stop testing.” On February 29, the FDA finally agreed to unleash America’s vibrant biotech companies and academic labs by allowing them to develop and deploy new tests for the coronavirus that causes COVID-19.

The Times notes:

The Seattle Flu Study illustrates how existing regulations and red tape—sometimes designed to protect privacy and health—have impeded the rapid rollout of testing nationally, while other countries ramped up much earlier and faster. Faced with a public health emergency on a scale potentially not seen in a century, the United States has not responded nimbly.

Due to red tape, the coronavirus outbreak in the U.S. will be worse than it should have been.

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NSA’s call detail records program

The NSA’s effort to use call detail records to spot cross-border terror plots has a long history. It began life in deepest secrecy, became public (and controversial) after Edward Snowden’s leaks, and was then “reformed” in the USA Freedom Act. Now it’s up for renewal, and the Privacy and Civil Liberties Oversight Board, or PCLOB, has weighed in with a deep report on how the program has functioned – and why NSA has suspended it.

In this episode I interview Travis LeBlanc, a PCLOB Member, about the report and the program. Travis is a highly effective advocate, bringing me around on several issues, including whether the program should be continued and even whether the authority to revive it would be useful. It’s a superb guide to a program whose renewal is currently being debated (against a March 15 deadline!) in Congress.

And, uh, asking for a friend: Do the early stages of covid-19 infection make you more susceptible to persuasion?

Download the 305th Episode (mp3).

Take our listener poll at steptoe.com/podcastpoll!

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, families or friends.

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SCOTUS Grants Cert in the Catholic Adoption Services Case

The Roberts Court has been on a tear in church-and-state cases lately. Last term, the Court decided an important case on public religious displays, The American Legion v. American Humanist Association. This term, the Court will decide a case on Blaine Amendments, Espinoza v. Montana Dep’t of Revenue (which I discussed in an earlier post); yet another case on the Contraception Mandate, Little Sisters of the Poor v. Pennsylvania; a pair of cases on the ministerial exception, St. James School v. Biel and Our Lady of Guadalupe School v. Morrissey-Berru; and a case on the personal liability of government officials under RFRA, Tanzin v. Tanvir. For a purportedly minimalist bench, the Court seems quite ready to rule on controversial law-and-religion issues.

Late last month, the Court granted cert in another church-and-state case, Fulton v. City of Philadelphia, which has the potential to overshadow all the others. In Fulton, Catholic Social Services (CSS) challenges Philadelphia’s decision to exclude the charity from the city’s adoption program because of CSS’s policy of refusing to place children with same-sex and unmarried heterosexual couples. Philadelphia argues, among other things, that CSS’s policy violates the city’s non-discrimination ordinance. In response, CSS argues that the city’s action violates the First Amendment’s Free Exercise Clause. In essence, CSS maintains that its religious convictions make compliance with the anti-discrimination ordinance impossible and that the city should grant it an exemption, or accommodation, for that reason.

What makes Fulton so significant, potentially, is this. The cert petition specifically asks the Court to revisit its landmark 1990 decision in Employment Division v. Smith, which held that the Free Exercise Clause does not entitle religious believers to exemptions from “neutral” and “generally applicable” laws. Under Smith, religious believers have an obligation to comply with such laws, just like everybody else. Only where laws are not “neutral” and “generally applicable”—where, for example, laws target religious believers for disparate treatment—can religious believers make claims for accommodations. Even then, accommodations are not assured. The state can still burden the exercise of religion if it passes the so-called “compelling interest” test: The state can burden the exercise of religion where it has a compelling reason for doing so and has chosen the least restrictive means.

Smith is widely understood to have narrowed the circumstances in which religious believers can claim accommodations under the Free Exercise Clause. The fact that the Court has granted a petition that specifically asks the justices to reconsider the case is thus very significant. Even more: in a statement last term, four justices—Alito, Thomas, Gorsuch and Kavanaugh—hinted strongly that they were ready to revisit Smith, which, they said, had “drastically cut back on the protection provided by the Free Exercise Clause.” Quite possibly, the Court’s grant in Fulton signals that the Court is ready to overrule Smith.

If the Court were to overrule Smith, it would most likely hold that the compelling interest test applies to all claims for religious accommodations, including CSS’s. (This was, in fact, the law for decades before Smith). This, too, makes Fulton a significant case. The Court would have to decide whether Philadelphia’s interest in ending discrimination based on sexual orientation, in this context, outweighs the right of CSS to conduct itself according to its sincere religious convictions. So far, the Court has carefully avoided such questions, which could take the Court where it would rather not go. The Court had a chance to address a similar issue two years ago in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the wedding vendor case, but ultimately ruled on narrow grounds that made resolution of the issue unnecessary.

The Court might find a way to avoid the issue in Fulton as well. In that event, Fulton will be another one of the Court’s narrow, fact-bound church-and-state rulings. But it’s also possible that the case will be a major decision that makes other Roberts Court church-state cases pale in comparison. The Court won’t hear the case until next term, so there’s plenty of time to speculate! Meanwhile, for more on what the Fulton grant may mean, have a listen to the latest Legal Spirits podcast I recorded this week with my colleague at the St. John’s Center for Law and Religion, Marc DeGirolami.

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NSA’s call detail records program

The NSA’s effort to use call detail records to spot cross-border terror plots has a long history. It began life in deepest secrecy, became public (and controversial) after Edward Snowden’s leaks, and was then “reformed” in the USA Freedom Act. Now it’s up for renewal, and the Privacy and Civil Liberties Oversight Board, or PCLOB, has weighed in with a deep report on how the program has functioned – and why NSA has suspended it.

In this episode I interview Travis LeBlanc, a PCLOB Member, about the report and the program. Travis is a highly effective advocate, bringing me around on several issues, including whether the program should be continued and even whether the authority to revive it would be useful. It’s a superb guide to a program whose renewal is currently being debated (against a March 15 deadline!) in Congress.

And, uh, asking for a friend: Do the early stages of covid-19 infection make you more susceptible to persuasion?

Download the 305th Episode (mp3).

Take our listener poll at steptoe.com/podcastpoll!

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, families or friends.

from Latest – Reason.com https://ift.tt/3cQiT36
via IFTTT

SCOTUS Grants Cert in the Catholic Adoption Services Case

The Roberts Court has been on a tear in church-and-state cases lately. Last term, the Court decided an important case on public religious displays, The American Legion v. American Humanist Association. This term, the Court will decide a case on Blaine Amendments, Espinoza v. Montana Dep’t of Revenue (which I discussed in an earlier post); yet another case on the Contraception Mandate, Little Sisters of the Poor v. Pennsylvania; a pair of cases on the ministerial exception, St. James School v. Biel and Our Lady of Guadalupe School v. Morrissey-Berru; and a case on the personal liability of government officials under RFRA, Tanzin v. Tanvir. For a purportedly minimalist bench, the Court seems quite ready to rule on controversial law-and-religion issues.

Late last month, the Court granted cert in another church-and-state case, Fulton v. City of Philadelphia, which has the potential to overshadow all the others. In Fulton, Catholic Social Services (CSS) challenges Philadelphia’s decision to exclude the charity from the city’s adoption program because of CSS’s policy of refusing to place children with same-sex and unmarried heterosexual couples. Philadelphia argues, among other things, that CSS’s policy violates the city’s non-discrimination ordinance. In response, CSS argues that the city’s action violates the First Amendment’s Free Exercise Clause. In essence, CSS maintains that its religious convictions make compliance with the anti-discrimination ordinance impossible and that the city should grant it an exemption, or accommodation, for that reason.

What makes Fulton so significant, potentially, is this. The cert petition specifically asks the Court to revisit its landmark 1990 decision in Employment Division v. Smith, which held that the Free Exercise Clause does not entitle religious believers to exemptions from “neutral” and “generally applicable” laws. Under Smith, religious believers have an obligation to comply with such laws, just like everybody else. Only where laws are not “neutral” and “generally applicable”—where, for example, laws target religious believers for disparate treatment—can religious believers make claims for accommodations. Even then, accommodations are not assured. The state can still burden the exercise of religion if it passes the so-called “compelling interest” test: The state can burden the exercise of religion where it has a compelling reason for doing so and has chosen the least restrictive means.

Smith is widely understood to have narrowed the circumstances in which religious believers can claim accommodations under the Free Exercise Clause. The fact that the Court has granted a petition that specifically asks the justices to reconsider the case is thus very significant. Even more: in a statement last term, four justices—Alito, Thomas, Gorsuch and Kavanaugh—hinted strongly that they were ready to revisit Smith, which, they said, had “drastically cut back on the protection provided by the Free Exercise Clause.” Quite possibly, the Court’s grant in Fulton signals that the Court is ready to overrule Smith.

If the Court were to overrule Smith, it would most likely hold that the compelling interest test applies to all claims for religious accommodations, including CSS’s. (This was, in fact, the law for decades before Smith). This, too, makes Fulton a significant case. The Court would have to decide whether Philadelphia’s interest in ending discrimination based on sexual orientation, in this context, outweighs the right of CSS to conduct itself according to its sincere religious convictions. So far, the Court has carefully avoided such questions, which could take the Court where it would rather not go. The Court had a chance to address a similar issue two years ago in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the wedding vendor case, but ultimately ruled on narrow grounds that made resolution of the issue unnecessary.

The Court might find a way to avoid the issue in Fulton as well. In that event, Fulton will be another one of the Court’s narrow, fact-bound church-and-state rulings. But it’s also possible that the case will be a major decision that makes other Roberts Court church-state cases pale in comparison. The Court won’t hear the case until next term, so there’s plenty of time to speculate! Meanwhile, for more on what the Fulton grant may mean, have a listen to the latest Legal Spirits podcast I recorded this week with my colleague at the St. John’s Center for Law and Religion, Marc DeGirolami.

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