Month: July 2018

The National Security Agency (NSA) has announced that it is deleting millions of phone and text records it has gathered since 2015, because it is holding a bunch of records it was not supposed to have.

Such discoveries are not unusual (which itself should be more of an outrage). The NSA previously stopped an entire type of record collection and retention (communications that were “about” a person of interest to the NSA) because the agency was getting its hands on private communication data it was not authorize to receive.

In this case, Congress passed the USA Freedom Act in 2015 to better control (and potentially limit) the NSA’s access to the metadata (that is, everything but the conversations’ actual content) of Americans’ communications. This reform was part of a backlash against the mass surveillance exposed by Edward Snowden, and the bill was passed after some privacy-minded lawmakers, such as Sens. Rand Paul (R-Ky.) and Ron Wyden (D-Ore.), forced a part of the Patriot Act to expire that was being used to justify mass amounts of domestic snooping.

Under the USA Freedom Act, the NSA no longer collects and combs through our communications metadata itself. Instead it now has to request records from telecommunications companies using strictly defined search terms. No more fishing expeditions. Allegedly.

The problem, as Charlie Savage of The New York Times uncovered, is that the telecom companies were accidentally sending too many records in response to NSA requests. And so the agency was receiving private personal information about Americans’ communications data that it neither asked for nor had the right to examine:

As a result, when the agency then fed those phone numbers back to the telecoms to get the communications logs of all of the people who had been in contact with its targets, the agency also gathered some data of people unconnected to the targets. The National Security Agency had no authority to collect their information.

“If the first information was incorrect, even though on its face it looked like any other number, then when we fed that back out, by definition we’d get records back on the second hop that we did not have authority to collect,” [an NSA spokesman] said.

This is a problem, and we don’t know how extensive it is as yet. The NSA requested more than 500 million telecom records just last year. It is unable to determine which records it has the authorization to collect, so it is purging all of them.

Earlier today, President Donald Trump weighed in with a tweet, unfortunately making it about himself:

Wow! The NSA has deleted 685 million phone calls and text messages. Privacy violations? They blame technical irregularities. Such a disgrace. The Witch Hunt continues!

— Donald J. Trump (@realDonaldTrump) July 3, 2018

This is not about Trump and it’s not about whether the FBI was appropriate or inappropriate in its surveillance and investigations of his former staff and their alleged ties to Russia. It’s about you and me and the government’s access to our private information and its poor management of this information. It may well be a disgrace. But it’s not part of the “Witch Hunt” that Trump believes is happening.

Trumpifying this NSA surveillance situation is a problem, because the environment of political polarization will inevitably lead to a situation where politically engaged people care only about how it affects Trump. Cato Senior Fellow Julian Sanchez rightfully tweeted out a worry that the response by the media could be to claim that this isn’t really a big deal since it doesn’t actually connect to the president. That would mean ignoring its effects on our own privacy.

Many of the same privacy-minded lawmakers who managed to force some of the surveillance authorities of the Patriot Act to expire also opposed the USA Freedom Act. Congressmen like Justin Amash (R-Mich.), Thomas Massie (R-Ky.), and Jared Polis (D-Colo.) voted against the bill because they believed it still gave the government too much power to collect our records without warrants. Sen. Paul rejected the USA Freedom Act for the same reason. He tweeted this response to Trump today:

The NSA should immediately cease collecting American citizens’ data without a warrant. Let’s stand up for the Fourth Amendment! https://t.co/aCyuIK8iM2

— Senator Rand Paul (@RandPaul) July 3, 2018

Unfortunately, Trump has shown that he’s perfectly fine with snooping on Americans without a warrant as long as those Americans aren’t his buddies. He happily signed a bill in January renewing and expanding the government’s authority to secretly spy on Americans under the Foreign Intelligence Surveillance Act Amendments.

Worries about corporate cash buying elections have far more to do with the candidates and causes that the money is being spent on than any principled objection to monied interests influencing votes. Nothing illustrates this better than the double standards applied to corporate donations to light rail ballot initiatives.

In May, a Nashville light rail ballot initiative went down in flames, with two-thirds of voters rejecting it. A month later, The New York Times published a story pinning the blame on Charles and David Koch, who supposedly sunk Nashville’s initiative and others like it just to line their own pocket books. (Disclosure: Charles and David Koch have also given money to the nonprofit that publishes Reason.)

In the two weeks since the Times story’s release, public transit boosters in the media have spread this narrative far and wide.

“Thanks for exposing the ulterior motives of the Koch brothers, who oppose public transit projects as their conglomerate reaps profits from oil and gasoline production,” wrote Paul P. Skoutelas, the president of the American Public Transportation Association, in a letter to the Times.

“Excellent story showing how Kochs push their oil biz interests, disguised as philosophy,” tweeted Jane Mayer, a writer at The New Yorker. “The willingness of big money interests to attack local transit proposals should be a warning to Massachusetts,” wrote Renee Loth at The Boston Globe. Similar takes made the rounds on such progressive-leaning websites as Daily Kos, Common Dreams, Jalopnik, and Streetsblog.

Meanwhile, a far more direct and clear-cut example of corporations reaping benefits from their involvement in light-rail politics was going completely unnoticed.

A couple days after the Times piece hit newsstands, Phoenix’s Valley Metro transit agency announced that it was awarding a design contract for its 1.5-mile Northwest Phase II light rail extension to Jacobs Engineering Inc. The value of the contract has not been disclosed. What has been disclosed is Jacobs’ donations to the ballot initiative that made its new contract possible.

In 2015, the firm gave $10,000 to support Prop. 104, a transit initiative that boosted Phoenix’s sales tax to pay for building out its then-20-mile light rail network. Flush with Prop. 104–provided cash, the Phoenix City Council voted in 2016 to accelerate the Northwest Phase II timetable, and with it the need to take on contractors like Jacobs.

This kind of self-serving corporate activism in the norm for a firm like Jacobs. In 2016, for example, the company gave $50,000 to support Los Angeles’ Measure M, which approved $120 billion in spending on public transit improvements in the next 40 years. The measure passed with nearly 70 percent of the vote, and Jacobs is already cashing in. In 2017, the company was named as a subcontractor for “program management support services” for Measure M projects.

Plenty of other firms engage in this kind of behavior. The engineering consultants Parsons Brinckerhoff Inc. also donated $200,000 to support Measure M. The measure has since provided funding for a light rail extension the company had been hired to work on.

Another repeat donor is the engineering firm Siemens, which gave $5,000 to Phoenix’s Prop. 104 and has since been awarded a $57.9 million contract by Valley Metro to supply 11 light rail cars. A similar story played out in Seattle, where Siemens donated $50,000 to the city’s 2016 Sound Transit 3 ballot initiative, which would spend $54 billion adding 62 miles of light rail. The initiative passed, and Siemens then nabbed a $155 million contract to supply 30 new rail cars to the network.

Almost 90 percent of transportation ballot initiatives won in November 2017. Nearly 70 percent garnered voter approval in 2016. The years 2013, 2014, and 2015 all show the pass rate for public transit ballot initiatives hovering just above 70 percent. Given that these initiatives involve usually-loathed tax increases, this is a remarkable feat—one made possible in part by comically lopsided funding ratios between the “yes” and “no” campaigns.

Phoenix’s Prop 104 campaign saw the official “yes” campaign committee receive a little over $1 million in donations from contractors, engineering firms, trade unions, and others. The only two registered “No” campaign committees received about $4,000 combined.

The same goes for Seattle’s Sound Transit 3 initiative. The Seattle Times reported in October 2016—two weeks before voters went to the polls—that the pro–Sound Transit 3 side had scooped up over $3 million in donations, about 10 times more than the $300,000 opponents had been able to scrape together.

Los Angeles’ Measure M election saw $36,000 donated to the official No campaign. The Yes side received donations in excess of $10 million.

One might think that this repeated sequence of events, whereby corporate donors spend big on one-sided public transit campaigns and then ink contracts to build said transit, would provoke at least a little bit of concern from commenters who frame their criticism of anti-light rail campaign spending in terms of opposition to undue corporate influence.

Yet news about who gets the contracts to build light rail networks after the votes have been counted rarely appear outside trade publications. These stories certainly don’t appear on the front page of The New York Times. Should saintly light rail win on election day, that’s obviously the will of the people. Only when this anointed transit option loses do we need to go asking questions about what nefarious puppet masters deceived the voters.

A federal judge has blocked Tennessee’s practice of suspending driver’s licenses for unpaid court fees without first determining if the debtors are too poor to pay. The policy, U.S. District Judge Aleta Trauger ruled yesterday, violates poor residents’ due process and equal protection rights under the 14th Amendment.

“[A]s applied to indigent drivers, the law is not merely ineffective; it is powerfully counterproductive,” Trauger wrote. “If a person has no resources to pay a debt, he cannot be threatened or cajoled into paying it; he may, however, become able to pay it in the future. But taking his driver’s license away sabotages that prospect.”

Trauger ordered the state to cease suspending licenses for unpaid court debts and to give all residents who had their licenses suspended for such reasons an opportunity to have them reinstated.

License suspensions for unpaid court fines, drug violations, and other non-moving violations came into the spotlight in 2014 following the police shooting of Michael Brown in Ferguson, Missouri. Investigative reporting revealed the town’s rapacious use of fines and fees to generate revenue, sparking a nationwide look at how cities use petty fines and fees.

Many states across the U.S. passed license suspension laws to go after scofflaws, but civil liberties groups say they often trap poor residents in a debt spiral by depriving them of the means to make money in the first place.

The two lead plaintiffs of the case, James Thomas and David Hixson, were physically disabled and living in a homeless shelter, respectively. Both had their licenses suspended for unpaid court fines.

States across the country have suspended more than 7 million licenses, according to The Washington Post. Virginia alone suspends 900,000 licenses—11 percent of its total population—at any given time for unpaid fines and fees.

Tennessee suspended 146,211 licenses for unpaid court fines and fees between 2012 and 2016, according to the lawsuit. That doesn’t include suspensions for unpaid traffic fines.

Trauger’s decision was not a surprise. The judge lambasted the state’s policy in earlier decisions in a parallel case challenging suspensions for unpaid traffic fines—one commanding Tennessee to immediately reinstate the licenses of two lead plaintiffs, and the other allowing the lawsuit to proceed as a class action.

In both, Trauger wrote that the practical effects of Tennessee’s license suspension policies appeared to be at complete odds with the rules’ stated purpose—that is, collecting debt.

“Taking an individual’s driver’s license away to try to make her more likely to pay a fine is not using a shotgun to do the job of a rifle: it is using a shotgun to treat a broken arm,” the judge wrote last year.

Trauger noted that Tennessee towns and cities are “pervasively structured” around motor vehicles, and that one didn’t need “reams of expert testimony to understand that an individual who cannot drive is at an extraordinary disadvantage in both earning and maintaining material resources.”

In January, another federal judge in Michigan enjoined the practice when it is applied to the very poor, ruling that suspending licenses without determining the debtors’ ability to pay likely violates due process.

A lawsuit challenging Virginia’s policy was dismissed on technical grounds last year but still spurred the state to reform its practices. Nevertheless, Virginia still suspended nearly 1 million licenses last year.

The Tennessee lawsuit was brought by Civil Rights Corps, a group challenging bail policies and license suspensions in several states, as well as by the National Center for Law and Economic Justice, Just City, and the law firm Baker, Donelson, Bearman, Caldwell and Berkowitz.

“This is an incredible victory for low-income Tennesseans whose contact with the criminal system leaves them saddled with court debt and unable to get around in a state that lacks adequate public transportation​,” Civil Rights Corps founder Alec Karakatsanis said following the ruling. “Today, one immense barrier to escaping the cycle of poverty and criminalization has been removed​—people will be able to go to work, see their families and friends, get to the grocery store and doctor’s office, and do all of the things that we all take for granted and that give life meaning.​”

The Fairfax County Police Department (FCPD) posted a note on Facebook yesterday about a man who texted one of their officers “offering to sell them marijuana.”

“HMU if you wanna get together I’ve got some nice ins we can burn,” the text message read. The unidentified suspect obviously had the wrong number, but that didn’t stop police from pursuing the case further.

After setting up a meeting with the suspect, narcotics detectives were able to make an arrest, having discovered “more than a pound of marijuana” in the alleged dealer’s possession, according to the Facebook post. Authorities searched his home and found not only another pound of marijuana, but also “suspected Schedule I Narcotics, a firearm, and an undisclosed amount of money.” The suspect was charged with possession with intent to distribute.

Social media fame aside, it’s not clear what good came out of this story. A man seems to have made a dumb mistake, and police were quick to pounce. Had he been trafficking human beings instead of marijuana, perhaps the cops’ enthusiasm would be justified. But as it stands, all they really did was keep two pounds of weed off the street.

Marijuana is legal for recreational use in nearby D.C, as well as in nine states, so this man might not have even gotten in trouble in some places in the U.S.

It’s not the first time the FCPD has posted stories like this to its Facebook page—they seem to enjoy bragging about catching the dumbest and most unlucky lawbreakers. In March, the department released in-car footage of a man who, while being chased by police, jumped out of his car but forgot to put it in park. As a result, he was run over by his own vehicle:

President Donald Trump’s Justice Department plans to roll back a pair of Obama-era affirmative action decrees that pushed colleges to consider race as a factor in admissions.

The new guidance, which discourages race-based admissions, will essentially reconstitute the approach the federal government took under George W. Bush. The Bush administration had sternly reminded schools that they could consider race in admissions only if they had absolutely no other method of achieving diverse classrooms. This was consistent with Supreme Court precedent that has permitted affirmative action but narrowly limited its use.

But Barack Obama’s administration, in 2011 and 2016, issued recommendations that encouraged schools to think of diversity as a compelling state interest and to embrace race-based admissions as a tool to achieve it. This wasn’t necssarily at odds with Court precedent, but it very well could have sent a message to schools that diversity at all costs was the top priority.

The Trump administration’s decision was first reported by The Wall Street Journal. The Justice Department—which had been tasked with “re-evaluating” past policies that were considered legally suspect, according to The New York Times—is taking the lead here, though the decision impacts the Education Department. A spokesperson for the Education Department has confirmed to me that the administration is returning to the Bush-era position, per the new guidance.

Progressives will see this move as a deliberate attempt to weaken affirmative action at a time when race-based admissions policies are coming under serious scrutiny. Asian students who say they were denied admission to Harvard because its policies discriminate against them on the basis of skin color have sued the university. That lawsuit recently forced Harvard to pull back the curtain with respect to its admissions information, revealing that officials consistently underrated Asian applicants on subjective criteria like “personality,” even though Asians tend to outperform other applicants in virtually every respect.

The Harvard lawsuit is really just making an uncomfortable truth more obvious: When admissions officials discriminate in favor of one racial group, they must discriminate against other racial groups. This is wrong and legally suspect. It’s an issue a post-Kennedy Supreme Court should certainly revisit. In the meantime, the Justice and Education departments deserve commendation for distancing themselves from a policy that is racially discriminatory to its core. Good riddance.