Month: April 2021

During the seemingly endless run-up to the last election, my partisan friends would often say to me, “politics is binary.” Their point is that voters only have two serious choices in any election, the Democrats or the Republicans. We need to pick a side and then, apparently, serve as cheerleaders for whatever that side is doing.

As a libertarian who doesn’t like either choice, I often scream in frustration. Baltimore Journalist H.L. Mencken succinctly captures my view of the reigning Democrats and Republicans: “Under democracy one party always devotes its chief energies to prove that the other party is unfit to rule—and both commonly succeed, and are right.” He believed that our political history is “simply a record of vacillations between two gangs of frauds.”

Few issues capture the fraudulent nature of modern politics more than civil-asset forfeiture. If I had a dime for every time a national politician mentions the Constitution, I could retire tomorrow along the California coast. My pockets would be empty if I collected that dime every time those same politicians demanded the reform of that forfeiture system that wantonly violates the Constitution’s principles.

Civil forfeiture laws allow police agencies to seize Americans’ homes, cars, and cash upon the suspicion that someone used the property in criminal activity—and without due process afforded to its owner. The courts file cases with odd names such as, “The United States Government v. a 2017 Ford Explorer.” The government targets the property—then forces owners to prove their innocence to get it back (and it’s a long and costly process to do so).

One need only do a little Google research to find endless appalling examples. In one Anaheim case, city and federal officials attempted to seize a $1.5 million commercial building after cops accused one of the owner’s tenants of illegally selling $37 worth of marijuana. Prosecutors ultimately dropped that case amid bad publicity, but California officials grab $100 million a year in such takings.

Most comes from ordinary (and usually low-income) people, not drug kingpins. If, let’s say, someone steals your $40,000 SUV and uses it in a drug deal, police can keep the vehicle because it—and not you—was involved in a crime. If you’re pulled over for speeding and police find $10,000 in cash in the glove compartment, they can assume that the money came from illegal activity and take it—even if it came from a legitimate transaction.

Many states have passed asset-forfeiture reform on a bipartisan basis. Recently, Arizona’s House of Representatives passed, on a 57-2 vote, a bill that would require that police obtain a conviction for an underlying crime before depriving people of their property. California passed a similar law in 2016. The Legislative Analyst’s Office has struggled to monitor its results because police agencies haven’t fully complied with its reporting requirements.

Unfortunately, state reforms aren’t enough because police agencies have concocted a clever workaround. They take people’s assets, then “partner” with federal agencies, which operate under a much broader standard. Then they split the loot. The problem is that the system provides perverse financial incentives.

“In the federal system and most states, the property that is seized and forfeited is not delivered to the federal or state treasuries, but instead is kept by the law enforcement agencies themselves,” argued a variety of liberal and conservative groups (including my employer) in a recent letter to Congress. They called for simple reforms—sending proceeds to the general treasury, eliminating partnering programs, and adding judicial oversight.

Both parties have terrible records on the topic. Despite his support from progressives who champion criminal-justice reform, President Joe Biden is the architect of the key drug-war law that set asset forfeiture loose on the general public. The Trump administration’s last two attorney generals (William Barr and Jeff Sessions) argued for expanded use of it. Democrats and Republicans are frauds on this issue, so it’s time for public pressure.

Police agencies insist that civil forfeiture laws are an important tool in fighting against drug cartels, but they rely solely on conjecture rather than data to make that case. When California was debating its reform, its police opponents publicly opposed it mainly because of what it might do to their budgets. Cry me a river on that one.

“It may be the oldest question in politics: what makes government legitimate?” wrote Timothy Sandefur, in a new report about asset forfeiture for the Arizona-based Goldwater Institute. “Or as the Christian thinker St. Augustine put it some 1,500 years ago, what distinguishes a state from a gang of criminals?…A government serves justice, not the private advantage of those in charge.”

If partisans ever set aside their political grudge matches for a moment, they might find common ground on reforming this unconstitutional system. Our political system might be binary, but here’s a good chance for some singularity.

This column was first published in The Orange County Register.

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Originally celebrated for the liberating ease with which people could use it to freely exchange information and ideas, the Internet is now under concerted attack for exactly that quality. In America, politicians and pundits fret over so-called disinformation, misinformation, and extremism, but they’re hardly alone. Across the Atlantic, the European Union is poised to ban “terrorist content” or, more accurately, anything it tags with that label. The end result will be to drive some information underground and to imperil online freedom of expression.

“The EU is working to stop terrorists from using the internet to radicalise, recruit and incite to violence,” the European Council announced on March 16. “Today, the Council adopted a regulation on addressing the dissemination of terrorist content online.” The announcement added that “[v]oluntary cooperation with the hosting service providers will continue, but the legislation will provide additional tools for member states to enforce the rapid removal of terrorist content where necessary.”

The proposed regulation, which faces a vote by the European Parliament at the end of April, defines “terrorist content” as anything that “incites” or “solicits” people to engage in terrorist acts, or to participate in terrorist groups. Also included is “instruction on the making or use of explosives, firearms or other weapons” or “other specific methods or techniques” for committing terrorist acts. Elsewhere, terrorism is very broadly defined to include not just violence, but “unduly compelling a government or an international organization.”

Internet companies informed by national authorities of the presence of forbidden information online would have one hour to remove it or block access or else suffer penalties established by individual EU member states. “Particularly severe penalties should be imposed in the event that the hosting service provider systematically or persistently fails to remove or disable access to terrorist content within one hour,” insists the Council.

“This could open the way for authoritarian regimes, like those in Poland and Hungary, to silence their critics abroad by issuing removal orders beyond their borders, effectively extending their jurisdiction beyond their borders,” warns a coalition of 61 organizations which condemned the proposed regulation in an open letter. “Because this must happen within the hour, online platforms will have no option but to comply with these orders to avoid fines or legal problems.”

Poland and Hungary are easy targets for the signers since their governments openly embrace authoritarianism. But they could have just as easily called out France, where the state is increasingly hostile to dissent and protesters took to the streets against a proposed security law, or Germany, which established a far-reaching model for online censorship world-wide.

The open letter also warns that giving companies all of one hour to suppress forbidden information means that they’ll inevitably turn to algorithms and filters to block as much potentially problematic material as possible before it gets online. European government officials won’t even have to act and face recriminations because their work will be automated by companies fearful of penalties. 

“Because it is impossible for automated tools to consistently differentiate activism, counter-speech, and satire about terrorism from content considered terrorism itself, increased automation will ultimately result in the removal of legal content like news content and content about discriminatory treatment of minorities and underrepresented groups,” the coalition objects.

The regulation specifies that there’s no obligation to automate the removal process, but the European Commission conceded to Euractiv that “given the considerable volume of content disseminated on many platforms, automated tools are needed to detect potential terrorist content.” Furthermore, the EU has pushed in the past for automatic detection and suppression of allegedly terroristic content. Robot censors may not be an “obligation” under the new law, but they seem to be an inevitable and desired (by officials) result.

In their insistence that what they deem to be “terrorist content” should be targeted and removed from the Internet, European officials sound much like the American politicians and commentators who’ve raised a chorus of complaints about online opinions and political expression that they find disturbing.

“[Q]uestions emerge about unrestrained free expression, long championed by First Amendment theorists as a benefit to society, no matter how ugly and hateful,” CNN Senior Writer Elliott McLaughlin sniffed after the Capitol riot. “Is allowing this type of expression ‘good’ for America?”

“We’re going to have to figure out how we rein in our media environment so that you can’t just spew disinformation and misinformation,” Rep. Alexandria Ocasio-Cortez (D-N.Y.) insisted in January.

The European Commission, in its missives, even shares many U.S. pundits’ concerns with strengthening “media literacy”—a slippery term that usually boils down to getting the public to interpret matters the same way as their self-appointed betters. The big difference between European officials and their American counterparts isn’t their intentions (always censorious in nature) but that much of the speech targeted by the EU is beyond the government’s reach in the United States.

The First Amendment and Section 230 protect much speech that would be banned elsewhere, and shield online platforms from liability for what others post, Jaclyn K. Haughom pointed out in a piece on the free speech implications of anti-terrorism efforts for the Freedom Forum Institute in 2016. U.S. “courts have found that certain types of political speech in support of foreign terror groups would not receive First Amendment protection, as such speech violated the Material Support statute,” she noted. “However, such legislation must survive a strict scrutiny analysis to avoid any constitutional concerns.” As a result, Haughom recommended that the government stick to advising social media companies and steer clear of constitutionally suspect mandates.

But EU officials are impatient with merely suggesting that online platforms boot suspected terrorists, and they are unrestrained by American-style free speech protections. There’s little to stop the EU from implementing a law that the civil liberties coalition of 61 organizations says “poses serious threats to freedom of expression and opinion, freedom to access information, the right to privacy, and the rule of law.” Whether Europeans’ speech will be subject to that threat comes down to a vote by lawmakers at the end of April.

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