April 27, 2020

What Trump Can Teach Us About Con Law, ep. 40: 'COVID and Jacobson'

[Cross-posted from "What Trump Can Teach Us About Con Law"]

By Elizabeth Joh

In mid-April, 2020, states began to explore ways to reopen their economies amid the global coronavirus pandemic. But with states devising their own paths forward, many are wondering what powers the government has, even during a national emergency. Are the states violating our civil liberties by enforcing these lockdowns? To answer this question, many legal scholars are looking to a 115-year-old Supreme Court case, Jacobson v. Massachusetts, for answers. Listen

March 19, 2020

What Trump Can Teach Us About Con Law, ep. 39: 'Quarantine Powers'

By Elizabeth Joh

[Cross-posted from Trumpconlaw.com]

During a health crisis, what is the government allowed to do? As the novel coronavirus spreads across America, there have been closures and lockdowns across the country. In this episode, we look to history to understand who has the power to quarantine, and how the office of the president can be used to slow down a pandemic. Listen to episode 39 of the '"What Trump Can Teach Us About Con Law" podcast 

 

March 19, 2020

Yes, states and local governments can close private businesses and restrict your movement

[Cross-posted from Politico]

By Elizabeth Joh

Can the state tell your favorite local restaurant to close, or tell you that you must stay at home unless it’s absolutely necessary to leave, because of an emergency? The governors of New York, New Jersey and Connecticut have closed down bars, movie theaters and dine-in restaurants. Six counties in the San Francisco Bay Area have imposed a shelter-in-place order that allows people to leave their homes only for essential activities.

In response to these drastic measures intended to slow down the spread of coronavirus, there are plenty of voices on social media, and even some in government, denouncing such measures as unprecedented, un-American and unconstitutional. Most of us have never imagined such impositions outside of a situation of armed conflict, but allegations that those measures in the current circumstances are unlawful are wrong. And this is a case where legal misinformation can exacerbate a public health crisis.

States—and their cities and counties by extension—possess what has long been known as a “police power” to govern for the health, welfare and safety of their citizens. This broad authority, which can be traced to English common law and is reserved to the states by the 10th Amendment, is far from radical; it justifies why states can regulate at all.

The police power of the states has been invoked on multiple occasions by the Supreme Court, often in contrast to the limited powers of the federal government—for example, in Chief Justice John Roberts’ opinion in the 2012 Obamacare case. This power also has been recognized in the context of public health for decades. In a 1905 Supreme Court case that upheld mandatory smallpox vaccinations, the court observed that “upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”

What does this mean for the drastic coronavirus responses we’re seeing across the country? State and local governments can indeed decide to force even unwilling businesses to shut down, require people to stay mostly at home, impose curfews and even threaten noncompliance with arrest if necessary. (Thankfully, with COVID-19, we have so far seen mostly peaceful, even if begrudging, compliance to “flatten the curve” so that our health care workers and hospitals are not overwhelmed.) But, you might ask, don’t I have individual rights, even in a pandemic? Of course you do. We possess constitutionally protected rights to assemble and travel, for instance. State and local governments must be careful to make sure that measures they impose to protect people are not overly broad and are taken only for justifiably important reasons.

Our legal history is filled with cases where government has had insufficiently important reasons to justify restrictive measures, or where the measures themselves are overly broad. Or even cases where government restrictions turn out to have been implemented for impermissibly discriminatory reasons, such as when the city of San Francisco targeted only its Chinese residents in a bubonic plague outbreak in 1900. Not all exercises of the police power will withstand constitutional scrutiny.

But the very existence of this framework—the balance between the need to protect the public and individual rights—assumes that there will be times when there are truly compelling emergencies justifying severe measures. A global pandemic that spreads even among those who are asymptomatic and could exceed the capacity of the American health care system would appear to be just such a compelling situation.

When prominent voices tell the public that these drastic measures are somehow inherently unlawful or obviously unconstitutional, they detract from the social solidarity we need right now. People who are misled about what the government may do, and confused about its established powers, might not take heed of the necessary measures to protect their own health and that of their communities.

At some point in the future, we could see a coronavirus response that has gone on too long or is too broad to justify its burdens. Or we might see instances of people who were denied civil liberties without real justification. Even now, you might feel that these measures are too little, too late, or that they are drastic, and burdensome. But if we are facing a window of opportunity that is rapidly closing, to say that the states cannot try to use their most basic authority to save lives is not only wrong—it might be deadly.

 

February 24, 2020

'What Trump Can Teach Us About Con Law,' Episode 38: Prosecutorial Discretion

[Cross-posted from “What Trump Can Teach Us About Con Law”]

By Elizabeth Joh

Prosecutors recommended that Roger Stone, an associate of Donald Trump, be given a heavy penalty after being convicted of seven felony counts, including lying to authorities. But after intervention from the Justice Department, and tweets from the president, he’s getting three years and four months in jail, much less than what the prosecutors asked for. What can his case tell us about presidential interference and prosecutorial discretion?

January 27, 2020

'What Trump Can Teach Us About Con Law,' Episode 37: War Powers and Impeachment Update

[Cross-posted from Trumpconlaw.com]

By Elizabeth Joh

After Donald Trump ordered the killing of Iranian general Qasem Soleimani, many wondered if the two countries were on the brink of a major conflict. This incident is only the latest in the longstanding fight between Congress and the president over who has the power to make war, and if an act of violence against another state can be legitimate without congressional approval. This episode also includes an update on the Senate impeachment trial of Donald Trump, which began earlier this week.

January 7, 2020

'What Trump Can Teach Us About Con Law,' Episode 36: Bribery

[Cross-posted from Apple Podcasts]

By Elizabeth Joh

Bribery is one of the three offenses listed in the Constitution as grounds for impeachment. Even though allegedly attempting to bribe Ukraine is the act that precipitated Trump’s impeachment, it’s not explicitly listed in the articles of impeachment. Why is that?

November 19, 2019

'What Trump Can Teach Us About Con Law,' episode 35

By Elizabeth Joh

[Cross-posted from Apple Podcasts]

Episode 35 of "What Trump Can Teach Us About Con Law" explores the Confrontation Clause of the Sixth Amendment, and whether it gives President Trump the right to meet the Ukraine whistle blower face to face.

Listen to the podcast

October 22, 2019

What Trump Can Teach Us About Con Law, Ep. 34: 'Foreign Affairs'

[Cross-posted from Apple podcasts]

By Elizabeth Joh

Donald Trump says he should not be impeached as president, since there was "no quid pro quo" on a phone call where he asked the Ukrainian president to investigate a political rival, former Vice President Joe Biden. But does quid pro quo need to be explicitly stated to be a legal issue? And can private citizens like Rudy Giuliani represent America on foreign policy issues? Listen to the latest episode of What Trump Can Teach Us About Con Law.

September 30, 2019

The Rise of Networked Vigilante Surveillance

[Cross-posted from Slate]

By Elizabeth Joh

Neighbors have always been able to spy on you. Watchful eyes behind curtains eventually turned into security cameras on porches. But these forms of self-protection have always been limited to what people can see and identify. But what happens when you fuse startup culture, artificial intelligence, and fearful neighbors? Call it the rise of networked vigilante surveillance. And we’re not prepared for it.

A new venture called Flock Safety is a good example of the problem. The Atlanta-based company sells a particular vision of security: Residents can track every single car that passes through their neighborhood with the help of the company’s automatic license plate readers. As the Los Angeles Times recently reported, a two-year contract entitles you to the cameras, cloud storage for the data, and, most importantly, software that allows quick identification of license plates—completing a task in seconds that would take a person hours or days. (It’s not necessary for a whole neighborhood to agree to adopt the system, as long as some neighbors agree to pay for it.) If a crime happens within the neighborhood, residents can check and see which cars were captured by the cameras in the area at the time. Imagine being able to produce a detailed map of one car’s whereabouts. Residents can send videos to the police, and the police can presumably request data from residents. Although the data is stored on the company’s servers, residents own the data, according to the company’s website.

In this way, suspicious neighbors are just catching up to the police, repo agents, and property managers, who already have access to license plate readers that can capture data at rates of thousands of plates per minute. Flock essentially tells potential customers: If these are useful tools for safety, shouldn’t individuals and communities have them, too? And like many other surveillance products sold to the police and the public, it promotes surveillance as a service with a for-profit motive. The company begin as a 2017 Y Combinator startup and has since raised millions in venture capital funding from Peter Thiel’s Founders Fund, among others. Its website promises to “increase solvability around crime with infrastructure-free [automatic license plate readers] in your community.”

The drive to move fast and sell quickly is especially ill-suited to a product of mass surveillance controlled by your neighbors. Maybe your neighborhood would have a trusted group soliciting input from everyone about how to run its ALPR network before signing up. Or maybe it wouldn’t. Maybe your systems administrator is the most ethical person on the block. Or maybe you grant everyone in the neighborhood access to the footage, as Flock permits. Flock provides a product; it doesn’t provide training in the law or in ethics. Nor would we expect it to—civilians aren’t law enforcement professionals.

But unleashing an automatic license plate reader system to groups of private citizens with a handshake and a contract means these systems are ripe for abuse. Once some residents in your neighborhood can track every license plate, they will face some unsavory temptations. Imagine a neighbor who wants a shot-by-shot map of the whereabouts of a spouse, a neighborhood child, or an unconventional resident. Or someone who wants to count the times your “suspicious” friends have come to visit the neighborhood. While automatic license plate reader cameras are sold as a crime prevention measure, there’s nothing to stop their use as tools of harassment or stalking.

And sometimes the software will be plain wrong. There is little for the wrongly accused people to clear their names. As for Flock? It’s not the company’s problem. As its head of marketing states, using the software inappropriately would be a “breach of contract.” But that is hardly a mechanism for accountability.

These new technologies prey upon familiar fears and hyper-charge them with the power of surveillance.

There seems little to stop those impulses from becoming even worse when social media can amplify some of our worst social traits. Why not collect lists of “suspicious” cars and plates and post them on Facebook or NextDoor? Why not combine these lists with videos from Ring video doorbells? If you’re the lone neighbor who doesn’t want any part of this, you have little choice other than to leave your community altogether. That is, if you even know your neighbors have installed an ALPR system.

The direct marketing of such products to individuals raises perhaps the most worrisome concern: encouraging vigilantism. These extralegal movements, organized to take the law into one’s own hands, have long been with us. Think back to Bernie Goetz in 1980s New York, the North Ward Citizens’ Committee in 1960s Newark, and even further back to the San Francisco Vigilance Committee of 1856. Or just remember the tragic circumstances of Trayvon Martin’s death at the hands of George Zimmerman, who was a neighborhood watch volunteer. Now imagine a community automatic license plate reader network that issues a BOLO (“be on the lookout”) for a particular car. Then what?

Vigilante justice arises when people feel the usual methods of addressing crime are broken or flawed. In his classic 1975 study “Strain of Violence,” historian Richard Maxwell Brown observed that American vigilantism is an indigenous and deeply rooted part of our shared history. We have a lot of experience with private citizens meting out their own versions of justice, and it is largely an ugly one.

These new technologies prey upon familiar fears—that local police ignore or dismiss crimes important to neighbors—and hyper-charge them with the power of surveillance. The potential concerns they raise are similar to the ones we see as law enforcement agencies and private corporations adopt these tools, but with even fewer guardrails. Neighborhoods armed with Ring videos, Flock readers, and NextDoor posts have the power to create networked engines of suspicion, sometimes ill-founded or erroneous, that may embolden residents to take actions they should not.

And even if neighborhoods armed with ALPR do nothing more than watch and post, the harms are significant nonetheless. The erosions of our privacy are coming from the government, corporations, and now our neighbors.

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.

 

September 23, 2019

'What Trump Can Teach Us About Con Law,' Episode 33: Obstruction

By Elizabeth Joh

Episode 33 of the podcast "What Trump Can Teach Us About Con Law" takes on the topic of obstruction of justice, in regard to the Mueller investigation and Donald Trump, with a dash of the Martha Stewart case thrown in.

Listen here

 

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