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According to court records from an arson case in Florida, Google regularly provides information to law enforcement about people that search a particular term or physical location using a Google service like Google Search or Google Maps. Information such as the the IP address. Typically, if police have an interest in requesting the search history of one particular suspect, they have to get a warrant. What they do now instead is request a list of information on all those that searched a particular keyword in a particular timeframe and use that to build a list of suspects by corresponding IP addresses to real identities. The barrier that faces the latter type of warrant is much more than the former. Here, Google was asked for:

users who had searched the address of the residence close in time to the arson.

In this particular arson case, the police got the IP address of the suspect from the wide net data request from Google, then associated that IP address with a particular phone number belonging to the suspect. Police were then able to use that known phone number to get location data records from the phone providers cell towers which corresponded to the arson location. They didnt get the phones location data or GPS coordinates as reported by the phone, they got the location data as reported via cell tower data.

On Googles end, they state that these warrants are complied with but the company always pushes for narrower requirements to protect the privacy of more users. The exact contents of the warrant are still sealed, so we dont know for sure just how many people had their privacy violated. Googles Director of Law Enforcement and Information Security, Richard Salgado, stated:

We require a warrant and push to narrow the scope of these particular demands when overly broad, including by objecting in court when appropriate. These data demands represent less than 1% of total warrants and a small fraction of the overall legal demands for user data that we currently receive.

No matter how narrow Google can get a warrant to be, the fact that innocent people can be scooped up in dragnet surveillance techniques like this is heinous. The fact that these warrants are even allowed to be granted is the real issue at hand. The fact of the matter is, keyword warrants violate the Fourth Amendment of the US Constitution. Albert Fox Cahn, executive director of the Surveillance Technology Oversight Project, told CNET:

This keyword warrant evades the Fourth Amendment checks on police surveillance. When a court authorizes a data dump of every person who searched for a specific term or address, its likely unconstitutional.

Keyword warrants are very similar to reverse location warrants or geo-fencing warrants which law enforcement use to get lists of people that were within a specific geographic area during the time of a crime. The thing is, a federal court has ruled that reverse location warrants violate the Fourth Amendment. Police are switching their tactics to deal with that hiccup by falling back to their tried and true method of keyword warrants. Google declined to comment to CNET about how many keyword warrants theyve received in the last three years. How about the last twenty years?

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Google gives IP addresses to police of people who have searched particular keywords or addresses - Privacy News Online

According to a June 2020 poll, more than two-thirds of Americans say that the criminal justice system needs either major changes or a complete overhaul. How would four more years of President Donald Trump or a first term of Joe Biden affect that system? Heres an overview of where they stand on criminal justice reform.

Though a movement to defund the policeand reinvest that money in education, jobs, housing, and so onhas gained popularity this year, Biden has rejected those calls, saying that he will not take away funding from police departments. Instead, he has proposed investing more in Community Oriented Policing Services (COPS), a Department of Justice office that awards grants to hire more officers, and for community policing training. According to Bidens website, he plans to invest $300 million in the COPS program, with the condition that the hiring of police officers reflect the racial diversity of the communities those officers will serve.

By providing training on community policing, the COPS office aims to build better relationships between police and the communities they serve and find ways for them to work together, rather than against each other. While the DOJ says research shows community policing reduces crime, criminal justice advocates take issue with the idea that trust and collaboration between the police and the public is enough to fix systemic issues.

The Trump campaign, on the other hand, does not lay out any policy plans for the next four years. Trump has publicly criticized the idea of defunding the police, but throughout his presidency, he has actually proposed federal funding cuts for police departmentsincluding a 58% cut to the COPS program proposed in February 2020and withheld federal policing money through policies that targeted sanctuary municipalities.

This doesnt mean Trump actually supports the move to defund police, though. Its true that the Trump administration hasnt supported [the COPS office] or its efforts to support local policing, but thats not because the Trump administration thinks that police departments should have less powers or should operate less violently, says David Alan Sklansky, a professor at Stanford Law School and faculty director of the Stanford Criminal Justice Center. Its just because he doesnt want to spend as much money.

Riot police line up facing protestors near the White House on June 1, 2020. [Photo: Roberto Schmidt/AFP/Getty Images]When it comes to police reforms and addressing issues of police misconduct, Trump did sign an executive order in June, following the police killing of George Floyd, that would provide federal grants to improve police training, including higher standards on the use of force, and create a database to track officers with misconduct complaints, though it does not seem to have created any major changes since. Democrats criticized the order for not going far enough; it allows exceptions to a chokehold ban and does not include any restrictions for no-knock warrants. Before the presidents order, House Democrats had introduced a police reform package that includes limiting the use of qualified immunity and banning chokeholds outright. That package passed in the House at the end of June.

Biden says hell address police and prosecutor misconduct by expanding the power of the Justice Department using pattern-or-practice investigations, which allow the government to investigate and sue police departments that engage in pattern or practice of excessive force, Fourth Amendment violations, discriminatory policing, and so on. In such an instance, the Justice Department wouldnt be suing for monetary damages, but for injunctive relief, a court order to stop such behavior. The use of that authority was dramatically rolled back during the Trump administration, Sklansky says. The Obama administration conducted 25 such civil rights investigations into police forces across the country. Under Trump, the Justice Department has opened just one, and its still ongoing three years later without results to show.

Trump has repeatedly pointed to Bidens work on the 1994 crime bill, accusing the former vice president of setting Black Americans back big time.' Biden did help write the bill, which critics have said contributed to mass incarceration. Biden has played down its impactthough his running mate, Sen. Kamala Harris, says it did contribute to mass incarceration. In June, Biden saidthat voters questions about his role with that bill were legitimate, but that he hopes people judge him on his current actions.

In this campaign, Biden has talked about the need to reduce the number of people who are incarcerated, and says that as president he would create a $20 billion grant program to push states to move away from incarceration and toward prevention efforts, like investments in education through pre-K, Title I funding for schools that serve students from low-income families, and expanded funding for mental health and substance abuse services. In order to access that funding, per the Biden website, states will have to eliminate mandatory minimums for non-violent crimes, institute earned credit programs, and take other steps to reduce incarceration rates without impacting public safety.

Biden has also outlined plans to decriminalize cannabis and expunge prior cannabis convictions, as well as end all incarceration for drug use alone and divert those people instead to treatment. He also announced a goal to ensure 100% of formerly incarcerated people have housing when they are released from prisona lack of which can affect how likely they are to reenter the criminal justice system.

Bidens work on that 1994 bill, Sklansky says, was a product of the tough on crime ideals of that time period, noting that there was a bipartisan push starting in the 1980s to toughen criminal penalties. But I think [Biden] recognizes that times have changed, and public sentiment has changed, he adds. I think theres a bipartisan recognition that the country veered way too far in the direction of tough on crime, and that criminal justice policies became vastly too punitive and too bloated. The [former] vice president recognizes that too, hes part of this broad bipartisan reconsideration of criminal justice, and the president is not.

Trump did sign into law the First Step Act, which has shortened some mandatory minimum sentences and given judges the discretion to skirt those mandatory minimums. By its one-year mark, the act helped more than 2,000 people with sentence reductions that average nearly six years, according to the Sentencing Project. Still, its been criticized for not going far enough. The First Step Act was a good first step, but it was only a first step, Sklansky says. The president hasnt shown any indication to follow up on that. I dont think we can expect a significant rollback of mass incarceration under Trump. In his speeches and rhetoric, Trump has pushed for law and order and a need to be tougher on crime. In June, he threatened maximum prison sentences for anyone who attempted to vandalize or topple monuments.

Criminal justice advocates have long harshly criticized the conditions and practices within U.S. prisonsfrom solitary confinement to the lack of educational opportunitiesfor being both inhumane and ineffective. Biden has pledged to overhaul some prison practices, including ending the use of solitary confinement (with very limited exceptions, per his campaign site, such as when protecting an incarcerated persons life) and requiring states to fix environmental health problems, like a lack of clean water, in their prison facilities.

Under Biden, federal criminal justice grants would also be conditional on the care given to women, especially pregnant women, who are incarcerated. Bidens website doesnt specify what such care would require, only that it be an adequate provision of primary care and gynecological care. He has also said he wants to work with Congress to eliminate the federal death penalty, and that all incarcerated people should have the chance to earn a GED diploma (though a policy plan to reach that goal is unclear).

The First Step Act under Trump did include efforts to improve conditions for incarcerated pregnant women, including banning the use of restraints during labor and recovery. When it comes to solitary confinement, Trump hasnt publicly opposed the practice, and under his administration, the Office of Juvenile Justice and Delinquency Preventions website has removed guidance that urged states to stop putting children in solitary confinement.

Biden has more criminal justice reforms outlined on his campaign website, including measures to stop corporations from profiting from incarceration, and a plan to end cash bail. (Trump has criticized efforts to end cash bail, even falsely saying that New York Governor Andrew Cuomo ended cash bail, making the crime rate go through the roof.)

Ultimately, Sklansky sees a stark difference in the future of criminal justice depending on who wins the presidency. When the president says, I am your law and order president, what he means is I stand for fewer restrains on the police, more police use of force, more forceful policing, and I think we can expect more of that. I think that we can expect only token efforts to reduce mass incarceration, he says. If Biden wins, you can expect an emphasis on community policing, and a greater effort to hold police departments responsible and accountable for excessive violence and other violations of constitutional rights. The [former] vice presidents made clear he would work much more energetically than President Trump to reduce levels of mass incarceration, and made it clear he would restore traditions of independence and professionalism in the Department of Justice.

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Where Trump and Biden stand on the future of policing - Fast Company

By Crime and Justice News | October 13, 2020

New York City plainclothes officers often leave unmarked cars to stop mostly Blacks and Latinos and demand their IDs, charges a federal class-action lawsuit. In cases cited in the lawsuit, officers stopped and searched people in mostly poor communities, then, even after finding no unlawful items on them, demanded to see identification. Officers sometimes told the suspects that they were looking for guns and ran their IDs to search for arrest warrants or possibly matches in other law enforcement databases, including ones tracking alleged gang affiliation or connections to open cases. Police ran those checks without any basis or reasonable suspicion, making temporary detentions and digital searches unconstitutional, the lawsuit claims, The Intercept reports. By exploiting surveillance technology, the NYPD has replaced traditional and largely discredited police practices such as stop-and-frisk with invasive digital searches that rely on surveillance systems, the complaint says.

They have nothing besides the fact that these are young men in certain neighborhoods, said Cyrus Joubin, an attorney for the plaintiffs, arguing that the practice violated the Fourth Amendment, which protects against unreasonable searches, and the 14th, which prohibits racial discrimination. They have at most a baseless hunch and theyre just going on a fishing expedition. The practice appears to be sanctioned by the police department, the lawsuit notes, with officers sometimes telling the individuals they stopped that they were just following procedure. The lawsuit accuses department officials of failing to train and supervise officers on the legality of these searches. Its just common practice for them to run warrant checks on the vast majority of people whom they stop, said Molly Griffard of the Legal Aid Societys Cop Accountability Project.

Originally posted here:
Lawsuit Charges Unlawful Digital Stop-and-Frisk in NYC - Crime Report

(Editors Note: This article is part of aJust Securityseries in conversation with the new book,The President and Immigration Law, byCristina RodrguezandAdam Cox. The series will bring together expert voices on immigration policy and reform to reflect on the book and to chart a path toward a more sustainable and balanced immigration system. All articles in the series can be found here).

The President and Immigration Law is a book of great importance as we consider near and long term alternatives after a long period of intensifying immigration enforcement. Adam Cox and Cristina Rodrguez offer an original and convincing argument that Congress has given the executive branch wide ranging enforcement powers of which the executive has taken full advantage. Their rich historical account is organized around two distinct geographies, interior enforcement (including deportation) and external enforcement (including admissions and, to some extent, the border ). This is appropriate for many issues, but it leaves neglected the U.S. border regions, especially the land border with Mexico, characterized by exceptional discretion and lack of enforcement restrictions. Legitimate trade and travel at borders, which are vital to the U.S. borderland economy and society (and indeed much of the interior) also need attention, as the extraordinary discretion and enforcement powers of the borderlands impact licit flows as well as illicit. To be fair, The President and Immigration Law does touch on some borderland issues in their coverage of border patrolling. Butconsistent with Cox and Rodrguezs analysismore remains to be said.

Life on the Border

The U.S. side of the borderlands has a large resident population, with over three-quarters of them U.S. citizens. While there is no single definition with easily accessed data, an often-used metric, all the U.S. counties that touch on the Mexican border, had 7.8 million people in 2019 (calculated from the U.S. census by the author). Of this, 56.4 percent is Hispanic. Immigration policing in this region with reduced restrictions can justifiably be characterized as racialized (especially because, as we will see, people of Mexican-origin are legally and practically profiled). Some of what I say applies also, but in less intensive form, to the Canadian land border and all ocean (and Great Lakes) borders.

Search and Seizure Discretion in the 100-Mile Zone

A 100-mile deep border zone brings a number of impingements on rights that profoundly impact life beyond the crossing of the actual boundary; here the enforcement discretion that Cox and Rodrguez discuss is at its zenith. In the U.S.-Mexican borderlands it is implemented through a chain of checkpoints on all main roads departing the heavily settled area near the border itself. Other than taking remote pathswhich itself provides reasonable suspicion for a Border Patrol stopeverybody has to subject themselves to warrantless questioning about residency, with sequelae (i.e., being pulled to the side for intensive questioning, putatively based on accumulated legal reasons, but in practice a series of social and psychological judgments involving race, class, and so forth). At airports and other transport hubs well inside the boundary Customs and Border Patrol (CBP) scrutinizes everyone through visual inspection and warrantless pull-asides, even for domestic-origin, domestic-destination travel. On land, the Border Patrol typically boards common carriers to question riders (with permission of the carrier, though not of the passengers; passengers are expected to answer about residency status)). Worthy of note is that racial profiling is explicitly allowed by executive branch policy at border crossings, checkpoints, and airports. The extreme executive discretion that characterizes immigration policy and especially border enforcement thus results in the normalization of search criteria which would be unacceptable anywhere else in the country.

Search and seizure protections are diminished in other ways, whether in law or practice, in the border region, even when not directly crossing the international boundary or detected doing so. Within 25 miles of the border, the Border Patrol can, without permission or a warrant, enter private property. Most of the border population lives within this 25-mile zone, except for Tucson, Arizona, and northern San Diego County, California. Intrusive Border Patrol operations at night that noisily enter propertiesto the point of climbing on roofsand brightly illuminated residential areas, are reported by the residents of Sunland Park, New Mexico, a poor and predominantly Hispanic community. However, given the discretion granted to the Border Patrol in this zone, even these complaints may not be legally actionable.

Brief stops and questioning of motorists and passengers, and pedestrians (roving patrols), ostensibly are governed by standard Fourth Amendment guidelines within the 100-mile strip outside checkpoints. In practice, however, Border Patrol is weakly limited by the governing court decisions; Border Patrol trains officers on a list of 21 articulable facts that are almost infinitely applicable, and, as a Patrol Agent told me, nobody really worries about them anyway. Racial profiling is permitted in roving stops by Brignoni-Ponce if there are other articulable facts. Brignoni-Ponce offers a kind of backdoor permission, since profiling solely is forbidden, but additional factors are almost always available. In fact, the real constraint on racial profiling of Mexican-origin or similar people in the borderlands is volume, not legal protections against discriminatory enforcement. Hispanic or Latino persons make up such a large percentage of the population that racial/ethnic profiling does not distinguish people enough. CBP agents and officers therefore typically combine this profiling with considerations such as class (apparent wealth, work, etc.), geographic area (poor settlements), and so forth. The people whose rights are diminished in practice are working class Hispanic citizens, legal residents, visitors, and unauthorized crossers the populations who are also least likely to defend themselves with private lawyers.

The Infrastructure of Enforcement: Enhanced Surveillance and Exceptional Powers

The density of border policing is hard to convey to someone who does not live in the region. There is widespread surveillance, including stadium lighting, fixed and mobile cameras, radar, helicopters, aerostat balloons, fixed wing aircraft, drones, motion sensors, cell signal sensors, license plate readers, and so forth. For many of these surveillance techniques, there is no public disclosure or documentation of the extent, results, and error rate of the massive collection. These certainly are used in interior policing, but are denser and more intrusive in this region.

There are also 16,700 Patrol Agents. Some are at fixed sites, some are in remote desert locations, but most rove densely inhabited areas with webs of roads. The public image of the border is desolate, which is partly true in some areas, but often this is a fully inhabited region. It is not just being watched that matters (though the impact of this observation should not be discounted). With greater scrutiny comes greater likelihood of being detected in some federal law violation or another, which is especially significant when we note the fine-grained inequalities of exactly who and which localities are most intensively watched within the broader region. The results of disproportionate policing and scrutiny in general have also been well documented and include greater likelihood of entering the criminal justice system. We can expect that these effects map onto the border region, where enforcement scrutiny is as intense as anywhere in the country.

The reduced rights accorded the U.S.-side of the border are epitomized by way that normal rules and procedures are suspended or inapplicable in this zone. For example, Congress has granted the Secretary of Homeland Security the power to waive 48 environmental, cultural, historical and other laws as needed for the construction and maintenance of the border wall; they also made judicial appeal difficult. The widespread use of eminent domain (over 360 cases in less than a year alone, 2007-2008) has, according to the Texas Tribune, involved unfair real estate deals, secretly waiv[ing] legal safeguards for property owners, and ultimately abus[ing] the governments extraordinary power to take land from private citizens in one of Americas poorest regions. In Arizona, the construction of the wall has brought destruction of sacred, burial, and natural sites of the Tohono Oodham people, while in the lower Rio Grande valley it has disrupted an enduring, deep, and meaningful relationship of local people with the river.

Construction of this physical infrastructure has been supplemented in recent years by the declaration of a national emergency at the border in 2019. The executive power to declare emergencies is another instance of exceptionality given to the president by Congress in the National Emergencies Act. As a number of experts have shown, including border-region experts, there is no meaningful emergency involved. Border community organizations and government entities including El Paso County, have responded by suing to enjoin the emergency monies directed to border wall construction; an injunction initially was obtained but is stayed and under appeal.

Unconnected to putative emergencies, National Guard and active duty troops have been assigned to the border nearly continuously from President George H. W. Bush onward; the latest instance started in 2018. The truth is that these operations are mostly symbolic and pointless; they involve such marginally effective tactics as installing huge masses of razor wire along the boundary. The notable exception to this inefficacy is military support for the widespread surveillance described above, which significantly multiplies the reach of oversurveillance. Far from enhancing national security, declaring the border to be in a state of emergency is publicly demeaning to a region actually noted for its low rates of violent crime, and compounds the racist fear and negativity with which the border is viewed. It also adds to the gradual militarization (in a broad sense, as in using low-intensity warfare methods) of this civilian region.

Despite these high-profile declarations and deployments, however, the military remains far less important than the occupation of the borderlands by CBP which has subjected the region, as well as the migrants, to a shocking level of abuse and corruption. U.S. immigration enforcement agencies (especially CBP) have an empirically demonstrated high level of legal, verbal, and physical abuse. These organizations also have serious problems with corruption. CBP has high attrition and disciplinary termination rates, and reports low morale despite being an employer providing exceptionally well-paying jobs in one of the poorest regions of the country.

Community Across Borders

The U.S. borderlands with Mexico are intensely binational. Some elements of Cox and Rodrguezs exposition bear on legal entry into the country, as well as self-presentation for asylum and unauthorized border entry. But the impacts of unleashed executive discretion also need to be placed in the context of the importance and intensity of ordinary border crossing for the region. For example, the El Paso Port of Entry alone in 2018 received north-bound crossing of 811,000 trucks, more than 12 million cars with 22 million passengers, and 7 million pedestrians, yet it is neither the largest commercial port (Laredo) nor non-commercial port (San Ysidro in San Diego County). The economic value of this trade was $81.9 billion. To indicate the personal importance of border crossing, in a random-sample, binational survey (files of the author), 64% of El Paso respondents had crossed within the previous two years while 25% of Ciudad Jurez respondents had crossed; 64% of El Pasoans have close family in Jurez, and 63% of Juarenses have close family ties in El Paso.

Though many people move around the world, and in particular the U.S.-Canada border is similar, it is thus worth emphasizing that for borderlanders, border crossing is economically valuable, personally meaningful, and often frequent. Yet such crossers have long been subject to an exceptional search and seizure regime and recently, serious de facto barriers. The extent of the border search exception to the Fourth Amendment is debated, but the courts have generally accorded the executive branch exceptional powers of search, seizure, and short-term detention.

These exceptional powers are not merely theoretical. People often report long periods made to wait and intensive interrogations when returning to El Paso, without any articulation of suspicion or facts. While constrained in their searches by the enormous volumes of traffic, which limit the time of inspectors and supervisors to be intrusive, inspectors are uneven and some are arrogant and abusive. There is a shortage of inspectors at the southwestern border by the metric of the governments own staffing model; and everyone on all sides is exhausted, cranky, hot, and polluteda bad mix with arbitrary power. The reasons why the ports are underfunded vis--vis Border Patrol is a matter of subtle argument, involving counterfactuals., but we need to consider the argument by Cox and Rodrguez about the prioritization of enforcement by both Congress and the executive.

Enforcement Emphasis Meets COVID

Moreover, since the advent of COVID-19 the Trump administration has engaged in a de facto effort to slow down or even shut the Mexican and Canadian borders. It is difficult to parse what is happening since much of it is not officially stated and is implemented inconsistently, but some elements appear to be these: U.S. citizens and legal residents are allowed to go into Mexico and to return (or if they live in Mexico, to visit the United States), but Mexican visitors with a repeat entry visa (border crossing card) are now denied entry which has negative family and economic impacts. Mexicans are allowed into the United States if they are deemed essential but that is a flexible (not to say hypocritical) term, with strong components of social power (Mexican elites) and economic interests (Mexican truckers, farmworkers, etc.). Inspectors have a great deal of discretion in practice.

The effects of these restrictions apparently disappointed the administration; the flow of people remained high during the spring and summer. The number of people holding rights to cross may have been underestimated by people not familiar with the borderlands. So, unannounced, there has been an aggressive effort to slow down traffic. This includes longer time in inspectiondebatably appropriateand reducing available lanes, which is counterproductive, unnecessary, and unquestionably punitive. This policy seems to merely continue the Stephen Miller-designed xenophobic policy of using public health justifications to restrict immigration and though the public health emergency is real, the policy is no more rational than previous iterations.

The slowdowns and arbitrary distinctions at the border compound the use of COVID-19 as a rationale finally to stop all asylum-seekers, no matter how compelling their cases, from reaching safety in the United States. A description of all the anti-asylum measures exceeds the bounds of this essay (see this summary), and broadly is consistent with Cox and Rodrguezs long history of exclusionary approaches to migration.

Two points may not be well known, however. The first is that help to refugees (in the social, not strictly legal sense) has been for four decades an important part of the U.S. borderlander ethos, though certainly debated locally and not wholly embraced. This was demonstrated by an enormous outpouring of voluntarism on the U.S.-side of the border in 2018-2019. Trapping refugees in crime-plagued Mexico or returning them to persecution at home, then, cuts them off from a largely sympathetic community.

Second, we now need a critical analysis of the use of quarantine to close or reduce flows through borders, for the present and for the future. Without diving into a legal analysis of the CDCs authority to expel asylum seekers (increasingly the same used to keep Mexican visitors from entry), there is little substantive justification for this policy on its face. There is at least as much COVID-19 in the United States as Mexico (though data in both countries are not completely reliable). Rational public health strategy would involve systematic testing, contact tracing, and isolating or quarantining affected individuals, not separating millions of people by nationality, which particularly affects borderlands.

Paths Forward

We need to envision the future. The provision of enormous resources with wide discretion and few legal restrictions, combined with an enforcement orientation, needs to be addressed on both long-term and immediate horizons. In the short term, CBP desperately needs top to bottom reform. An important thrust of our recent work has been detailing much needed reforms. Issues with CBP are typically treated as a matter of a few bad apples. We propose instead that accountability needs to be extended energetically through the organization, whereby supervisors and managers are held responsible for the conduct of their officers. CBP, an organization given wide legal latitude, and operating among people accorded little voice or respect, must be held accountable.

In the long term, immigration is more positively than negatively viewed for the first time in Gallups long time-series of opinion polling. This is a trend we can build on to change the scenario described in The President and Immigration Law. Legislating generous and fair future legal immigration, refuge, and asylum, by reducing the size of unauthorized migration flows, will reduce the enforcement burden on the border. But less dramatically, Congress, the Courts, and the executive branch all need to address, in many detailed ways, a key tendency. We have treated the U.S. borderlands almost as if it is an unpopulated enforcement zone, as if it were external to the country, even when it is filled with U.S. residents and visitors, going about their daily lives. The latter understanding encourages us to limit unbounded executive discretion through reviving rights, respect, and accountability in ways powerfully indicated in this book. Our borderland needs to be valued as a place of relationship, rather than racialized fear, and U.S. borderlanders viewed as full members in the national society.

Original post:
The President and Immigration Law Series: The Consequences of the Free Rein of Enforcement on Borderlands Society - Just Security

Senate Democrats are portraying Supreme Court nominee Amy Coney Barrett as a menace to health care, abortion access, and democracy. During Barrett's confirmation hearing today, Sen. Ted Cruz (RTexas) countered that argument by detailing some of the ways in which justices nominated by a Democratic president could be expected to endanger civil libertiesin particular, freedom of speech and the right to armed self-defense.

When Hillary Clinton ran for president in 2016, Cruz noted, she promised to nominate justices who would vote to overturnCitizens United v. Federal Election Commission, the 2010 decision in which the Supreme Court concluded that restrictions on political speech by labor unions and corporations, including an ideologically diverse array of nonprofit advocacy groups, were inconsistent with the First Amendment. The issue in that case, Cruz reminded us, was whether "a small nonprofit organization based in D.C." could be fined for airing and promoting "a movie critical of a politician"Clinton herselfclose to an election, which qualified as a forbidden "electioneering communication."

During the first round of oral argument inCitizens United, Cruz noted, Justice Samuel Alito asked Deputy Solicitor General Malcolm Stewart whether the Constitution would allow Congress to ban material like Hillary: The Movie not just on radio or TV but in other media as well, such as DVDs, the internet, and books. Stewart said yes, noting that the ban on "express advocacy" by corporationsspeech that does not merely praise or pan a candidate but explicitly supports his election or defeatwas not limited to radio and TV.

"That's pretty incredible," Alito replied. He then pressed Stewart to say whether a book containing express advocacy could be banned if it were published by a corporation (as books typically are). After much hemming and hawing, Stewart again said yes. He did note that the ban on express advocacy made an exception for media corporations such as book publishers, without committing himself on whether such an exception was constitutionally required.

That exchange was "truly chilling," Cruz said, since it reflected "a terrifying view of the First Amendment." The book-banning claim also startled Justice Antonin Scalia. "I'm a little disoriented here, Mr. Stewart," he said. "We are dealing with a constitutional provision, are we not, the one that I remember which says Congress shall make no law abridging the freedom of the press? That's what we're interpreting here?"

The discussion of book bans was a turning point in the case. By exposing the breadth of the censorship power claimed by the government, it spurred the justices to schedule a highly unusual second round of oral arguments to consider whether a 1990 precedent upholding a state ban on express advocacy should be revisited. The ultimate result was a 5-4 decision that overturned the rule against express advocacy as well as the restrictions on electioneering communications.

Given the closeness of that vote, Clinton's promise to nominate justices hostile to Citizens Unitedcould have had serious consequences for freedom of speech, and not in a good way. Joe Biden, who supports a constitutional amendment that would not only "end Citizens United" but "prevent outside spending from distorting the election process," seems to take an even narrower view of what Americans should be allowed to say about politicians like him.

In addition to supporting restrictions on political speech, Cruz noted, Democrats have a blind spot when it comes to the Second Amendment. While Democrats talk about "reasonable gun control," he said, that "is not what was at stake" in District of Columbia v. Heller, the 2008 decision in which the Supreme Court, also by a 5-4 vote, overturned a D.C. law that banned handguns outright and effectively made it illegal to use even long guns in defense of one's home and family. "The position of the four dissenters"all nominated by Democrats"was that the Second Amendment does not provide for any individual right to keep and bear arms whatsoever," Cruz pointed out, meaning it imposes no restrictions at all on gun laws.

The Democratic platform, which this year talks a lot about gun control but does not even pay lip service to the Second Amendment, likewise seems to view it as a nullity. The implication of that view, Cruz observed, is that "the federal government, the state government, [or] the city could ban guns entirely, could make it a criminal offense for any one of us to own a firearm, and no individual would have any judicially cognizable right to challenge that. That is a radical reading of the Constitution. That is effectively erasing the Second Amendment from the Bill of Rights."

The point is not that Republicans are generally sounder on civil liberties than Democrats. Even when it comes to freedom of speech, Cruz himself is an unreliable ally who recently suggested that a movie he did not like should be banned.

Nor is the point that Republican Supreme Court nominees will always be safer bets for people who want the entire Bill of Rights to be respected. A Republican nominee might be a staunch defender of the Second Amendment (as Barrett clearly is) but less reliable when it comes to, say, due process or the Fourth Amendment (although Barrett looks pretty good on both counts).

The point is that, contrary to what Democrats want us to believe, threats to civil liberties do not emanate exclusively from either major party, and neither does concern about them.

More here:
Defending Amy Coney Barrett, Ted Cruz Highlights the Threats That Democrats Pose to Civil Liberties - Reason