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Last year, I blogged about State v. Elliswhere a passing motorist gave a Highway Patrol trooper the middle-finger salute and was arrested for his trouble. A divided Court of Appeals allowed the defendants conviction to stand. The case made it to the Supreme Court, which recently issued an opinionreversing the conviction.

A quick recap of our story. A trooper was assisting motorists when he noticed that the passenger in a car driving by had extended his hand out the window and was waving. After the vehicle passed, the trooper kept watching and saw that the waving stopped but the passengers middle finger remained extended. The trooper pursued and stopped the car. The passenger would not identify himself until cuffed and placed in the patrol car. Having determined that no one was in distress, the trooper issued a citation to the passenger for resisting, delaying, and obstructing an officer.

At trial, the defendant moved to suppress evidence of his refusal to identify himself, arguing that the facts did not establish reasonable suspicion to justify the stop. After hearing evidence from the trooper, the trial court orally denied the motion without making written findings of fact or conclusions of law, stating instead that [b]ased on a review of the evidence, the Court does find reasonable suspicion for the stop. In addition, based upon the totality of the evidence the Court does find probable cause for the arrest. The defendant then pled guilty, but reserved his right to appeal the denial of his suppression motion.

In its first opinion, filed on 6 August 2019, the Court of Appeals majority found no error. In the absence of written findings of fact and conclusions of law, the Court of Appeals inferred findings based upon the trial courts oral ruling and assessed de novo whether those findings supported the trial courts legal conclusion.

The Court of Appeals noted that the issue was not whether shooting the bird was a crime and that the defendant was not charged on the basis of that behavior. Instead, the issue was whether the trooper, when initiating the stop, had reasonable suspicion that criminal activity was afoot. The majority concluded that the defendants actions reasonably could alert an objective officer to a pending breach of the peace. In dissent, Judge Arrowood argued that no reasonable suspicion existed for the stop.

Heres where it gets interesting. The majority noted that the States brief did not argue that the stop was predicated on reasonable suspicion. Instead, the State had contended that the community caretaker exception, whose application does not require reasonable suspicion, justified the stop. The majority disagreed, finding the community caretaker exception inapplicable. However, the court went on to observe that, because the State was the appellee, the majority could still affirm the trial courts decision on an alternative reasonable suspicion theory. In so doing, the Court of Appeals stated that it is our duty to affirm the trial courts ruling if there is any legal means to justify that trial courts ruling, even if that reason was not argued by the appellee. Indeed, it is our duty to consider all possible legal bases to affirm the trial court even if the State, as appellee, had not filed a brief at all.

This language caused a bit of a stir in the appellate practitioner world. Questions arose as to whether the issue of reasonable suspicion had been fully argued and preserved below or whether the issue merely had been noted in the trial courts ruling, abandoned by the State in its appellees brief, and then invoked by the Court of Appeals majority sua sponte. Also, the language about the Court of Appeals duty to affirm was generating debate. Just as I completed a blog post discussing the original opinion, the Court of Appeals withdrew it and filed a new opinionon 20 August 2019.

In its reissued opinion, the majority again affirmed the trial court, but with two significant modifications. First, the reissued opinion specifically stated that the question of reasonable suspicion had been raised and argued before the trial court, thereby quelling any question whether the issue had been preserved under Appellate Rule 10, even if it was not argued on appeal as contemplated by Appellate Rule 28. Second, discussion of the States brief was relegated to footnote 5, where the opinion stated that the State argues, as an alternative legal basis justifying the stop, that the troopers traffic stop was justified under the judicially-recognized community caretaking exception, then noted that exception was inapplicable. The footnote could be read to suggest that the State had argued both reasonable suspicion and community caretaker, though as we will see below, the States sole contention to that court was the latter. Judge Arrowood maintained his dissent, modified in light of the revised majority opinion.

Taken together, these two Court of Appeals opinions suggest some limit on a reviewing courts ability to strike out on its own when resolving a case. As indicated in the first Court of Appeals opinion, an appellee can prevail on appeal without filing a brief. The burden is on the appellant to convince the reviewing court that the trial court committed reversible error; a bold (or broke) appellee can just sit by and watch. So the reviewing courts opinion in favor of such a silent appellee will be based on a premise that was not briefed, at least not by the prevailing party. May the reviewing court reverse based upon a theory no one ever argued? The original opinion emphatically said yes. The revised opinion suggests a more limited approach, that a reviewing court may rely on an issue that was preserved, even if not presented on appeal.

The defendant appealed to the Supreme Court on the basis of the dissent. The States brief to the Supremes makes unusual reading, to say the least. The State advised the Supreme Court that while the Court of Appeals found that the trooper had reasonable suspicion that justified the stop, [t]he State did not assert this argument in its appellate brief or raise it during oral argument. Rather, it solely contended that the community caretaking exception to the Fourth Amendment applied. The State added that it does not believe that the specific articulable facts included in this record established reasonable suspicion of the crime of disorderly conduct. Lest there be any doubt, the State closed its brief by stating that the decision of the majority of the Court of Appeals should be reversed.

In a unanimous opinion filed on 1 May 2020, the Supreme Court reversed and remanded the Court of Appeals opinion. The matter was determined on the record and briefs without oral argument. The Supreme Courts straightforward opinion reviewed the inferred facts and concluded that no reasonable suspicion existed to justify the initial stop.

Think about what happened here. Recall that the State, to its credit, candidly acknowledged the limited basis of its appeal and conceded that it had never argued the theory on which the Court of Appeals relied. Even so, the Supreme Court, without discussion, followed and analyzed the reasonable suspicion argument that the State did not argue but the Court of Appeals embraced. The original blog post in this chain discussed cases where the reviewing court found that the trial court reached the right result while using the wrong rationale. Here, in a bit of a twist on that earlier post, the Supreme Court found that the Court of Appeals reached the wrong result but had based that result upon a misapplication of the right rationale.

Various permutations of this process are not hard to find. Another prime example where a reviewing court decided issues neither briefed nor argued is Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998). In that case, the Supreme Court abolished the distinction between invitees and licensees in premises liability case. This result came as a surprise to the litigants, none of whom had advocated for such a significant jurisprudential shift.

Similar events can be found in the Big Leagues. Ever-vigilant Beth has pointed me to United States v. Evelyn Sineneng-Smith, U.S. Supreme Court case number 19-67, issued this month, reversing a Ninth Circuit opinion. Writing for a unanimous Court, Justice Ginsburg remanded the case for an adjudication of the appeal attuned to the case shaped by the parties rather than the case designed by the appeals panel. Ouch. RBG noted the issue addressed in this post when she added A court is not hidebound by the precise arguments of counsel, but the Ninth Circuits radical transformation of this case goes well beyond the pale. Ouch again.

Often, these appellate gyrations may be a practical necessity. Trial courts and litigators need to know the bases for the reviewing courts decisions. Thats why we have written opinions. The reviewing courts obligation to oversee the states jurisprudence and reach sound conclusions will sometimes lead it to a rationale that those below did not see coming. It only makes sense for the ultimate reviewing court to be explicit in those rationales. As Beth and Matts treatise notes, the ultimate responsibility for jurisdictional oversight lies with the jurisdictions court of last resort, though intermediate reviewing courts also have a role. Elizabeth Brooks Scherer & Matthew Nis Leerberg, North Carolina Appellate Practice and Procedure, 2.05[4].

Unanswered is the question how far a reviewing court may (or must) go to reach a correct result. Ellis illuminates the risks inherent in a courts decision to reach what it sees to be the right outcome. The Court of Appeals majority found for the State on a legal basis that the State deliberately had not argued on appeal and later explicitly rejected when in the Supreme Court. In other words, the Court of Appeals majority reached beyond the issues briefed for a result it thought correct, but no one else did, including the beneficiary of the courts reaching.

Litigants and trial judges would surely like to know the limitations, if any, on the reviewing courts ability to look beyond the issues the parties have chosen to present. The process illustrated here in Ellis can be frustrating for those involved in a case who were giving it their best effort but were unexpectedly second-guessed by the reviewing court.

Should the parties be notified and given the opportunity to be heard when the reviewing court is considering a theory that no one argued? While that sounds sensible, implementing it would be a jolt to the cultures of both of North Carolinas appellate courts, at least as existed when I was there. The judges and justices rarely discussed cases before they were calendared, so the panels did not know the outcome and rationale of a case until the judges or justices discussed it in conference and voted on the resolution. Only then could supplemental briefing be ordered if the court was considering going in a direction unanticipated by the parties.

What are the lessons from this case? For one, if you are of a mind to tell a trooper or officer that they are Number 1, use your index finger.

Has something like this ever happened to you? Can you recall any opinions where the appellate courts admitted that they were deciding the appeal based on a theory not argued in any of the appellate briefs? Or where the reviewing court went off on a frolic of its own sub silentio?

[View source.]

Link:
Appellate Rulings Not Argued By Any Party; Or Too Many Fingers In The Pie - JD Supra

I blogged recently on the Massachusetts high court's ruling on how the Fourth Amendment should apply to querying automated license plate reader (ALPR) databases. Here's a new ruling on the topic that deepens the plot: In United States v. Yang, the Ninth Circuit ruled that a driver's Fourth Amendment rights were not violated by querying an ALPR database to learn the car's location when the car was a rental that was been driven beyond the contract and the rental car company had tried to repossess the car. In those circumstances, the court reasoned, the driver lacked standing in the location of the car.

I'm not sure I agree with the reasoning of the decision. But it's certainly interesting, so I thought I would blog more about it.

I. The Facts

Yang was spotted committing a crime while driving a GMC Yukon. Investigators traced the Yukon's license plate to a rental car company, Prestige Motors. The rental car company told the officers that the Yukon had been rented to Yang but that he hadn't returned the car on time. But by the time investigators contacted the rental car company, it was already six days beyond the return time. Prestige Motors had tried to locate the Yukon through its company-owned GPS, but that the GPS had been disabled.

In an effort to find the Yukon, investigators entered the license plate number of the Yukon into an ALPR database called LEARN. LEARN is a database run by a private company that is available only to law enforcement. The LEARN database receives about 35% percent of its images from law enforcement vehicle cameras and the remaining 65% percent of its images from commercial vehicle cameras. It contains more than 5 billion scans of license plates.

The LEARN database was queried on April 13th, and it revealed a single scan in the database that had been taken on April 5th at 11:24pmslightly more than 12 hours after the Yukon was supposed to be returned to the rental car company. The scan revealed that, on April 5th at 11:24pm, the Yukon had been spotted on a road near a particular intersection. Immediately after getting the database hit, also on April 13th, the officer went to that intersection and was able to locate the Yukon in a parking lot nearby.

II. The Ninth Circuit's Reasoning

Here's the question: Did the querying the ALPR database constitute a "search" that violated Yang's rights?

The Ninth Circuit's answer, in an opinion by District Judge Piersol joined by Judge Ken Lee: No. Yang didn't have standing in the car that was supposed to have been returned to the rental car company, so his rights weren't implicated in the scanning. Here's the reasoning:

While the mere expiration of the rental period does not automatically end a lessee's expectation of privacy, see United States v. Dorais, 241 F.3d 1124, 1129 (9th Cir. 2001), we conclude that Yang has failed to establish that he has a reasonable expectation of privacy in the historical location information of the Yukon under the facts of this case. There is no evidence in the record that Prestige Motors had a policy or practice of allowing lessees to keep cars beyond the rental period and Prestige had made affirmative attempts to repossess the vehicle by activating the GPS unit to locate and disable the vehicle.

In so holding, we find instructive our decisions in United States v. Dorais and United States v. Henderson, 241 F.3d 638 (9th Cir. 2000) which both analyze a lessee's expectation of privacy in rental property after the expiration of the rental period. [Editor: The gist of these cases is that you eventually lose Fourth Amendment rights in rented property after the rental period has ended.] . . . .

At the outset, we reject Yang's argument that the above-mentioned cases are inapposite because they regard an expectation of privacy in property or premises rather than an expectation of privacy on the whole of one's movements that is at issue in this case. We are simply unwilling to conclude that a person has a reasonable expectation of privacy in his movements as revealed by the historical location data of a rental vehicle after failing to return the vehicle by the contract due date, when there is no policy or practice of the rental company "permitting lessees to keep cars and simply charging them for the extra time." See Dorias, 241 F.3d at 1128 (citing Henderson, 241 F.3d at 647).

In this case, the rental contract provided that vehicles not returned by the due date will be reported as stolen to the proper authorities. Yang contends that Prestige Motors' decision not to immediately file a stolen vehicle report after the rental contract expired is evidence that the company does not strictly follow this policy. However, unlike in the cases discussed above, Yang presented no evidence at the suppression hearing of any other custom or practice by Prestige that led him to believe that rather than adhering to the rental contract terms and reporting the vehicle as stolen, Prestige would, absent any request by him, simply extend the lease term and charge him the additional fees.

While the rental agreement provided that "[a] charge of $20.00 per day will be applied to the rental for every day the vehicle is late," the contract also provided that "[i]f a customer wishes to extend, he or she must notify the company 1 day in advance to make arrangements and additional payments." There is no evidence in the record to suggest that Yang notified Prestige of any intent on his part to extend the rental period. In addition, the rental contract warned lessees that Prestige may repossess a vehicle if not returned by the contract due date and that a $250.00 repossession fee will apply.

And in case there were any lingering doubts about whether Yang had a reasonable expectation of privacy in the location of the Yukon at the time Inspector Steele searched the LEARN database on April 13, 2006, we conclude that Prestige's private attempts to repossess the Yukon by activating the GPS and disabling the vehicle placed Yang, the sole authorized driver, on notice that Prestige did not intend to extend the lease term, but rather sought to repossess the vehicle.

At oral argument, Yang also argued that he had standing to object to the query of the LEARN database because it revealed his location on April 5, 2016, at approximately 11:24 p.m., at which time, he alleges, he still had a reasonable expectation of privacy in his movements. Given the rental agreement provided that vehicles not returned by the "due date" would be reported as stolen, Yang contends that he had a reasonable expectation of privacy in his movements, as revealed by the location data of the Yukon until 11:59 p.m. on April 5th even though the vehicle was due back by 10:48 a.m. that day. Because the ALPR camera captured the Yukon's location information well after the close of Prestige's business hours, as clearly advertised on the rental agreement, we need not determine whether a defendant has standing to object to a "search" of a rental vehicle's historical location information that was captured and uploaded to a database prior to the expiration of the rental agreement.

III. Judge Bea's Concurrence

Judge Bea concurred in the judgment. Judge Bea reasoned that Yang had standing because "in Carpenter, the Supreme Court was clear that the relevant inquiry, at least where location data is concerned, is what personal location information is revealed by a search of the records, not what type of data was collected and under what circumstances."

But according to Judge Bea, no search had occurred because this particular query had not revealed the whole of Yang's physical movements:

Looking at the specifics of this case, it's clear that the LEARN database did not contain information that revealed the whole of Yang's physical movements. Despite its 5 billion total records, the LEARN database contained a single entry for the Yukon that Yang had rented. Yang was unlucky that the one observation was recorded when he was in possession of the vehicle and was made near his residence. But even accepting that the search of the LEARN database revealed where Yang lived, it exposed nothing else about his "particular movements" whatsoever. Carpenter, 136 S. Ct. at 2217.

. . . It would be folly to hold that searches of ALPR databases require a warrant without identifying even one case where the "whole of [one's] physical movements" was implicated in an ALPR database search. Id. at 2217. If the technology evolves in the way that amici hypothesize, then perhaps in the future a warrant may be required for the government to access the LEARN database, but this should only be the case if the database evolves to provide comparable location information to the records at issue in Carpenter.

IV. A Few Thoughts

The issue of Carpenter standing is fascinating. Traditionally, people have Fourth Amendment rights in a search of a particular placepersons, houses, papers, and effects, as the constitutional text puts it. To have standing, the search needs to be a search of "their" persons, houses, papers, and effects. So when we conduct a traditional standing analysis, we ask if the person has enough of a relationship with the property searched for the property to be effectively theirs.

The complication is that Carpenter recognized a new theory of Fourth Amendment searches.Under Carpenter, people now also have a new Fourth Amendment right in the "whole of their physical movements."This creates a standing puzzle. Does standing to challenge a Carpenter search hinge on whether a person has enough of a relationship with the property that was surveilled to learn about the person's movements? Or does standing to challenge a Carpenter search depend only on whether the government did in fact learn the person's movements?

The majority takes the former view, looking to Yang's rights in the car. Judge Bea's concurrence takes the latter view, looking to whether Yang's location was obtained.

Based on my read of Carpenter, and the opinions on which it is based, I would think that Judge Bea's approach is probably more consistent with those cases. Carpenter focused on the fact that the location of Carpenter's phone was revealed. The Court didn't dwell on whether Carpenter had paid the bill or was a legitimate user of the phone.

Granted, the idea of standing being based only on the location of property merely thought to be linked to a person is pretty weird. After all, we don't know that Yang was actually driving the car when the car was spotted. Who is to say that locating the car at that time was even actually locating Yang? But I take that oddity to be largely brought on by Carpenter. We didn't know Carpenter was using the phone that was located using the cell-site location information (CSLI). And yet the Supreme Court treated revealing the CSLI of the phone thought to be linked to Carpenter as effectively revealing Carpenter's location. The same would seem to be true here, I would think. Perhaps the fact that the Yukon was thought to be linked to Yang meant that his rights were implicated in locating the Yukon even if he wasn't in the car at the time. It's odd, but it's plausibly an oddness caused by Carpenter.

Back to Yang, with just one more thought on standing. Even if majority was right that Carpenter standing is based on rights in the car, I wonder if I'm alone in finding it somewhat misplaced that the majority focused so much on the specific language of the rental contract. I would think that this kind of standing would be governed by the Supreme Court's recent decision in Byrd v. United States, which was expressly about standing to search rental cars outside the terms of the contract. And yet the opinion doesn't citeByrd, although it was discussed extensively in Yang's reply brief.

Finally, I'm also fascinated by the timing issue, a question I keep mentioning when I write on Carpenter and the mosaic theory that keeps getting more interesting. The question is, when does a Carpenter search occur: When the information was first collected? When it was requested by the government? When it has given to the government? When it was analyzed by the government? Some combination of the above? This matters if standing is based on the property surveilled, as a person can have standing in property at one time but not at another time.

In the Yang case, the panel majority focuses on whether Yang had standing at the time the query was made, on April 13th. By the time of the April 13th query, the court reasons, Yang lacked standing. But the panel then also offers the idea that Yang lacked standing when the snapshot of the car was originally taken, on April 5th, because the car was already overdue by a few hours by then. The court then expressly leaves unresolved whether Yang would have had standing had the April 13th query returned a hit that revealed the car's location from an earlier time when the car was still properly rented to Yang. If I'm reading the opinion correctly, the court seems to be slightly hedging its bets here on which timing matters.

As always, stay tuned. Carpenter's novel conceptual puzzles are the gift that keeps on giving, at least for academics. It's like Einstein's theories meeting Newtonian physics.

Link:
Ninth Circuit on ALPR Surveillance and the Fourth Amendment - Reason

At the direction of Attorney General Bill Barr, the Justice Department last week moved to dismiss a false-statements charge against Michael Flynn, President Trumps former national security adviser. The reason stated was that the continued prosecution would not serve the interests of justice.

The motion was signed by Timothy Shea, a longtime trusted adviser of Mr. Barr and, since January, the acting U.S. attorney in Washington. In attempting to support its argument, the motion cites more than 25 times the F.B.I.s report of an interview with me in July 2017, two months after I left a decades-long career at the department (under administrations of both parties) that culminated in my role as the acting assistant attorney general for national security.

That report, commonly referred to as a 302, is an interesting read. It vividly describes disagreements between leadership of the Justice Department and the F.B.I. about how to handle the information we had learned about Mr. Flynns calls with the Russian ambassador Sergey Kislyak and, more specifically, Mr. Flynns apparent lies about those calls to incoming Vice President Mike Pence.

But the report of my interview is no support for Mr. Barrs dismissal of the Flynn case. It does not suggest that the F.B.I. had no counterintelligence reason for investigating Mr. Flynn. It does not suggest that the F.B.I.s interview of Mr. Flynn which led to the false-statements charge was unlawful or unjustified. It does not support that Mr. Flynns false statements were not material. And it does not support the Justice Departments assertion that the continued prosecution of the case against Mr. Flynn, who pleaded guilty to knowingly making material false statements to the FBI, would not serve the interests of justice.

I can explain why, relying entirely on documents the government has filed in court or released publicly.

Notably, Mr. Barrs motion to dismiss does not argue that the F.B.I. violated the Constitution or statutory law when agents interviewed Mr. Flynn about his calls with Mr. Kislyak. It doesnt claim that they violated his Fifth Amendment rights by coercively questioning him when he wasnt free to leave. Nor does the motion claim that the interview was the fruit of a search or seizure that violated the Fourth Amendment. Any of these might have justified moving to dismiss the case. But by the governments own account, the interview with Mr. Flynn was voluntary, arranged in advance and took place in Mr. Flynns own office.

Without constitutional or statutory violations grounding its motion, the Barr-Shea motion makes a contorted argument that Mr. Flynns false statements and omissions to the F.B.I. were not material to any matter under investigation. Materiality is an essential element that the government must establish to prove a false-statements offense. If the falsehoods arent material, theres no crime.

The department concocts its materiality theory by arguing that the F.B.I. should not have been investigating Mr. Flynn at the time they interviewed him. The Justice Department notes that the F.B.I. had opened a counterintelligence investigation of Mr. Flynn in 2016 as part of a larger investigation into possible coordination between the Trump campaign and Russian efforts to interfere with the presidential election. And the department notes that the F.B.I. had intended to close the investigation of Mr. Flynn in early January 2017 until it learned of the conversations between Mr. Flynn and Mr. Kislyak around the same time.

Discounting the broader investigation and the possibility of Russian direction or control over Mr. Flynn, the departments motion myopically homes in on the calls alone, and because it views those calls as entirely appropriate, it concludes the investigation should not have been extended and the interview should not have taken place.

The account of my interview in 2017 doesnt help the department support this conclusion, and it is disingenuous for the department to twist my words to suggest that it does. What the account of my interview describes is a difference of opinion about what to do with the information that Mr. Flynn apparently had lied to the incoming vice president, Mr. Pence, and others in the incoming administration about whether he had discussed the Obama administrations sanctions against Russia in his calls with Mr. Kislyak. Those apparent lies prompted Mr. Pence and others to convey inaccurate statements about the nature of the conversations in public news conferences and interviews.

Why was that so important? Because the Russians would have known what Mr. Flynn and Mr. Kislyak discussed. They would have known that, despite Mr. Pences and others denials, Mr. Flynn had in fact asked Russia not to escalate its response to the sanctions. Mr. Pences denial of this on national television, and his attribution of the denial to Mr. Flynn, put Mr. Flynn in a potentially compromised situation that the Russians could use against him.

The potential for blackmail of Mr. Flynn by the Russians is what the former Justice Department leadership, including me, thought needed to be conveyed to the incoming White House. After all, Mr. Flynn was set to become the national security adviser, and it was untenable that Russia which the intelligence community had just assessed had sought to interfere in the U.S. presidential election might have leverage over him.

This is where the F.B.I. disagreed with the Justice Departments preferred approach. The F.B.I. wasnt ready to reveal this information to the incoming administration right away, preferring to keep investigating, not only as part of its counterintelligence investigation but also possibly as a criminal investigation. Although several of us at Justice thought the likelihood of a criminal prosecution under the Logan Act was quite low (the act prohibits unauthorized communications with foreign governments to influence their conduct in relation to disputes with the United States), we certainly agreed that there was a counterintelligence threat.

Thats exactly why we wanted to alert the incoming administration. Ultimately, after our dispute over such notification continued through the inauguration and into the start of the Trump administration, the F.B.I. without consulting the Justice Department arranged to interview Mr. Flynn. By the time Justice Department leadership found out, agents were en route to the interview in Mr. Flynns office.

The account of my July 2017 interview describes my departments frustration with the F.B.I.s conduct, sometimes using colorful adjectives like flabbergasted to describe our reactions. We werent necessarily opposed to an interview our focus had been on notification but any such interview should have been coordinated with the Justice Department. There were protocols for engaging with White House officials and protocols for interviews, and this was, of course, a sensitive situation. We objected to the rogueness of the decision by the F.B.I. director, Jim Comey, made without notice or opportunity to weigh in.

The Barr-Shea motion to dismiss refers to my descriptions of the F.B.I.s justification for not wanting to notify the new administration about the potential Flynn compromise as vacillating from the potential compromise of a counterintelligence investigation to the protection of a purported criminal investigation. But that vacillation has no bearing on whether the F.B.I. was justified in engaging in a voluntary interview with Mr. Flynn. It has no bearing on whether Mr. Flynns lies to the F.B.I. were material to its investigation into any links or coordination between Mr. Trumps presidential campaign and Russias efforts to interfere in the 2016 election.

And perhaps more significant, it has no bearing on whether Mr. Flynns lies to the F.B.I. were material to the clear counterintelligence threat posed by the susceptible position Mr. Flynn put himself in when he told Mr. Pence and others in the new administration that he had not discussed the sanctions with Mr. Kislyak. The materiality is obvious.

In short, the report of my interview does not anywhere suggest that the F.B.I.s interview of Mr. Flynn was unconstitutional, unlawful or not tethered to any legitimate counterintelligence purpose.

Mary B. McCord, the former acting assistant attorney general for national security at the Department of Justice, is legal director for Georgetown Laws Institute for Constitutional Advocacy and Protection and a visiting law professor.

The Times is committed to publishing a diversity of letters to the editor. Wed like to hear what you think about this or any of our articles. Here are some tips. And heres our email: letters@nytimes.com.

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See the original post:
Bill Barr Twisted My Words in Dropping the Flynn Case. Heres the Truth. - The New York Times

Since the onset of the COVID-19 pandemic, which in these parts was in early March, I have found the data-gathering practices on actual cases, hospitalizations, and deaths unhelpful.

Everyone has.

In full disclosure, I had to take college algebra twice to get a passing grade.

This is no slight on Mrs. Haines or GSHS, but you may want to take with a grain of salt anything I might write related even obliquely to math (unless, of course, it has to do with the Electoral College, where numerical reason always gets offended and leaves the room in a snit).

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Youd think that in the 21st Century, U.S. data gathering and reporting would be spit-polished by ubiquitous technologies like iPhones and wireless networks, but alas, the garbage-in-garbage-out proposition still applies, perhaps now more than ever.

Despite my questionable math background, early on in the pandemic I dumped TV news in favor of Bings COVID-19 Tracker to get a clearer picture about where and how quickly the virus was spreading.

However, I soon gave up on Bing for some of the same reasons I soured on TV news.

Unlike the news, Bings COVID-19 Tracker allocates a spot for recoveries. Like the news, they dont put a number to it usually.

Even as I write, the map lists no recoveries in Colorado and most other states.

I thought maybe recovery data gets protected by HIPPA or the Fourth Amendment, and perhaps some of it does, but some states do cite recoveries.

Wyoming, for example, showed 596 cases earlier this week, 391 of which had recovered. Colorado, on the other hand, shows no recoveries but dutifully updates the total number of cases daily, which on Wednesday exceeded 17,000.

In fairness, KDVR did cite Colorado recovery statistics from CDPHE for about three days. KDVR still leads every broadcast with a fuss over cumulative cases, hospitalizations and fatalities, but apart from an occasional human interest piece on a patients hospital departure, theres little mention of recoveries.

Its not just the absence of recovery data that makes data on COVID-19 unhelpful.

Last month I watched as a news anchor unashamedly reported on live TV that a spike in COVID fatalities was partially due to previously unreported deaths attributed to the virus. The gist of the story was something like, CDPHE found numerous COVID-19 fatalities from previous weeks, so they have been added to todays number.

Its like they had no idea what to do, so they plugged them into the nearest slot.

The tendency of fatality reporting to gin up foreboding has been well-understood since the days of Walter Cronkite, but this kind of sloppy data gathering turns a new leaf. Yet, Colorado and communities like Glenwood Springs base decisions on whether to end mask-wearing ordinances and lift restaurant restrictions on this data.

Modeling based on solid data testing, active cases, hospitalizations, recoveries and mortality strikes me as a valid basis for making decisions about precautionary measures, but that validity unravels if you ignore recoveries, dismiss the temporal integrity of deaths, and focus mainly on cumulative active cases, hospitalizations and fatalities.

That focus yields one grim picture.

Holy moly, Myrtle, you end up saying as you smack your forehead with the palm of your hand, Theres over 17,000 COVID cases in Colorado!

View that number through the prism of recoveries and a different picture emerges.

Of course, we dont see that picture because somewhere along the way someone decided recoveries dont matter as much as active cases and fatalities, or something like that.

Last month Gov. Jared Polis referenced the use of cellphone metadata to analyze human movement and determine the efficacy of stay-at-home orders. He could certainly get his hands on recovery data if he wanted it Fourth Amendment rights or not.

So, listen carefully, friends, whenever someone trots out COVID-19 statistics. The vision of what a hopeful future looks like is often in what the voices of public trust dont say.

Mitch Mulhall is a husband, father and longtime Roaring Fork Valley resident. His column appears monthly in the Post Independent and at postindependent.com.

More:
Mulhall column: Reading the COVID-19 tea leaves - Glenwood Springs Post Independent

from the authoritarian-nonsense dept

We've been writing a number of pieces lately about how incredibly dangerous China's internet censorship has been during COVID-19, from silencing medical professionals to hiding research results tod trying to ignore Taiwan's success in fighting COVID-19, it's shown a pretty clear pattern that Chinese internet censorship is literally killing people. This is not to say that the US government's response has been much better -- it's obviously been a disaster, but at least we have more free speech online and in the press, which is enabling all sorts of useful information to spread.

But you might not know that if you read this odd piece in the Atlantic by Jack Goldsmith and Andrew Keane Woods arguing that China has the right approach to handling free speech online during a pandemic, and the US has not. While the overall piece is, perhaps, a bit more thoughtful than the headline and tagline, it has moments that simply defy any sense of what's happening in the world.

In the great debate of the past two decades about freedom versus control of the network, China was largely right and the United States was largely wrong. Significant monitoring and speech control are inevitable components of a mature and flourishing internet, and governments must play a large role in these practices to ensure that the internet is compatible with a societys norms and values.

Again, this defies all evidence of what we've seen to date.

The piece, bizarrely, conflates pervasive digital surveillance with open free speech online:

Two events were wake-up calls. The first was Edward Snowdens revelations in 2013 about the astonishing extent of secret U.S. government monitoring of digital networks at home and abroad. The U.S. governments domestic surveillance is legally constrained, especially compared with what authoritarian states do. But this is much less true of private actors. Snowdens documents gave us a glimpse of the scale of surveillance of our lives by U.S. tech platforms, and made plain how the government accessed privately collected data to serve its national-security needs.

And that's got literally nothing to do with America's approach to free speech online.

The "second" wake up call does relate to speech, but perhaps not in the way the authors mean:

The second wake-up call was Russias interference in the 2016 election. As Barack Obama noted, the most consequential misinformation campaign in modern history was not particularly sophisticatedthis was not some elaborate, complicated espionage scheme. Russia used a simple phishing attack and a blunt and relatively limited social-media strategy to disrupt the legitimacy of the 2016 election and wreak still-ongoing havoc on the American political system. The episode showed how easily a foreign adversary could exploit the United States deep reliance on relatively unregulated digital networks. It also highlighted how legal limitations grounded in the First Amendment (freedom of speech and press) and the Fourth Amendment (privacy) make it hard for the U.S. government to identify, prevent, and respond to malicious cyber operations from abroad.

Yes, the Russians conducted a misinformation campaign -- but it still remains unclear how effective that was beyond at the margins (and, to be fair, in a close election, the margins can be meaningful). But that's hardly a reason to throw out the 1st Amendment. The 1st Amendment has also allowed there to be widespread discussion and debate about all of this, and has helped to get companies better situated to deal with and respond to disinformation campaigns. It has also allowed tons of people to be on the digital frontlines pointing out mis- and dis-information and working on responding to it to limit its impact. There will always be some and there will always be attempts to exploit it, but the idea that China's approach is better seems totally counterfactual to reality (or what plenty of people who have suffered from Chinese internet censorship will tell you).

Incredibly, the authors blame Section 230 for "the free for all" online... but then when they talk about the companies trying to combat disinfo just two paragraphs later, they somehow miraculously leave out the fact that it's Section 230 and the 1st Amendment that allow them to moderate the content on the platform:

Ten years ago, speech on the American Internet was a free-for-all. There was relatively little monitoring and censorshippublic or privateof what people posted, said, or did on Facebook, YouTube, and other sites. In part, this was due to the legal immunity that platforms enjoyed under Section 230 of the Communications Decency Act. And in part it was because the socially disruptive effects of digital networksvarious forms of weaponized speech and misinformationhad not yet emerged. As the networks became filled with bullying, harassment, child sexual exploitation, revenge porn, disinformation campaigns, digitally manipulated videos, and other forms of harmful content, private platforms faced growing pressure from governments and users to fix the problems.

[....]

After the 2016 election debacle, for example, the tech platforms took aggressive but still imperfect steps to fend off foreign adversaries. YouTube has an aggressive policy of removing what it deems to be deceptive practices and foreign-influence operations related to elections. It also makes judgments about and gives priority to what it calls authoritative voices. Facebook has deployed a multipronged strategy that includes removing fake accounts and eliminating or demoting inauthentic behavior. Twitter has a similar censorship policy aimed at platform manipulation originating from bad-faith actors located in countries outside of the US.

It's the American approach to free speech that makes this even possible.

Then the article argues that misinformation in the age of COVID-19 is something... new. And that it's so serious that perhaps we should change how we think about free speech:

What is different about speech regulation related to COVID-19 is the context: The problem is huge and the stakes are very high. But when the crisis is gone, there is no unregulated normal to return to. We liveand for several years, we have been livingin a world of serious and growing harms resulting from digital speech. Governments will not stop worrying about these harms. And private platforms will continue to expand their definition of offensive content, and will use algorithms to regulate it ever more closely. The general trend toward more speech control will not abate.

Note that they seem to be conflating a few things here. There is the US government's approach to speech (bound by the 1st Amendment, there are very few areas where speech may be limited), and there are internet companies' approaches to hosting speech upon their private platforms. And while those platforms are becoming more aggressive in cracking down on misinformation, there remain plenty of other platforms online that are chock full of misinformation as well. But that's got little to do with our laws (beyond the fact that, as noted above, the 1st Amendment enables platforms to decide for themselves how to handle these things).

But it seems odd for an article that suggests a governmental approach to stifling speech is a good idea literally days after the US President suggesting injecting disinfectant into people as a way to deal with COVID-19. It's not the internet that is the cause of misinformation, guys. And saying that government should crack down on misinformation isn't going to work when it's the head of state spouting off the misinformation, which is then broadcast live by TV networks.

The article then tries to tie free speech to surveillance, but I'm unclear why or how those two things are as connected as the article suggests they are. You can have one without the other -- yet the article continues to assume that if you want free speech, then you must have mass surveillance along with it. It uses the examples of Clearview AI and Ring as examples of greater surveillance, but those have little to nothing to do with the American approach to free speech.

The article all too glibly insists that private company data tracking is the "functional equivalent" of the infamous social score now used in China, without recognizing a number of fundamental differences -- with the largest being the fact that the social score in China is a government program and is used in all sorts of nefarious ways. Yes, the article argues that thanks to COVID-19 it's likely that the US government and companies will be more closely tied, but gives no reason to support that conclusion as inevitable:

Apple and google have told critics that their partnership will end once the pandemic subsides. Facebook has said that its aggressive censorship practices will cease when the crisis does. But when COVID-19 is behind us, we will still live in a world where private firms vacuum up huge amounts of personal data and collaborate with government officials who want access to that data. We will continue to opt in to private digital surveillance because of the benefits and conveniences that result. Firms and governments will continue to use the masses of collected data for various private and social ends.

The harms from digital speech will also continue to grow, as will speech controls on these networks. And invariably, government involvement will grow. At the moment, the private sector is making most of the important decisions, though often under government pressure. But as Zuckerberg has pleaded, the firms may not be able to regulate speech legitimately without heavier government guidance and involvement. It is also unclear whether, for example, the companies can adequately contain foreign misinformation and prevent digital tampering with voting mechanisms without more government surveillance.

The First and Fourth Amendments as currently interpreted, and the American aversion to excessive government-private-sector collaboration, have stood as barriers to greater government involvement. Americans understanding of these laws, and the cultural norms they spawned, will be tested as the social costs of a relatively open internet multiply.

COVID-19 is a window into these future struggles.

Perhaps. It will certainly be interesting to see where the future heads, but the idea that COVID-19 inevitably means that the US will be less speech protective in the future is far from the only possible path forward. And the idea that China somehow has the right idea has little support anywhere. The authors may be correct that the government will try to expand surveillance and limit speech, but that's been happening for years. COVID-19 changes little in that regard.

Filed Under: andrew keane woods, authoritarianism, censorship, content moderation, covid-19, free speech, freedom, internet, jack goldsmith, moderation, pandemic, surveillance

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How Can Anyone Argue With A Straight Face That China's Approach To Speech Online Is Better Than The US's During A Pandemic - Techdirt