06/25/14 – Marcy Wheeler – The Scott Horton Show

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Alright y'all, welcome back to the show.
Hey look, we got Marcy Wheeler back on the show.
Emptywheel.net, that's her blog.
And that's her handle on Twitter too.
Hi Marcy, how are you?
I'm good, how are you?
I'm doing real good.
Oh, did I say Marcy Wheeler?
That's your actual name.
Not your internet name.
So she's not a lawyer, but she's as good as any lawyer in North America at reading legalese and telling you what it really means or what they're trying to obscure with it or whatever the hell.
And she's a great writer and she's really brilliant and she cares all about the Bill of Rights in all the right ways and it's great.
So emptywheel.net, that's where you read what she writes.
And so we got some all kinds of legal happenings today.
First of all, the U.S. Supreme Court unanimously did anything right?
That can't be right.
Really?
Well, we won't talk about the Aereo decision, which is a cluster... can I say that word?
Cluster?
Nah, we know what you meant.
But no, 9-0.
This is, as Oren Kerr pointed out at the Washington Post, this is 27-0 for the last three technology-related Fourth Amendment decisions at the Supreme Court.
So they're coming around slowly.
Our Supreme Court is learning.
Yeah, well, I just saw...
Well, never mind, that's not important enough to waste your time with.
So, now what exactly was at issue here with this cell phone search?
A couple guys who were stopped by the cops and after stopped, the cops searched their cell phones and found incriminating evidence via the cell phones that busted them for other crimes.
Drug-related crimes, that kind of thing.
And the Supreme Court held that they have to get a warrant before they do that going forward.
And now, they had been relying on the case of the matchbook full of drugs, right?
Or the matchbox full of drugs, that, hey, I had to search the guy when I arrested him.
And so it's not my fault that I found heroin in his pocket when I had to do an inventory of his personal belongings and so screw him.
And they were saying, that's the same thing as opening his phone up and reading his email.
Yeah, and not just the finding drugs in a cigarette case, but also searching for guns or what have you.
Sam Alito wrote a kind of pathetic concurrence.
He still bought off on the opinion, but he was sort of like, I think you are misstating the reasons we have approved those kinds of searches.
And he kind of raised your point.
Because Roberts focused on the need to search people to make sure that suspects didn't either do something to hurt the cop or destroy evidence.
And he said, neither of those is going to happen in this case, so the interest clearly lies with privacy.
And Alito said, but wait, we like to search for other reasons, but otherwise I agree with the opinion.
So that's basically what Roberts said, though, is that there were a bunch of great lines.
It's actually a fun read, but one of them he's like, I'm going to misquote it, but he basically said, the data in a cell phone can't hurt a cop.
It's true.
Although, I think you'd find some governments who would disagree with that.
And certainly some cops who would disagree that the pictures in a phone can't hurt a cop, but whatever.
Well, I mean, I'm not trying to argue the bad guy's case here or whatever.
But based on the precedent that they can open up a matchbook to see whether there are drugs stashed in there or not.
Or a matchbox, I guess, was the case, if I remember it right.
There's nothing in a matchbox that can hurt a cop either, right?
I mean, there could be evidence in there, but I thought that the precedent was we stopped him for jaywalking.
And it's not our fault that he happened to have heroin in his matchbook, something like that, right?
Yeah, that would be the destroying evidence case.
What Roberts said is, basically, you're not going to be able to wipe a phone when you get arrested.
And a cop's ability to access an encrypted phone is not going to change whether they immediately search it or not.
So neither of those reasons, which are the ones the government gave, are compelling enough to amount to a destruction of evidence case like the heroin in a cigarette case.
Right.
Now, I saw a speech by Jonathan Turley one time that was just masterful, really, about how the war on drugs was used to erode the Fourth Amendment.
And he went off on a kind of chain of consequences about roadside searches and how it had always been, you know, hey, you need a warrant, just like any other search on the roadside.
But then because of the war on drugs, they started, you know, well, you know, you're out on a public road after all.
And so and you're in a license, you have a license and you have tax stamps and registration stamps on your car and all these kinds of things.
And so it's not quite your private property free from search as much anymore.
And they started lowering the threshold and lowering it, lowering it and using excuses like, come on, we can't go to the judge's house.
And, you know, in the middle of the night, miles from here and wake him up and that kind of thing.
And then, but Turley pointed out that, yeah, but, you know, ever since the invention of the cell phone and the text message and all of that kind of thing, they didn't repeal their precedent.
That said that going to the judge's house would be too much of a hassle or whatever.
There's leftover from a long time ago when, in fact, it wouldn't be a hassle at all to get a warrant on the roadside because of the technological advance.
But, oh, well, the precedent set and we're going to go ahead and only get worse from here.
Never better kind of thing.
And so it seems like they've got, you know, so many loopholes that, I mean, really, they can get a warrant just as easy as not at this point.
So really, what difference does it make?
All our cell phones are belong to them anyway.
Well, that's that's that's what I think is the honest takeaway is that, you know, for arrest warrants, I suspect the cops will build in a warrant to search a phone.
Roberts did still allow for exigent circumstances to require search, although I don't know what what good it you know, what good it's really going to be.
So you're right.
For those circumstances, I think that the reality is still the same, although I think it makes it a lot harder for the government to use a traffic stop as the excuse to get your phone to search to find the evidence that they probably already have via some illegal means to then convict you on a drug case.
So you're talking about the parallel construction.
This won't be an excuse they can use.
Right.
And I mean, it's not just parallel construction.
I mean, if if if cops want to harass you, that's what they do anyway, is they stop you and then they kind of keep searching until they can find some legal means.
And that's actually something Robert said.
He's like, if you search through somebody's phone, you're going to find some evidence of illegality in there, whether it's that you were speeding or whether it's that, you know, what have you.
But but that's sort of the point that, you know, those cell phones and and again, the language on it was, I think, really parts of I mean, at the end, he sounds like the frickin ACLU.
He's like, here's the instructions we give you get a warrant.
And so, you know, it was pretty good on a lot of levels.
And he he maps out there's about eight paragraphs in the middle of the opinion, which I think will be cited from significantly as we go forward.
Yeah.
Well, and.
Considering whose clerk was writing it, too, that's pretty good.
And now I see what you mean when I saw you on Twitter pretty excited earlier that, hey, I think there's a lot to work with in this decision for citing on NSA cases all around here.
Right.
Right.
I mean, I think, you know, two years ago in the US versus Jones decision, which was the GPS tracking equals a search, we had three different opinions.
We had Sam Alito writing, you know, the plurality, which basically said this is property based.
We had people like Breyer, who can actually be terrible in law enforcement issues saying, well, there may be limits.
And we had Sonia Sotomayor by herself saying, look, you know, technology requires that we reconsider these precedents.
And I think it is not too much to say that today's opinion represents the rest of the court coming around to her position.
It sure is nice to hear you say things like that, everybody.
Hold on.
We're going to be right back with empty wheel.
I can't promise it's all going to be such good news, but it's going to be good.
So hang around.
We'll be right back after this.
All right, you guys.
Welcome back.
I'm Scott Horton.
This is my show, the Scott Horton Show.
I'm talking with Marcy Wheeler.
Emptywheel.net is her website and her handle on Twitter.
And we're talking about this unanimous Supreme Court decision.
It says the cops can't just go rifling through your cell phone on a fishing expedition unless they've got probable cause they can show a judge to get a warrant to do so, which it ain't perfect, but hey, it's something.
And like you're saying, you're saying this is the Supreme Court coming around to the point of view that, you know, we really need to reassess all this kind of thing.
It seems to me like it's sort of like the Geneva Convention prohibition on torture is really vaguely written deliberately in order to be all encompassing, right?
No degradation and this kind of thing.
So where it can kind of apply very broadly.
Same thing with amendment number four, papers and effects.
My effects are protected.
Sounds to me like that means all of my property of any description whatsoever, right?
I mean, how can they define that down?
That means the things that belong to me.
And so I guess I'm always afraid when the Supreme Court is ruling on things like this because their word is final for when they get it wrong.
It can be a real hassle, but when they get it right, it can really matter.
And like you're saying, some of the language in here is so good, it's bound to be invoked in all the rest of these court cases.
Sam Alito's concurrence was pretty funny because he's like, I just think we need something more complex than just saying Fourth Amendment.
I laughed so hard.
I mean, you know, he's supposed to be conservative justice, yet the Fourth Amendment is simple.
And that's what Robert said.
Get a warrant.
So that's great.
You know, we can finally get back to the simplicity of the Fourth Amendment, you know, in a limited fashion.
Although I do think that this opinion is going to have is going to impact other things.
Right.
Yeah, that's great.
You know, it's it's pretty rare.
The Bill of Rights wins victory like this.
So that's really good.
Now, you're not going to make me sad now, are you?
Don't do that.
Oh, no.
Well, this one is still good.
I got two more good news.
And then if we still have time, I'll get to some bad news.
I'm going to run out the clock.
OK, OK, you can do it.
I know you can.
Well, I'll go ahead and give you both and then you can, you know, measure the time out however you like.
First of all, some federal judge struck down the no-fly list thing.
That's absolutely unbelievable.
You got to fill us in.
And then I saw you tweeting something with our friend Cade Crockford on the Twitter there about a judge ruling against this FISA Amendments Act Section 702.
Oh, no.
See, now you are bringing me down.
That's a bad decision.
I was trying, though.
I thought you were also going to talk about drones, but we did that already this week.
The 702 decision is in Portland, the case of the Christmas Day bomber, not bomber, the Christmas Day FBI sting, pretend to press a button, not really a bomb case.
Right.
And in that case, he challenged the constitutionality and the judge said, no, it is constitutional.
A little bit of crazy decision, which I'll write about in the next couple of days, because it makes no sense.
I mean, his understanding of the FISA court is just nuts, you know, because he kind of made assertions in one line and then the next line said, but the FISA court does something entirely different.
So it doesn't make any sense.
But, you know, he's a judge and he gets to not make any sense, I guess.
Oh, boy, did I read that tweet wrong then?
Yeah, sorry.
No, Cade was telling me to get on it and depress everybody.
And here I was wallowing in victory.
And then the no fly.
Hey, you get to celebrate when you win one.
It's OK.
I was going to spend the whole day and here you want to bring me down the no fly thing.
That's a good one, right?
Yes.
And I haven't read the opinion in detail, but basically what it argues is that the FBI is not not providing people due process to be able to get off of it, which is not only important.
I mean, the plaintiffs are, as ACLU always does, the plaintiffs in that case are really it's very easy to be empathetic to them because, you know, veterans and solid upstanding imams and a bunch of people who have no business on the no fly list.
But also, I think that by unpacking the the sausage making that the government uses to put people on the no fly list, we're really going to be able to connect the back end, the process the NSA uses to kind of dragnet everybody and decide which Muslims they're going to selectively torment and then the front end, which is where it starts ruining people's lives.
So it's unclear what's going to be rolled out, what kind of due process is actually going to happen.
You know, I suspect that the government will try and appeal this because they hate losing any prerogative as as as the executive branch.
But for now, at least it it brings something.
I mean, we've got two decisions in a row that say that the no fly list is unconstitutional.
And so, well, not the earlier one wasn't quite that strong, but but regardless, two decisions in a row that say that the no fly list doesn't fly.
And I think it there's no there's once you recognize how central flying is to people's lives, I think that that decision can only be upheld.
And, you know, the more we insert due process back into the places where the war on terror has removed them, the far better off we are going to be as a country.
And frankly, the far better off I mean, even from a from an efficacy standpoint, this sausage making process that picks which Muslims to torment doesn't work.
I mean, the reason these people who have no business on the no fly list are on it is because their process doesn't work.
And so the way to fix that is with due process, but also with enough transparency to be able to point out that their algorithms or whatever the heck they're using just simply don't work.
Right.
Yeah, yeah.
A little bit of accountability to to set things, you know, more properly.
You know, you referred to that case, the the the entrapped Christmas plot there.
You know, these kinds of things are going on in our country all the time where the FBI, they're just basically, you know, holding their jobs, spending their budget and trapping idiots.
And but meanwhile, Faisal Shahzad is trying to blow up Times Square and and Zarnia is trying to blow up Boston.
And but they're still screwing around, just doing things the old way, because that's what works well for them, not works well for security for the American people whatsoever.
So there has to be accountability or else they just keep doing the same thing.
Yeah, so.
So, yeah, really exciting.
You know, yeah, I mean, I can imagine, you know, like on airplane, airplane one where like a little kid sets off the metal detector and then a bunch of Islamic jihad terrorists walk right through behind him with shoulder fired missiles and stuff.
That's the kind of thing I'm imagining.
The bad guys squeaking through because they're too busy, you know, hassling a little old lady in a wheelchair, you know, the the equivalent.
So good point there.
Yeah.
Now, so I'm out of good things to ask you about.
You can bring up stuff if if you know of any other good news.
But otherwise, I need to ask you if you know anything more about the drone memo that you think you need to mention to us and or about the CIA report that now I think has bureaucratically moved from one place to the other.
And now it's left only to the president, whether he's going to release this thing or not.
Yeah, which which depressing thing you want me to talk about in five minutes?
Oh, in fact, you only got like two and a half.
So, all right.
Well, the other short version is the torture memo.
CIA says it has delivered it to the president and he will make the final decision.
And one of the things that's been in the background through this whole declassification process, not only is CIA trying to protect itself, of course, but also the president is trying to protect the allies who helped us torture.
So one of the things that the White House is probably going to spend the next two months redacting because they told Jason Leopold, who has a FOIA in on this, that he's going to get it or that it will become it will be delivered to the Senate at the end of August.
So they're going to spend two months, you know, crossing out all the places that talk about the the British torturing or the Polish hosting hosting torture sites.
So that's where we're at.
There you go.
Like, we don't already know all about that.
Yeah, precisely.
I mean, I just explained everything that's going on, but whatever.
Right.
Yeah, it's ridiculous.
But I guess they figured the longer they draw it out, the less anybody's going to be in trouble.
And they're going to release.
Yeah.
And they'll release it when everyone is off at the beach.
So I'll be here, though, reading it.
Oh, that's good.
I mean, and and yet we're still only talking about the summary.
Right.
They're never even they're not even considering releasing the actual six thousand page thingamajig.
Am I right?
Correct.
Although the when when Dianne Feinstein, to her credit, when she released it, she says eventually the whole thing will be released 20 years from now.
I can't wait to read your blog that way.
Holy crap.
All right.
That's the great Marcy Wheeler.
Empty wheel dot net.
Thank you, Marcy.
All right.
Take care, Scott.
All right, you guys.
That's it for the show today.
We'll be back here tomorrow noon eastern on Liberty Radio Network.
Scott Horton dot org.
Scott Horton dot org slash donate.
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