Republicans Urge NSA Surveillance Reform, But What About General Law Enforcement Powers?

The Hill reports on a recent meeting Republican National Committee (RNC) and the resolutions the committee reached at this meeting:

The committee criticized the government’s bulk collection of records about all phone calls, which emerged as one of the most controversial programs revealed in leaks by former NSA contractor Edward Snowden. That NSA effort “is in itself contrary to the right of privacy protected by the Fourth Amendment of the United States Constitution,” the RNC said in the resolution.

The RNC also called the NSA’s classified “PRISM” program, which mines data from the servers of major Internet companies, “the largest surveillance effort ever launched by a democratic government against its own citizens.”

The resolution called for Republican lawmakers to create a new panel “to investigate, report, and reveal to the public the extent of this domestic spying” and to develop recommendations to end “unconstitutional surveillance” and hold officials responsible for the snooping “accountable.”

The Hill notes that this is a notably libertarian move by Republicans, an evaluation with which I agree.

But I have my doubts on how far this libertarian streak goes. For instance, say the RNC confronted the issue of whether law enforcement officers are granted too much discretion under modern Fourth Amendment law. They might be asked to evaluate the expansion of the good faith exception to the exclusionary rule, or the ability to rely on race as a factor when deciding to conduct a traffic stop. These broad instances of the government's law enforcement abilities are likely to draw criticisms from libertarians as well as liberals.

Would the RNC call for reform expanding the exclusionary rule or for revised police practices to curtail their discretion in conducting stops and seizures? I doubt that it would, even though both of those legal doctrines involve the government's interest in law enforcement outweighing people's interests in remedying intrusions on their privacy -- a common theme in much of modern Fourth Amendment law.

Those who protest the NSA's surveillance program would do well to realize that it is only one part of a legal system that tends to grant more weight to the interest of law enforcement than personal privacy. Politicians, activists, and commentators who claim to seek reform must be aware of this context, and frame their concerns accordingly. While programs may be reformed or eliminated, failing to change the underlying system makes their reemergence inevitable.

Technology Companies Demand Surveillance Reform

The New York Times reports:

Eight prominent technology companies, bruised by revelations of government spying on their customers’ data and scrambling to repair the damage to their reputations, are mounting a public campaign to urge President Obama and Congress to set new limits on government surveillance. 

On Monday the companies, led by Google and Microsoft, presented a plan to regulate online spying and urged the United States to lead a worldwide effort to restrict it. They accompanied it with an open letter, in the form of full-page ads in national newspapers, including The New York Times, and a website detailing their concerns.

And from the companies' website:

The undersigned companies believe that it is time for the world’s governments to address the practices and laws regulating government surveillance of individuals and access to their information. 

While the undersigned companies understand that governments need to take action to protect their citizens’ safety and security, we strongly believe that current laws and practices need to be reformed. 

Consistent with established global norms of free expression and privacy and with the goals of ensuring that government law enforcement and intelligence efforts are rule-bound, narrowly tailored, transparent, and subject to oversight, we hereby call on governments to endorse the following principles and enact reforms that would put these principles into action.

The Guardian reports on this development here.  The BBC's coverage is here.

While I think that this is a significant development, and while it will be interesting to see how the government responds to these powerful voices, I want to note that focusing calls for reform to the internet domain may be too limited of a reaction to the government's surveillance.  Those who are concerned with the overreach of government police power would do well to leverage popular discontent with the government's internet surveillance into a broader criticism of surveillance and searches in general.  After all, internet surveillance is only one part of the government's broader surveillance practices and its exercise of police power.

An approach that channels collective interests into broad reforms may end up helping those whose privacy interests are infringed the most -- for example, those who are constantly stopped and frisked -- in addition to achieving stronger safeguards for information shared with websites.  A narrow focus on internet surveillance is the may detract from a push for broader change, and I hope to explore the potential for such change and the potential for distractions in a future paper that I described in more detail here.  I hope to work on this project in more depth once my final exams are finished.

I don't mean to say that this move by the internet companies is a bad thing for privacy advocates.  The call for reform is certainly a step in the direction of limiting government police power, and a general push to limit this power may gain momentum from this development.  But I do want to emphasize that maintaining perspective is crucial -- especially as the big players in this issue make their positions known.

Introduction: Interest Convergence and the Limits of Law Enforcement: Developments, Prospects, and Distractions

In a New York Times Op Ed released yesterday, Professors Devon Carbado, Kimberlé Crenshaw, and Cheryl Harris reacted to Judge Scheindlin's opinion that the New York City Police Department's "Stop-and-Frisk" policy violated the Fourth and Fourteenth Amendments.  (That opinion is available in two parts: here and here).

Carbado, Crenshaw, and Harris focus on how this decision makes little difference to the status quo where the Supreme Court's approach to the Fourth Amendment permits police officers' use of race as a factor in stopping, frisking, and pulling over African-Americans and Latinos.  The government's law enforcement power remains characterized by the vast discretion afforded to officers.

This article is a very good primer on police discretion under existing Fourth Amendment law.  It effectively outlines the various parts of police searches and seizures and does so in a very approachable manner.  The article does not explore how these problems can be solved.  This is not surprising because virtually all of the practices the article discusses have been upheld by the United States Supreme Court.  This means that short of legislative action or systemic changes to police enforcement policies, changes to the status quo face a very difficult uphill battle.

My next project will be to argue that there may be a solution within reach.  Drawing on Derrick Bell's theory of interest convergence, I will outline how recent developments in the Supreme Court's Fourth Amendment jurisprudence indicate that the Court may be willing to give new force to this often-neglected safeguard.  I will then note that current discussions of government surveillance practices and the executive's use of lethal force present an excellent opportunity for a paradigm shift in Fourth Amendment law.  Finally, I warn against potential distractions that may undermine the coalition of interests that the current political climate can foster.

My hope is to have this written and sent out by the end of the current law review slating cycle.  At the same time, I will plan to write a number of posts that correspond to the various parts of the essay I will be writing in order to summarize and outline the arguments I intend to make.  This post is dedicated to the introduction, a more developed version of which appears after the jump.

Marijuana Legalization, Racial Disparity, and Interest Convergence

"A black person in Iowa is more than eight times as likely to be arrested for marijuana possession than a white person, even though both use marijuana at about the same rate, according to a report issued Tuesday by the American Civil Liberties Union" notes the Des Moines Register.  The full report is available here.  The report is a national-level call for the legalization of marijuana due to the racial disparity in those prosecuted and punished for marijuana-related crimes.

This report shows that the real, underlying problem is the detrimental impact of racial profiling and racial disparity in arrest and incarceration rates.  The report's stated conclusion, however, is that "the War on Marijuana, like the larger War on Drugs of which it is a part, is a failure."  This statement, which is the overriding theme of the report, overshadows the evidence of arrest rate disparities by race.  While discussion of race is admirably prominent, the plausible advocacy of the report seems focused on legalizing marijuana.  The conclusions of the article relating to racial profiling of African Americans are limited to several page-long, platitudinous recommendations that "Police Departments Should End Racial Profiling" and (even more naively) "Police Procedures Must Be Fair and Constitutional."  Police departments are not going to simply end racial profiling since race-based stops are usually not going to cause any significant constitutional problems for prosecutions (See Whren v. United States and United States v. Brignoni-Ponce).  Changes on the statutory or law enforcement guideline level that prohibit these practices might make a difference, but that is not what this report advocates.

First, two disclaimers.

First Disclaimer: I'm no expert in critical race theory.  I have done some research into implicit bias and racial performance in other projects, but I am looking to make a point along the lines of interest convergence, a theory I have peripherally explored but would not claim to fully know.  Because of this, I will do my best to make an argument involving interest convergence, but I warn that I may be mistaken in my application of the theory or in the terminology I use.

Second Disclaimer: From what I have learned in my reading on interest convergence, I have my own hesitations regarding the theory.  My biggest concern is that arguments from interest convergence can form intuitive, compelling stories, but it is unclear how much of an actual effect interest convergence has on the development of policies.  I am certain that more research has been done on this point by supporters and detractors of the theory, and I am not looking to explore the debate here, but I just want to make my overall position clear.  The argument that follows sets aside any concerns I have with the merits of interest convergence theory and proceeds from the assumption that the theory is valid.

My argument is that the ACLU's report seems to be a paradigmatic example of interest convergence.  While this report's advocacy may lead to some net gain, underlying problems will remain unsolved and efforts that further the legalization of marijuana may result in an inefficient use of political capital.  

The report and the reforms it advocates harness the power of interest convergence in seeking solutions to problems faced by African Americans.  Ending the war on marijuana would reduce arrests for people of all races.  As the report admits, both Whites and African Americans use marijuana at similar rates, and while Whites are not arrested with the same frequency, they are still arrested and they still face the risk of arrest, even if this risk is lower than the risk faced by African Americans.  This risk would be eliminated for all whites who use marijuana if marijuana were legalized.  Admittedly, this argument applies to those Whites who are interested in smoking marijuana and is therefore not universally applicable (though it certainly would be widely applicable to many in the Los Angeles community).   Furthermore, the report emphasizes the costly nature of marijuana prosecutions and argues that overall legalization will reduce this financial burden on the citizenry.  This argument is structured to appeal both to Whites and African Americans, since the entire citizenry shares in the cost of paying for these prosecutions.

Viewing the report in this manner reveals that marijuana legalization is an indirect way to address racial disparities in arrest and incarceration rates.  There may be a benefit to this policy: the report details the high number of arrests of African Americans due to marijuana-related crimes, and arrests for these crimes would not occur if  these crimes were eliminated.  On the other hand, the legalization of marijuana would do nothing to address racial profiling by police, which is the real reason for the disparity in arrests and incarceration that prompted this report.  The political capital that would need to be spent on advancing the controversial policy of marijuana legalization could be better spent elsewhere, namely on statutes and ordinances that go beyond the limited protections provided by the Fourth Amendment and prohibit the use of race in forming probable cause or reasonable suspicion.  These statutes would have the benefits of directly addressing the problem and would apply to all prosecutions, not just prosecutions for marijuana-related crimes.  This alternate approach may also be perceived as less controversial than marijuana legalization and would be a good initial step towards trying to solve the problem.  Statutes barring race-based searches and seizures would likely run into problems if the marijuana legislation suggested by the ACLU were passed: detractors of the search and seizure statutes could argue that the problem has been solved by the marijuana legislation, or that advocates of new policies would at least need to wait and see the effects of the marijuana legislation before they could make convincing empirical arguments.

As a final thought, there may yet be some merit to advancing the argument about marijuana legalization as the alternative to statutes that prohibit racial profiling and race-based searches and seizures.  Given the apparent option between nothing, search and seizure statutes, or marijuana legalization, the search and seizure statutes might seem like an acceptable middle ground.  Voters may compromise if there is this wider spectrum of policy options.  In the future, organizations like the ACLU that advance marijuana legalization policies should do a better job of developing the middle ground of search and seizure statutes since people who are not willing to go all the way and legalize marijuana may still seize onto the alternative of statutory restrictions on searches and seizures.