Civil Rights, Supreme Court

Sotomayor on surveillance: Ahead of the curve

The Wall Street Journal’Law Blog and other outlets made news of a recent appearance by Justice Sonia Sotomayor at the Oklahoma City University School of Law.

Her remarks covered an array of subjects, but the comment grabbing headlines had to do with drones and surveillance technology.

Here’s an excerpt:

There are drones flying over the air randomly that are recording everything that’s happening on what we consider our private property. That type of technology has to stimulate us to think about what is it that we cherish in privacy and how far we want to protect it and from whom. Because people think that it should be protected just against government intrusion, but I don’t like the fact that someone I don’t know . . . can pick up, if they’re a private citizen, one of these drones and fly it over my property.

Sotomayor noted some of these technological advances were “frightening” and that, if left unchecked, they could reach “Orwellian” levels. She called for more involvement from the public in debates surrounding privacy—suggesting perhaps that major reforms are needed.

None of this is a new concern for Sotomayor. Even before the Edward Snowden disclosures revealed the extent to which the National Security Agency amasses data from average Americans, the justice had expressed skepticism at the reach of technology in the hands of government.

In United States v. Jones, a 2012 case dealing with GPS surveillance, Sotomayor wrote at length about her reservations with the technology, and how it could be used for way more than merely tracking a person or his motor vehicle.

“GPS monitoring generates a precise, comprehensive record of a person’s public movements,” she wrote, in a way “that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”

This statement matters because Jones only dealt with GPS tracking under the Fourth Amendment, the usual vehicle for constitutional discussions surrounding privacy. (The Supreme Court later quoted this language word for word in Riley v. California, its landmark ruling on cellphone searches earlier this summer.)

But to Sotomayor, the knowledge that the state “may be watching” could have a chilling effect on other spheres protected by the Constitution, like the people we associate with and our expressive conduct. She portended that the invasion of those areas with “unfettered discretion” may forever change the dynamic “between citizen and government in a way that is inimical to democratic society.”

All of this was pre-Snowden, pre-Glenn Greenwald, and pre-outrage about the NSA, secret courts, and the so-called surveillance state.  Sotomayor’s new remarks on drones touch on something deeper: how our privacy relates with private actors. The Facebooks. The Googles. The many service providers who offer free stuff in exchange for a glimpse into a person’s private life.

The Constitution is of no help with any of that. Neither does it protect against other people’s drones flying over your property. But it can curb government surveillance.

This may explain why Sotomayor used Jones to suggest a new way of looking at privacy under the law—one that, at the very least, puts a check on government authorities. The standard: “a reasonable societal expectation of privacy in the sum of one’s public movements.” Under this view, Sotomayor would examine “whether people reasonably expect that their movements will be recorded and aggregated in a manner” that allows the government to piece together a profile of virtually any citizen it wants.

Scholars call this a “mosaic theory”—or whether it’s reasonable for the government to paint a portrait of a person based on bits and pieces of data collected over a period of time. If it isn’t, it’s illegal, and the government needs a warrant.

But the mosaic theory is just a theory; it’s not the law in matters of privacy. The Supreme Court has yet rule whether such bulk collection of personal data is a “search” subject to rigorous constitutional protections. And if it does, which is likely, it will be a major constitutional breakthrough.

Lower courts have begun to grapple with that very question. Earlier this month, a Manhattan appeals court heard arguments from the ACLU and the federal government in a lawsuit seeking to invalidate the NSA’s mass call-tracking program. A sister court in Washington, D.C., is set to hear similar arguments in a separate suit in November.

However those courts come out will determine whether the Supreme Court gets involved. And if things get to that point, it will take Sotomayor and at least four of her colleagues to give us an idea of whether the Constitution and society tolerate mass surveillance, drones, and the brave new world those things represent.

Civil Rights, Supreme Court

Latinos and Ferguson

A survey by Pew Research during the height of the Ferguson protests revealed that Latinos were not as interested as blacks and whites in the news surrounding the death of Michael Brown.

Of those surveyed, a mere 18 percent said to be following the events “very closely”—lower than blacks and whites at 54 and 25 percent, respectively.

Pew did not explain the gulf, but a few interrelated factors come to mind: limited news coverage by Spanish-language outlets; little journalistic presence on Twitter, where a number of reporters have been providing live updates; and the fact that Pew conducted the survey by phone, which may or may not be at odds with a conflict that has largely played out on social media.

Another factor stands out. According to U.S. Census figures, only 2.7 percent of St. Louis County, which encompasses Ferguson, is Latino. And Latinos only make up 1.2 percent of Ferguson itself. The absence of Latino faces in the protests may have contributed to this apparent apathy.

Independent of the numbers, what happened in Ferguson and the Latino reality in the United States are part of a shared history of discrimination. For decades, both blacks and Latinos have had much in common as targets of government-sanctioned abuse and inequality; Ferguson is only a page off the same book.

American jurisprudence provides an example. In May, the landmark Brown v. Board of Education, the historic equal-protection case, turned 60. What most people don’t know is that almost a decade prior to Brown, the courts had to intervene in a case where Latino children were suffering the same kind of discrimination as blacks in public education.

In Mendez v. Westminster, decided in 1946, a federal court in California declared that the segregation of children of Mexican descent “foster[s] antagonisms in the children and suggest[s] inferiority among them where none exists,” and that such  action by the state “manifests a clear purpose to arbitrarily discriminate against the pupils of Mexican ancestry and to deny to them the equal protection of the laws.”

Does that sound familiar?

Mendez was only one link in a long chain of segregation in California and the Southwest, where it wasn’t uncommon to find “Mexican seats” or “Mexican days” in places of public accommodation—the same separate-but-equal treatment experienced by blacks in the South.

But Mendez never made it to the Supreme Court, and thus it went largely unnoticed. It wasn’t until Hernandez v. Texas, decided two weeks prior to Brown, that the high court, for the first time, acknowledged that the Constitution guarantees equal protection of the laws to all, not just to blacks and whites. For the first time, Latinos had a legal weapon with a Hispanic name to call their own.

The weapon, it turned out, was of little use. With the passage of time, the Hernandez breakthrough all but vanished.

It is evident in today’s criminalization and stigmatization of a person’s immigration status. In the mass deportations of people without a criminal record. In the rampant use of force by border patrol agents. In the lack of protections for unskilled migrant workers. In the elimination of affirmative action in states such as Michigan and Florida. In laws that hinder the right to vote. In the gross application of stop-and-frisk tactics in New York and Philadelphia. In the high number  of Latinos in federal and state custody. In the dearth of economic opportunities stemming from some or all of the above.

It is for those reasons that Ferguson’s problem is also a Latino problem. The protests of the past few weeks are rooted in a shared legacy of discrimination and discontent.

Other Legal Battles, Supreme Court

Jesus and Hobby Lobby

If I had argued the Hobby Lobby case before the U.S. Supreme Court back in March, my opening statement would’ve gone something like this: “This case is about God and money, and how Jesus said that you cannot serve both.”

Or maybe like this: “This case is about Christians and government, and how believers are called by their Master to give Caesar what is Caesar’s, and God what is God’s.”

This one’s good, too: “This case is about Jesus and women, and how he elevated their status in a patriarchal society that viewed them as second-class citizens.”

I can probably think of others.

Not sure how the justices would’ve reacted to any of those openers, but the court’s controversial decision in Burwell v. Hobby Lobby—ruling that a closely held corporation can have deeply held beliefs and deny contraceptive coverage based on those beliefs—made me think about what Jesus would have made of the debacle. Wasn’t this a win for religious liberty after all?

The Supreme Court doesn’t shy away from the subject. Just this past term, in Town of Greece v. Holloway, it sided with a New York town in upholding its practice to open its townhall meetings with prayer—a custom the court ruled consistent with American tradition and not at odds with the First Amendment.

That ruling, widely praised by evangelicals, too made me think of its implications for religious liberty. For many—for me—religion is something deeply personal and sacred, reserved for moments of devotion or the sanctuary. But Town of Greece was a sweeping decision, reaffirming the notion held by some of America as a “Christian nation.”

So, W.W.J.D.?

The biblical record offers some clues. Jesus was big on prayer, but a minimalist about it. The Lord’s prayer is about 70 words long. The Gospels have no record of him praying on government premises. In the face of Pontius Pilate—one of the few times he stepped on government property—he barely mustered a word. He preferred quiet prayer, in the wee hours of the morning, all by himself. In a parable denouncing self-righteousness, he took issue with religious leaders who prayed pompously, within earshot of those they viewed as less-than-holy.

The narratives that have emerged from the Hobby Lobby ruling—religious liberty, the rights of women vis-à-vis faith-based corporations—are also curious in light of what Christ stood for, or didn’t stand for.

Laying aside whether Christ would’ve cheered the outcome of a Roman tribunal—Hobby Lobby is being hailed as a major victory by Christians—Christ had little interest in advancing political agendas or mounting challenges to the imperial regime. When asked whether it was right to pay taxes to the Roman emperor, he minced no words: “Give to Caesar what is Caesar’s, and to God what is God’s.” (The Pharisees, who depended largely on the charity of their Jewish parishioners for sustenance, were not pleased.)

The profit-growing corporate structure hadn’t been conceived at the time, but that didn’t keep Christ from talking about money. A lot.

A young, rich man had the letdown of his life when Jesus told him that the “one thing” he lacked to inherit the Kingdom was to sell all his possessions, give the proceeds to the poor, and follow him. After the episode, Christ famously said: “It is easier for a camel to go through the eye of a needle than for someone who is rich to enter the kingdom of God.” In Christ’s economy, love of God and mammon couldn’t coexist. Years later, the apostle Paul would write to his friend Timothy that “the love of money is the root of all kinds of evil”—another popular adage.

But it wasn’t money in the abstract that Jesus took issue with, but the accumulation of it. He’d much rather his followers “store up treasures in heaven” than on earth, where it holds a corruptible power. When merchants and money changers set up shop in the temple, Jesus wouldn’t have any of it; he turned over tables in anger.

And Christ was a feminist par excellence. Perhaps not the kind that would show at pro-choice rallies. But he was unafraid to look women in the eye, have a conversation with them, and remind them of the value that centuries of paternalism took away from them. That included his mother. His friends Mary and Martha. The Samaritan woman at the well. The woman who touched the hem of his robe. The mothers of the many children he healed. He shunned not one of them. He treated them all with dignity. Religious leaders wanted the death penalty for an adulteress “caught” in the act—curiously, her co-defendant was nowhere to be found—but Christ issued no condemnation. Not one stone was cast.

All of this came to mind as Christians rallied around Hobby Lobby and its owners, entrenching themselves deeper in a culture war with government, federal law, and women in need of contraceptive access.

Probably none of these points were raised in the court filings leading up to the Supreme Court’s pronouncement, or would have mattered much to the justices. But they should at least give people of faith reason to pause and ponder. Is this warfare what Christ had in mind when he called them the “salt of the Earth” and the “light of the world”?

Because embracing religious liberty is one thing. Taking Caesar to court over it is quite another.