ACLU

You aren’t allowed to say if you’ve received a National Security Letter. But there’s no law that says you can’t say that you haven’t received one. Thus, rsync.net has a “warrant canary”–they periodically post a cryptographically signed statement that they have not, to date, received any PATRIOT Act warrants or had any searches and seizures. If they stop updating the statement, then you can draw your own conclusions. The second of these library signs uses the same principle: “The FBI has not been here [watch closely for removal of this sign]." (Via jwz’s blog, where some commenters question whether the recent Washington Post piece by the recipient of a National Security Letter is truthful. Note that the ACLU has a lawsuit going on about this case, which I previously noted back in 2005.) ...

After a year of careful analysis of Judge Jones’ decision in Kitzmiller v. Dover Area School District, the Discovery Institute has determined that the Judge made considerable use of the plaintiff’s Proposed Findings of Fact and Conclusions of Law when writing the section on intelligent design as science in his decision for the plaintiff. Somehow, they think that this common practice of using the Proposed Findings of Fact from the winning side in crafting a decision makes Judge Jones a puppet of the ACLU, even though he’s a conservative justice appointed by George W. Bush. The Discovery Institute has issued a press release touting their findings as though it discredits the decision’s reasoning. This press release demonstrates that they are still smarting over the loss in Dover, still spending their time doing things that have nothing to do with scientific research, and that they have as much credibility on legal matters as they do on scientific matters. More by attorney Timothy Sandefur at the Panda’s Thumb. This press release by the DI was telegraphed by a talk given by Michael Behe earlier this month in Kansas. UPDATE (December 13, 2006): Ed Brayton analyzes the DI report in more detail, including responding to its claims that Judge Jones incorporated “errors” from the ACLU into the decision. UPDATE (December 14, 2006): More responses: Timothy Sandefur, “Is John West Dishonest or Just Ignorant?" and “Casey Luskin–Not Too Bright” at the Panda’s Thumb. UPDATE (December 20, 2006): Wesley Elsberry has looked at how much of the plaintiff’s Proposed Findings of Fact and Conclusions of Law was actually used in Jones’ decision (and how much of that section of the decision came directly from the plaintiff’s filing). Ed Brayton summarizes at Dispatches from the Culture Wars. Casey Luskin has attempted to respond with a defense, but as Ed Brayton shows, he just keeps digging a deeper hole.

I received an email from the ACLU yesterday, informing me that they’ve jumped in on the net neutrality debate. Unfortunately, they badly misrepresent the facts: FREE THE NET: WHY YOU SHOULD CARE ABOUT NET NEUTRALITY The keys to the Internet have always been safely in public hands - until last year, when the FCC suddenly repealed longstanding Internet principles of “neutrality” and non-discrimination.The ACLU is going to make the erroneous claim that I’ve debunked repeatedly on my blog (see the Net Neutrality Index)–that the common carriage requirements on telcos constitute “net neutrality.” They will ignore the fact that cable companies–the main providers of consumer broadband Internet access in the U.S.–have never been common carriers and have never been bound by these requirements. With the blessing of the Supreme Court, a handful of profit-driven telecoms and cable companies now could effectively shut down the 21st Century marketplace of ideas by screening Internet e-mail traffic, blocking what they deem to be undesirable content, or pricing users out of the marketplace. The ACLU is going to argue that we need to create a new bureaucratic regulatory apparatus, giving sweeping new powers to the FCC to interfere with freedom of Internet providers to enter into voluntary contracts with each other and manage their own networks, and specifically prohibiting differential pricing on tiered levels of service and the ability for providers to enter into arrangements with content providers to subsidize consumer bandwidth. Historically, Net Neutrality protections filled the free speech gap. Since those protections were removed last year, nothing prevents network providers from discriminating against Internet users and application and service providers in terms of content, quality of access, and choice of equipment.This is doubly false–the common carriage requirements applied only to the last-mile consumer network connections, not to the ability of ISPs to filter; and it is false that “nothing prevents” ISPs from taking actions which would cause them to lose customers. If you’re like many people using the Internet, you don’t think about whether your Internet Service Provider is intentionally slowing down or speeding up your access to Yahoo! versus Google. Without Net Neutrality, your ISP could do just that. Imagine if your phone company was allowed to own restaurants and then provided good service and clear signals to customers who called Dominos and static and frequent busy signals for those calling Pizza Hut. It sounds outrageous, but it would be entirely possible if the telephone system wasn’t regulated under the “common carrier” framework. The telecoms and cable companies that provide Internet network services, including AT&T, BellSouth, Comcast, Qwest, Sprint, Time-Warner/AOL, and Verizon, have spent over $100 million lobbying Congress and the FCC to eliminate established Net Neutrality protections.Remember, cable companies have never been common carriers, yet this hasn’t been a problem. Why create new regulations and give more power to a government agency that has a history of not only working on behalf of the big incumbents (rather than promoting competition, which is what is needed) but of engaging in actions designed to cause discrimination against certain forms of content through censorship? It makes no sense. The assault on Internet freedom will only get worse. The FCC imposed Net Neutrality protections in merger agreements for certain network providers such as SBC/AT&T and Verizon/MCI, but those protections expire in 2007. And in July 2006, the FCC declined to include any Net Neutrality protections in Comcast and Time-Warner’s acquisition of Adelphia Cable. The pattern of the FCC opposing Net Neutrality is expected to continue, as network providers continue to consolidate into an even smaller pool of Internet gatekeepers. Without the vigorous non-discrimination principles in place before 2005, a few corporate conglomerates will control everything that you can say or do on the Internet. Net Neutrality is needed, and it is needed now.The above argument is a mish-mash of fear-mongering about things that haven’t been an issue, misrepresentation of what regulations have been in place, wild unsubstantiated claims (“a few corporate conglomerates will control everything that you can say or do on the Internet”?), and a failure to look at the actual substantive issues in the network neutrality debate. Their website contains further misinformation: ...

The above headline is justified to the same extent as Stop the ACLU’s headline, “Jailed Terror Suspect Helped ACLU Draft School Religion Rules," as the rules in question were drafted jointly and agreed to by 35 organizations which included the National Association of Evangelicals, the ACLU, the Christian Legal Society, the General Conference of Seventh-Day Adventists, and numerous other religious groups. The “jailed terror suspect” in question was a member of the American Muslim Council, one of the 35 groups involved in creating these rules for the Department of Education under Clinton. This led another conservative blogger to headline this story with the even more deceptively dishonest “Terrorist Wrote Clinton’s School Religion Guidelines." (Via Dispatches from the Culture Wars, where Ed Brayton has been repeatedly responding to this same absurd charge for years.)

Gun rights advocate and “uninvited ombudsman” Alan Korwin has sent out a checklist of his recommendations on the Arizona ballot propositions. I disagree with him on several of the propositions, perhaps most significantly on his recommendation of a yes vote to amend the Arizona Constitution to ban same-sex marriage and any legal arrangements that are “similar to” marriage. Here’s his argument for 107: 107 YES Protect marriage amendment. If people want gay unions, polygamy, bestiality or whatever, I say let them, but not under government sanction and funding. I’d like to see us return to “holy matrimony” without any government involvement. Getting married for tax breaks is so wrong.But this argument presumes the effect of 107 is to get the government out of the marriage business, which it isn’t. Rather, 107 has the effect of enshrining existing statutory prohibitions on a form (or multiple forms) of legal contract between consenting adults into the Constitution, and going further to restrict any such arrangement “similar to” marriage. It isn’t pro-liberty, it’s anti-liberty. It isn’t eliminating special privileges, it is adding them to the Arizona Constitution. It’s perfectly reasonable to argue that nobody should have tax breaks or special privileges under the law, but it’s not reasonable to say that because such privileges are wrong we should restrict them to a particular set of people. That’s not only unfair, it’s unconstitutional–a violation of the equal protection clause of the 14th amendment. It’s like arguing that the government shouldn’t confer support on religion, so we should vote yes on an amendment that limits government support to the Christian religion, and keep it from supporting Islam or other religions. (No doubt there are many Americans who would, quite wrongly, support such a law.) Now, some advocates of Proposition 107 have argued that there is no violation of the equal protection clause because a gay man has the same right to marry a woman as a heterosexual man does. But this is just like arguing that a prohibition on interracial marriage doesn’t violate the equal protection clause because a black man has the same right to marry a black woman as a white man has to marry a white woman–the description of the right is being crafted to exclude the category of person who is being discriminated against. As Ed Brayton has pointed out on numerous occasions, the arguments for the unconstitutionality of a ban on same-sex marriage are of the same form as the arguments for the unconstitutionality of a ban on miscegenation, just replacing “different race” with “same sex.” If you think that the Supreme Court ruled correctly in Loving v. Virginia, you should also think that Arizona’s Proposition 107 violates the U.S. Constitution for the same reasons. See also my previous post on the Protect Marriage Arizona amendment. You may also find David Friedman’s economic analysis of marriage arrangements to be of interest. UPDATE (October 21, 2006): Just to make it clear, THeath has enumerated some specific examples of what opponents of gay marriage are actually endorsing (there are several more if you follow the link)–these aren’t hypotheticals, these are real people: There was the friend I wrote about recently who was turned away from from the emergency room, where his partner had been taken after suddenly collapsing at work, and told he could not be given any information because he was not next of kin. He had to leave the hospital and retrieve their legal documents before he could gain admittance to see his partner when a married spouse would have been waved through without question. My friend was luckier than Bill Flanigan. When his partner Robert Daniel was hospitalized in Baltimore, the couple had their legal documents with them, including durable power of attorney and documentation that they were registered as domestic partners in California. But those documents were ignored by hospital staff and Flanigan was kept from seeing his partner until Daniel’s mother and sister arrived and by then Daniel was unconscious, with his eyes taped shut and hooked to a breathing tube; something Daniel had not wanted. Even having a will didn’t help Sam Beaumont when his partner of 23 years, Earl, died. Oklahoma requires a will to have two witnesses, but Earl didn’t know that and his will leaving everything to Sam had only one. So Earl’s cousins, who disapproved of his relationship and most of whom never spoke to the couple or even came to Earl’s funeral, successfully sued to take away the home and ranch Sam an Earl had shared for 23 years. A married spouse, even in the event of a will lacking enough witnesses, would’ve had the right to automatically inherit at least some of the estate. Further Update (October 22, 2006): Ed Brayton takes apart the Alliance Defense Fund’s white paper on these marriage amendments here. ...

Ed Brayton rightly criticizes the Arizona Civil Liberties Union’s lawsuit to try to prevent Arizona from giving corporate tax credits for donations to organizations that provide private school tuition for students from low-income families. The AzCLU has previously failed in two lawsuits to eliminate the state income tax credit for individual donations to private school tuition organizations. There is no reason to believe this third lawsuit will be anything but a waste of money. As Ed points out, this is not a violation of the establishment clause of the Constitution (or the Arizona Constitution’s prohibition on state funds being used to promote religion) because no state funds are going directly to any religious organization. I support the Institute for Justice on this issue, and this is a reason I’ve never given funds to the AzCLU (though I support the ACLU Foundation). I am a beneficiary of the individual state tax credit–I annually make the maximum qualifying contribution to the Arizona School Choice Trust, which is the single most efficient charity I donate to (100% of donations are distributed as tuition payments for students from low-income families; salaries for employees and administrative overhead are paid by another private organization). UPDATE (June 7, 2007): Judge Janet Barton granted the Institute for Justice’s motion to dismiss this case, back in March. UPDATE (March 12, 2009): The Institute for Justice won this case again today in the Arizona Court of Appeals.

Paul Pechonis was arrested at his home for allegedly threatening the life of a police officer on his website. This was a police officer who allegedly threatened to hold a gun to the head of his son. That arrest was videotaped with the consent of all parties except the police, by a camera in Pechonis’ home. The video was placed online by Mary Jean, who has been threatened with felony charges for posting it. A federal judge issued an injunction supporting Jean, which the Attorney General has appealed. Jean has the support of the ACLU of Massachusetts and the lawfirm of Choate, Hall & Stewart. Jean is the webmaster of conte2006.com, a website critical of Worcester County district attorney John Conte, which is where the video is hosted. You can also find the video on YouTube. Although the video has been described by some as showing an “invasive search” without a warrant, the officers say they are just checking the home to see if anyone else is present. They are not shown moving or opening anything on camera, and the search is very brief (just a few minutes)–I don’t see any evidence of an “invasive search." Now prosecutors have threatened Pechonis, issuing a cease and desist order for merely linking to the video of his arrest from his own website. Good job, prosecutors–you’ve just ensured that there will be much more attention to this video and Pechonis’ case. (Hat tip to The Agitator.)

Although the ACLU’s lawsuit against AT&T in Illinois was thrown out, a separate case in Michigan filed on January 17 of this year against the NSA for warrantless wiretapping without approval of the FISA Court has resulted in a ruling by U.S. District Judge Anna Diggs Taylor that the practice is unconstitutional and must stop immediately. This is not the final decision in the case, but the granting of an injunction for the plaintiff. The Electronic Frontier Foundation’s lawsuit against AT&T also continues.

While the Electronic Frontier Foundation’s lawsuit against AT&T continues, U.S. District Judge Matthew F. Kennelly today threw out the ACLU’s lawsuit against the National Security Agency for collecting call detail records from AT&T, MCI, and other providers (though not, apparently, from Verizon or BellSouth). Lippard (2006-12-09): Correction: This ACLU lawsuit that was thrown out was against AT&T. The ACLU lawsuit against the NSA in Michigan was a victory today for the ACLU. ...

Ed Brayton’s Dispatches from the Culture Wars has an excerpt from an article in Christianity Today by Yale Law School Professor Stephen Carter, a well-known black Christian conservative who authored the book Confessions of an Affirmative Action Baby. In the article, Carter is arguing against the common demonization of the ACLU by Christians, pointing out that while he disagrees with the ACLU on the establishment clause, they are also a big defender of the free exercise clause and have consistently supported Christians in free exercise court cases: More to the point, the ACLU is often right about the First Amendment’s free exercise clause, taking on fights that others refuse. It might surprise some critics that the ACLU defends the free speech and free exercise rights of, well, Christians.The larger point of the article, however, is to condemn the mode of argument that characterizes those who disagree as irrational, dishonest, or evil simply in virtue of that disagreement: I am more concerned about a habit of mind that seems to be growing among my fellow Christians, both political liberals and conservatives. That is, we seem to mimic the secular world’s conflation of disagreement with wickedness, as if not sharing my worldview places my critic outside the realm of rational discourse…I’ve seen similar habits expressed by people on both sides of the net neutrality debate. For example, in Matt Stoller’s presentation at the YearlyKos convention, he admits that he doesn’t understand the relevant technical issues (and proceeds to demonstrate it by suggesting that “non-neutrality” will cause dropped calls, when in fact it’s non-neutral QoS that will prevent them). He asserts that it is fun to beat up on “these bad people” and that it is very important that Mike McCurry be personally vilified. That’s explicit endorsement of irrationality, of emotional demogoguery over fact and reason, and should be condemned by everyone in this debate. Ed Brayton concludes: But rational people, people who care about truth and accuracy, must fight this tendency. We must try and evaluate every claim using the same criteria. Does the evidence support it? Are the conclusions drawn from the evidence logical? Any claim that fails to meet those criteria should be rejected, regardless of whether it supports our agenda or not. Likewise, any claim that withstands that scrutiny should be accepted as valid, regardless of whether it supports our agenda or not. None of us will ever be Mr. Spock, but we should strive to evaluate all arguments as though we have no stake in the outcome. Some, like the STACLU crowd, make no attempt at all to do so; we should not emulate them.I agree.