In the News
A number of other friend-of-the-court briefs were filed Monday. The Reporters Committee for Freedom of the Press and 19 other media organizations, filing in support of the ACLU’s client, warned of the chilling effect on First Amendment freedoms that can result from easy law enforcement access to the location information of reporters and their sources. The Center for Competitive Politics, Center for Media Justice, Color of Change, Americans for Prosperity Foundation, and Tea Party Patriots discussed the implications of warrantless government access to cell phone location information for people exercising their First Amendment rights to free speech and association…
The Knight First Amendment Institute wrote on behalf of 19 technology experts to highlight the increasing precision of cell phone location data and the highly sensitive information about people’s lives that the data can reveal…
“The number and variety of organizations and experts filing represent the widespread recognition that your cell phone’s location history is your own business, and the government needs to have a good reason to get its hands on it,” said ACLU attorney Nathan Freed Wessler.
People’s Pundit Daily: Big Tech Asks Supreme Court to Protect Cell Phone Location Data
Big technology companies filed a brief late Monday night asking the U.S. Supreme Court (SCOTUS) to protect people’s cell phone location data. The friend-of-the-court brief was submitted in the case of Carpenter v. United States, which will be argued in the fall…
The American Civil Liberties Union (ACLU) is representing Timothy Carpenter, a man who had months’ worth of cell phone location information handed over to police without a warrant.
In 2011, the government obtained from cell companies months’ worth of phone location records for suspects in a robbery investigation in Detroit, without getting a probable cause warrant. In the case of Mr. Carpenter, those records spanned 127 days and revealed 12,898 separate points of location data.
That’s an average of over 100 location points per day.
The ACLU is joined by 20 media organizations warning of a chilling effect resulting from easy law enforcement access to the location information of reporters and their sources. They are also joined by groups from every end of the political spectrum, including the Center for Competitive Politics, Center for Media Justice, Color of Change, Americans for Prosperity Foundation and Tea Party Patriots.
Washington Times: Tech companies ask Supreme Court to block cellphone data grab
By Alex Swoyer
Some of the world’s biggest tech companies pleaded with the Supreme Court this week to update decades-old precedent governing telephones, saying that cell-tracking technology threatens Americans’ most fundamental privacy rights…
Lower courts have split over whether data held by a third party is protected, and Selina MacLaren, an attorney for Reporters Committee for Freedom of the Press, said there’s a lot of excitement surrounding Carpenter’s case.
She said the case could even affect the way reporters go about their jobs.
“This type of surveillance threatens to reveal where journalists go and where their sources go,” she said.
David Keating, president of the Center for Competitive Politics, said he feared governments trying to monitor Americans engaged in other First Amendment activities such as freedom of association.
“In many respects, this is potentially a lot more serious than all the concern about the NSA telephone call records and where they’ve analyzed calls being made overseas and such, because this is tracking movements of U.S. citizens in the United States and the government being able to get that information without having to get a warrant,” said Mr. Keating.
The Oregonian: Oregon judge to decide if political spending limits are legal
By Gordon R. Friedman
A Multnomah County judge heard hours of what he said were “illuminating” arguments Tuesday for why new political campaign spending limits should be allowed or overturned.
Multnomah voters overwhelmingly approved new limits on campaign contributions last year. But the Oregon Supreme Court, citing the state constitution’s strong free speech protections, has largely said no, no, no…
Attorney Owen Yeates, representing the Taypayer Association of Oregon, countered: “It doesn’t matter if 89 or 99 percent of the voters agree to something if it tramples on the rights of voters and of speakers in the county,” he said.
“We have to protect the ability of people to make meaningful communications to the public. And here, that costs money,” said Yeates, of the Center for Competitive Politics, a Virginia-based group that has argued against campaign finance limits.
Bloch, the judge, promised to provide as a ruling “as quickly as I possibly can.” That’s expected to be before September 1, when the new campaign spending limits take effect.
He said his decision will likely not be the final one, given that both sides have indicated their openness to appeals.
CCP
CCP: Warrantless Location Tracking Imperils Right to Free Association
The Center for Competitive Politics (CCP) and four other organizations from across the ideological spectrum filed a brief Monday in support of the plaintiff in Carpenter v. United States, a case challenging warrantless collection of cell phone location data. While the basis of the challenge is the Fourth Amendment, the brief informs the Supreme Court that First Amendment associational rights are also at stake. The Supreme Court agreed to hear the case on June 5.
The brief was joined by the Center for Media Justice, Color Of Change, Americans for Prosperity Foundation, and Tea Party Patriots.
The ability to precisely track citizens allows the government to effectively surveil an individual’s civic and political life. That ability, if unconstrained by a warrant requirement, threatens the right to free association.
“The ability to pinpoint a person’s location across time makes it possible for the government to track social and political relationships with astonishing accuracy,” said CCP Legal Director Allen Dickerson. “A warrant requirement is a straightforward way to prevent unreasonable or politically-motivated inquiries into individuals’ private associations.”
In a world where tracking information is so precise that individual rooms can be differentiated, the locations of multiple people can be amalgamated, allowing the government to assemble an extraordinarily precise picture of citizens’ memberships, meetings, and associations.
Consequently, the government’s warrantless access to this information threatens Americans’ First Amendment right “to pursue their lawful private interests privately and to associate freely with others in so doing.” NAACP v. Ala., 357 U.S. 449, 466 (1958). After all, associational liberty needs “breathing space to survive,” NAACP v. Button, 371 U.S. 415, 433 (1963), and must be “protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.” Bates v. City of Little Rock, 361 U.S. 516, 523 (1960).
The warrantless collection of geolocational data from third parties risks short-circuiting these precedents and undermining the right to private association. This information offers governments the ability to reverse-engineer not merely groups’ membership lists, but to also identify people with sympathy for or a passing interest in an organization’s aims. Left unchecked, this power will discourage Americans from engaging in public gatherings and private meetings of all types, chilling both social and political association and the collective speech it fosters.
CCP Job Opening: Attorney, First Amendment Litigation
The Center for Competitive Politics is expanding its litigation team. We are looking for an experienced attorney to take a leading, independent role in First Amendment cases brought in federal and state courts.
[Please click on the link above for a detailed description of job responsibilities, requirements, and instructions on how to apply.]
The Courts
New York Times: Justice Dept. Demands Data on Visitors to Anti-Trump Website, Sparking Fight
By Charlie Savage
The Justice Department is trying to force an internet hosting company to turn over information about everyone who visited a website used to organize protests during President Trump’s inauguration, setting off a new fight over surveillance and privacy limits.
Federal investigators last month persuaded a judge to issue a search warrant to the company, Dreamhost, demanding that it turn over data identifying all the computers that visited its customer’s website and what each visitor viewed or uploaded…
In court filings, Dreamhost argued among other things, that the demand was unreasonably broad, violating the Fourth Amendment, and could make innocent people afraid to view or communicate with websites containing political content, violating the First Amendment…
“People should be free to exercise their legitimate free-expression rights and explore new points of view without worrying that any digital footprints they leave could land them in a government database later,” said Sarah St. Vincent, a Human Rights Watch researcher and advocate who focuses on national security, surveillance and domestic law enforcement. “That could have a real chilling effect on web-based free speech.”
Brennan Center: Disclosure Gets Another Chance in Court
By Brent Ferguson
When the FEC doesn’t act, the law allows citizens to step in and ask a court to declare the correct interpretation of law and order the FEC to conform. But a federal trial court recently refused to do so, expressing an extremely deferential regard for the FEC’s decisions.
That case is now on appeal before the Court of Appeals for the D.C. Circuit. Its outcome will say a lot about whether people will be able to hold secretive political spenders accountable and get information they’re entitled to about who is writing seven-figure checks to support which candidates and which interests candidates may therefore be inclined to favor.
The dispute centers on a $4 million ad campaign targeting a raft of congressional contests in 2010. Starting shortly after the Citizens United decision, a group calling itself the Commission on Hope, Growth, and Opportunity (CHGO) bought a series of ads urging voters to “pull the plug” on certain incumbents – election ads where a sponsor is typically required by law to name its donors. But CHGO has shown determination to keep its donors secret.
FEC
Bloomberg BNA: FEC Eyes Planned App for Rounded-Up Contributions
By Kenneth P. Doyle
The Federal Election Commission is set to consider Aug. 17 whether to approve a plan for a new app that would allow users to round up the change from purchases and contribute the rounded-up amount to Democratic congressional candidates.
The request for an FEC advisory opinion (AO 2017-06) came on behalf of entrepreneurs Eli Stein and Jeremy Gottlieb was filed by attorneys Jonathon Berkon and Tyler Hagenbuch of the firm Perkins Coie, which represents Democratic candidates and groups. The request said the creators of the new app want to use it to fund contributions to Democratic candidates for the U.S. House.
A user of proposed app could, for example, purchase an item at the store for $13.45. The app would round up to $14 and the user could select a candidate or candidates to receive the difference of 55 cents as a campaign contribution.
“Due to the current groundswell in voter and donor interest in swinging the U.S. House of Representatives to Democratic control, the Project plans to market the App to Democratic donors and will feature only Democratic candidates on the App,” Berkon’s letter said. “While the Project may decide to expand its user base to supporters of other parties in the future, doing so at this time would threaten the commercial viability of the Project in its startup phase.”
Quartz: One of the two agencies that probes meddling in US elections is completely broken
By Heather Timmons
The by-now infamous meeting between Donald Trump Jr and a Russian lawyer in June 2016 has become a focus for the FBI’s probe into last year’s US election campaign. The agency has assembled a grand jury and issued subpoenas to examine evidence related to the meeting…
But another US government agency, the Federal Election Commission (FEC), should be involved too. The commission’s job is to investigate civil violations of the Federal Election Campaign Act, including the ban Trump Jr may have broken. However, the FEC is so profoundly dysfunctional that both current and former employees tell Quartz they doubt it will even launch a probe over Trump Jr’s meeting, much less hand out any punishment.
The FEC’s board needs to take several votes to even agree to investigate the meeting, says a current employee who asked not to be named, and whether that will happen is unclear. “I don’t think that there is any chance that they will actually investigate,” says Ann Ravel, a Democratic former commissioner of the FEC, who is now a fellow with New America, a think tank.
The States
Gotham Gazette: A Rarity: City Council Candidate Releases Detailed Reform Agenda
By Ben Brachfeld
Candidates across the city this year are running for City Council on all sorts of issues, but only one has released a detailed list of government, campaign finance, and voting reform proposals. That agenda, called “Sunlight in the City,” has been put forward by Keith Powers, a Democrat competing in the crowded field to replace term-limited City Council Member Dan Garodnick on Manhattan’s East Side…
Sunlight in the City includes several planks directly related to lobbying, including more disclosure of lobbying meetings held by City Council members and more detailed lobbyist reporting to indicate, among other things, “who got lobbied, who did the lobbying, and the specific bill or subject matter.”…
Powers also calls for lowering the individual contribution limit to Council candidates campaigns from $2,750 to $1,225, “to make small donors and large donors equal in their donation capacity.” Ideally, his agenda says, he wants to see 100% publicly financed elections in the city to replace the city’s current matching funds mechanism, starting with a pilot program for special elections. Kallos introduced a bill to increase the matching funds payout for Council races “to a full match with the expenditure limit,” which is currently in committee.
