Tuesday toon

An editorial from the Los Angeles Times:

Five years ago, Chief Justice John G. Roberts Jr. told a university audience that the challenge for the Supreme Court for the next 50 years would be how to adapt old, established rules to new technology. On Wednesday the court will confront that challenge anew when lawyers for a Michigan man will argue that his 4th Amendment rights were violated when he was convicted of a series of armed robberies based partly on evidence from cellphone records obtained without a warrant.

If the court is serious about protecting privacy in the digital age, it will rule that the government indeed violated Timothy Carpenter’s constitutional rights. In doing so, it will have to overrule as outdated a nearly 40-year-old decision that allowed investigators to obtain personal information about suspects from third parties without a warrant. The court reasoned at the time that individuals have no reasonable expectation that the information collected by telephone companies and other service providers in the course of doing business will be kept private.

Carpenter came to the attention of the FBI when his number was among those obtained from a member of a robbery ring in the Detroit area. Agents retrieved about four months’ worth of Carpenter’s calling and location records from his wireless provider — not with a warrant based on a showing of probable cause that Carpenter had committed a crime, but with a federal magistrate’s order based on the lesser standard that the government had “reasonable grounds” for believing that the records were “relevant and material to an ongoing investigation.”

Katz vs. United States showed that the Supreme Court could adapt the Constitution to changes in technology. It must do so again in the Carpenter case.

Citing records indicating that Carpenter made calls near the robbery sites, a prosecutor told the jury that the defendant was “right where the first robbery was at the exact time of the robbery, the exact sector.”

The U.S. 6th Circuit Court of Appeals upheld Carpenter’s conviction, rejecting the argument that investigators needed a warrant to obtain his cellphone records. The appeals court cited a 1979 Supreme Court decision in which the court upheld the use by police, without a warrant, of a device that recorded the numbers dialed by a telephone customer. Because these numbers were voluntarily shared with a third party (the phone company), they weren’t considered private.

Carpenter’s lawyers persuasively argue in their brief that the detailed and pervasive location data kept by cellphone companies are “far more comprehensive and sensitive” than the phone company records of yore. “It certainly cannot be said,” they add, “that cellphone owners knowingly and intentionally disclose their minute-by-minute movements in historical perpetuity.”

As Carpenter’s lawyers point out, some states, including California, have legislated a warrant requirement for the acquisition of cellphone records. But that doesn’t relieve the Supreme Court of the obligation to enforce a warrant requirement as part of the 4th Amendment.

Some justices have expressed an openness to that idea. In a concurring opinion in a 2012 case involving GPS surveillance, Justice Sonia Sotomayor wrote that people reveal a great deal about themselves as they carry out mundane tasks in the digital age: “People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the email addresses with which they correspond to their Internet service providers; and the books, groceries and medications they purchase to online retailers.”

Given that reality, Sotomayor wrote, “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”

The full court should embrace that insight.

When the 4th Amendment was added to the Constitution in the 18th century, ensuring that the people were “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” meant keeping the police from trespassing on citizens’ physical property.

But in 1967 the Supreme Court had to expand its understanding of privacy guaranteed by the 4th Amendment when it was confronted by a case — Katz vs. United States — in which the FBI attached an eavesdropping device to the outside of a telephone booth. Although there was no physical trespass, the court nevertheless found that the FBI violated the suspect’s 4th Amendment rights. Justice John Marshall Harlan wrote that the 4th Amendment protected against any act by the government that violated a “reasonable expectation of privacy.”

Katz vs. United States showed that the Supreme Court could adapt the Constitution to changes in technology. It must do so again in the Carpenter case.

Trump should keep the ban on elephant trophies

An editorial from the Chicago Tribune Editorial Board

Big-game hunting was once a glamorous pursuit that inspired admiration of its practitioners. Ernest Hemingway went to Africa to shoot lions, rhinoceroses, leopards and other animals. On their safaris, Theodore Roosevelt and his son killed over 500 animals, including hippos and zebras.

But those days are gone. Today, to be photographed grinning over a majestic animal’s corpse is to invite mass condemnation — as Minnesota dentist Walter Palmer learned in 2015 after killing a much-beloved lion in Zimbabwe. Donald Trump Jr. got a taste of the same when he was photographed holding a knife and the severed tail of an elephant he had shot.

A measure of the ignominy that attaches to this pastime came last week when the Trump administration announced its decision to allow the import of trophy elephants bagged in Zambia and Zimbabwe, scrapping a ban imposed by the Obama administration.

There were the expected protests from groups that advocate for conservation and animal welfare. But the move was condemned even by hard-core conservative commentators Laura Ingraham, who tweeted that she feared it would “INCREASE the gruesome poaching of elephants,” and by Michael Savage, who wrote that President Donald Trump would “forever lose the independent, animal-loving voter” if he didn’t reverse it.

Almost immediately, the president did reverse it, saying the step would be put off so he could give it more consideration. Later, he tweeted that its supporters would “be very hard pressed to change my mind that this horror show in any way helps conservation of Elephants or any other animal.”

The argument for allowing such imports is that countries can raise funds for conservation by allowing wealthy hunters to harvest elephants and other big game. If the beasts are a lucrative source of revenue, the theory goes, governments and their people will have big incentives to ensure the health and survival of the species. The Obama administration allowed elephant trophies from South Africa and Namibia, though it banned trade in ivory from African elephants.

It’s not clear how much good can be achieved through the paradoxical policy of allowing elephants to be destroyed in order to preserve elephants. “The hunting-safari business employs few people, and the money from fees that trickles down to the villagers is insignificant,” writes Virginia Morell in The Atlantic. It’s also hard to imagine that a country as badly governed as Zimbabwe can be trusted to police poaching.

In any case, the moral implications make it hard to defend any hunting of African elephants, intelligent animals that are listed as “threatened” under U.S. law. Americans, like people of many nationalities worldwide, have come to grasp the intrinsic value of such creatures.

Trying to justify their hunting undermines the ethic needed to ensure the long-term survival of animals whose numbers have dwindled. Wayne Pacelle, president and CEO of the Humane Society of the United States, asked, “What kind of message does it send to say to the world that poor Africans who are struggling to survive cannot kill elephants in order to use or sell their parts to make a living but that it’s just fine for rich Americans to slay the beasts for their tusks to keep as trophies?”

The day when humans can no longer justify shooting such creatures for mere pleasure is coming. By keeping the ban on these trophy imports, the president could hasten that day.

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