You asked what to do about border searches, and I have some answers.

Following the Ninth Circuit’s decision in U.S. v. Arnold that border guards have unconstrained authority to search your laptop at the border, I wrote a Deep Link on the EFF website called Protecting Yourself From Suspicionless Searches While Traveling.

On April 21st, the Ninth Circuit held in United States v. Arnold (pdf) that the Fourth Amendment does not require government agents to have reasonable suspicion before searching laptops or other digital devices at the border, including international airports. Customs and Border Patrol are likely touse the opinion by Judge O’Scannlain to argue that almost every property search at the border is constitutionally acceptable.

EFF filed an amicus in the case (pdf), arguing that laptop searches are so revealing and invasive that the Fourth Amendment requires agents to have some reasonable suspicion to justify the intrusion. Not only are laptops capable of storing vast amounts of information, the information tends to be of the most personal sort, including letters, finances, diaries, photos, and web surfing histories. Prior border search cases distinguished between “routine” suspicionless searches and invasive “non-routine” searches that require reasonable suspicion. Our amicus brief and the lower court opinion relied on these cases to say that the government must also have some cause to search laptops.  The Ninth Circuit panel rejected our argument that the privacy invasion resulting from searching computers is qualitatively different from, and requires higher suspicion than, searching luggage or other physical items.

The opinion is almost certainly wrong to classify laptop searches as no different from other property searches. Fourth Amendment law constrains police from conducting arbitrary searches, implements respect for social privacy norms, and seeks to maintain traditional privacy rights in the face of technological changes. This Arnold opinion fails to protect travelers in these traditional Fourth Amendment ways.

In his write up of the case, Orin Kerr says that he thinks the opinion is correct but that storage capacity is not irrelevant, its just relevant to other Fourth Amendment questions, like plain view and scope of the search.

Yet, United States v. Katz tells us that the Fourth Amendment protects people, not just places or things.  The Fourth is also sometimes a guarantor of First Amendment freedom of thought and associational rights.  Finally the Fourth protects prevailing social norms about what is and is not private.  So a bright line rule that any search of property, no matter how private, revealing or invasive, is reasonable at the border is contrary to the weight of Fourth Amendment law.  As for the particular question of searches at the border, Arnold says that only physically destructive searches are invasive and require reasonable suspicion, but that privacy destroying searches are OK without any cause.  This thinking makes the same pre-Katz mistake of giving Fourth Amendment protection based only on property rights not on privacy interests.

Law enforcement requests for postal info granted - USATODAY.com

U.S. postal authorities have approved more than 10,000 law enforcement requests to record names, addresses and other information from the outside of letters and packages of suspected criminals every year since 1998, according to U.S. Postal Inspection Service data.

All You Need is Hate - Stanley Fish

Hate Springs Eternal - Krugman

Of course, there’s nothing freakish or remarkable about how so many twins came to crowd the preschools of New York City. Older mothers are more prone to throwing off two eggs at once, but they’re also more likely to have trouble conceiving, and opting for in vitro fertilization. The number of twins nationwide has increased by 65 percent in the past two decades.

…

Like every age of plenitude, for better or for worse, this era of multiples will probably come to an end.

Read more:  For an Era of Twins, the End May Be Near - New York Times

GRANICK SLATE CARD
PRIMARY ELECTION, FEBRUARY 2008

[To subscribe to the Granick Slate Card, visit here. The Granick
Slate Card issues before every California election and may be copied and freely shared for any non-commercial purpose, with author attribution. Derivative works need not make any attribution.]

Friends, Romans, Republicans:

Welcome to the Granick Slate Card for the February 5, 2008 primary balloting. This is one of the most exciting elections in recent memory for Democrats. We have two great frontrunner candidates for President. Either would be a satisfying relief from eight years of Bush Administration lies and manipulation. Either would be history-making. We also have a smattering of arcane Propositions to weigh in on, so lets get started.

First, the additional resources:

SF Chronicle Endorsements

SF Bay Guardian Endorsements

Find your ballot and polling place

President of the United States, Democratic Party: Hillary Clinton

A voter looks for many ineffable qualities when searching for a President. Especially in this race, where the lead candidates basically agree on policy, people are voting on gut instinct. No one can reason with your gut, and mine leans towards Clinton. I will, however, try to explain why.

For me, effectiveness matters the most. I believe that our governmental system is broken, but that there’s room to get some good things done, and an imperative need to undo decisions made by the Bush Administration. I believe that wonky, arcane political decisions greatly impact our lives and the lives of people around the world. I believe that experience and information are greater factors in getting results than vision. I am not an idealist when it comes to federal government.

This is why I will vote for Clinton. About a year ago, this article in the New Yorker tilted me towards her.

The part that made the most impact on me is near the top of the third page:

In one conversation, I asked her whether she believed that the best antidote to Islamism might be Islamism itself—in other words, for Muslims to experience periods of Islamist rule to fully grasp its flaws. “Well, I don’t see any evidence of that,” she said. “You know, if you look around the world, Islamists have had to be defeated by internal military forces, in such places as Algeria and the Philippines, or by external military forces, in places like Afghanistan. We want to be able to continue to export democracy, but we want to deliver it in digestible packages. We want to be smart about this. Take the Palestinians, where we had an election. Don’t you think it would have been smart to make sure that the election was run in such a way that everyone knew how to compete? Hamas certainly knew how to compete. They ran a modern election. They knew enough to run only one person in each constituency, unlike Fatah, which we apparently didn’t tell. Hamas had a cell-phone system to get everyone to the polls. It’s not enough to say, ‘Let’s have an election.’ If you’re going to do it and install democracy, democracy means rule of law, it means democracy education, democracy means opening up the media.”

She went on, “That’s what we did during the Cold War. We had a multi-pronged agenda against Communism and the Soviet Union, we worked with candidates and parties in Europe, we worked to persuade people to be part of our alliance, we used every tool at our disposal.” Clinton seemed just moments away from naming individual Hamas precinct captains.

To my mind, the President will require this level of historical knowledge to deal with the problem of pulling out of Iraq safely, of restoring confidence (if not rationality) in our economy, of reversing eight years of Bush policies and practices. Clinton is the candidate with that perspective and experience.

Most of the people I know are supporters of Barack Obama. He’s an exciting candidate and one I would be proud to have as our President. Inspiration, both home and abroad, is sorely needed. [Process note: This is probably Clinton’s biggest problem. Her supporters have no problem with the opposition, they just think she will do a better job.] As a result, I have heard and sympathize with most of the arguments on his behalf. There are just two I want to address here; the question of which candidate is more likely to win the election (presumably against John McCain) and the question of her campaign tactics revealing an inclination to win at the cost of betraying one’s principles.

I believe McCain is the only Republican who could beat either Obama or Clinton, so pragmatism is a concern. Still, its sad that for once when we have two good candidates to choose from, we fall into the old habit of letting notions of “electability” overshadow “suitability”. Clinton challenges McCain on his home turf: experience and conduct of the war. Greater exposure is unlikely to win Clinton more allies. People seem to accept her or dislike her. I’m not sure McCain will fare any better under the microscope. Obama offers a different narrative, that would a starker choice between the Democrats and the Republicans. But to win he would need to prove to voters that he knows what to do in Iraq, how to deal with Iran, etc. Electability is quicksand. I don’t think we can really predict now what the zeitgeist will be at election time. For example, who would have thought that Bill Clinton would be Hillary Clinton’s greatest problem?

Which brings me to the second question. I’m not sure what the Clintons did to alienate so many of my friends, and most of them aren’t sure either. But the press has been going nuts with the ugly campaigning = unfit candidate meme. For example, in a column last week, NY Times columnist Bob Herbert offered two examples of Clinton surrogates “playing the race card” and the religion card too.

For example:

Here’s what Mr. Young, who is black and a former ambassador to the United Nations, had to say last month in an interview posted online: “Bill is every bit as black as Barack. He’s probably gone with more black women than Barack.”

That’s ribald and a bit stomach-churning, but surely can’t be what the Clinton camp hoped Young would say in support of Hillary’s candidacy. Let’s assume Clinton plays rough. She wants to win and she’s playing the election game the way its always been played. Its exactly because Hillary understands the game that I support her. People find it strident or unbecoming, but I think that has the whiff of sexism about it. Besides, recent events show Obama isn’t above taking the gloves off, nor should he be.

In sum, George Packer well summarizes my feelings about the two candidates.

Obama offers himself as a catalyst by which disenchanted Americans can overcome two decades of vicious partisanship, energize our democracy, and restore faith in government. Clinton presents politics as the art of the possible, with change coming incrementally through good governance, a skill that she has honed in her career as advocate, First Lady, and senator.

I want Obama, but I think we need Clinton.

Prop 91: Transportation Funds – No

This earmarks motor vehicle taxes for transportation improvements. As it turns out, we already passed this in 2006 as Prop 1A, but for some reason the proponents submitted the same measure to this ballot and were not able to withdraw it. Even the proponents recommend a no vote.

Prop 92: Earmark for Community College – No

I believe that one of the biggest obstacles to good governance in California is that so little of the budget is discretionary. About 90% of revenues are earmarked and pre-allocated, and this Proposition would be more of the same. Community College is really important, but so are other government services. This Proposition would lock us in to tuition rates and expenditures regardless of changed circumstances.

Prop 93: Term Limits – Yes

While this is marketed as a term limit proposition, it actually softens a rather draconian aspect of current law.

Today, legislators are limited to 14 years: six in the Assembly, eight in the Senate. Proposition 93 would reduce the lifetime limit to 12 years, but allow a legislator to serve it in a single house. This helps keep good people in government because what happens now is that when assembly members are termed out, they run for Senate, but often there are several assembly seats in a single Senate district, so former colleagues are forced to run against each other, and when they lose, leave government. Prop 93 fixes this problem.

A reason to oppose is that the prop includes a “transition period” to save the bacon of several sitting legislators, including Nunez and Perata, who would otherwise be termed out. This self-serving point would bother me more if I supported term limits in the first place, but I don’t. If you want to limit your legislators stay in government, you should simply vote for someone else.

Props 94- 97: Gambling Compacts – No

A yes vote approves agreements between the state and several tribes to allow increases in the number of slot machines at various casinos in exchange for an increase in tax revenue to the state. These deals are opposed by labor and environmentalists. The state has limited power to audit the slot machines and there’s a real question as to the amount of money we might take in. I think a reason to vote for these propositions is to reject the messed up proposition process as a whole. After all, we hire our elected representatives to figure these things out without us, but I suppose that given a chance to reject a bad deal, we might as well take it.

San Francisco Ballot Measures

Prop A: Bonds for Parks: Yes

Parks are important and I approve of bonds (borrowing) for infrastructure improvements.

Prop B: Police Retirement: Yes

This allows police officers at retirement age to stay for an extra three years and still contribute to their pension fund. If we can encourage seasoned police officers to stay on the job, why not?

Prop C: Global Peace Center: No

Should the city “explore” acquiring Alcatraz Island to tear down the prison and build a geodesic peace center? No, let’s not explore it. In fact, let’s never mention it again.

The Granick Slatecard will be out by midnight tonight.

Stop the spying, say Izzy and Callie

A picture is worth a thousand words. Take a photo and tell Congress how you feel about letting the telcos off the hook for breaking the law and spying on your phone calls and emails. See what others have said.