Tech Companies Continue To Tell Courts To Reject Trump Travel Exec Order

from the speaking-up dept

Earlier this week we noted that 162 tech companies (including us) had signed an amicus brief for the appeal in the 4th Circuit (in Virginia) arguing that President Trump's travel ban executive order was unlawful. The same group of companies (plus one more -- as it looks like Pandora was added to the latest) have filed basically the same amicus brief in the appeal in the 9th Circuit (which is the appeal of the decision in Hawaii that a smaller group had filed an amicus brief on as well). As with last time, people are going to come up with all sorts of conspiracy theories over this, but the fact is this is an issue that matters to many, many people who work at these companies, and the companies have committed to speaking out about it.

Filed Under: donald trump, executive order, immigration, tech companies, travel ban

Nation's Police Chiefs Disagree With Trump's New Tough On Crime Executive Orders

from the unless-worse-policing-is-what's-desired... dept

President Trump's three new law-and-order Executive Orders are designed to combat a largely-nonexistent crime wave and increase protections for one of the most-heavily protected groups in America: law enforcement officers. The orders also mixed crime prevention and national security into a single bowl, making criminal activity inseparable from threats to the nation -- especially if foreigners are involved. In addition to his travel ban and his Two Minutes Hate reporting system, Trump also singled out illegal immigrants in these "law and order" orders, implying that they were to blame for much of the perceived crime problem.

That's in addition to some off-the-cuff remarks Trump made during a meeting with several sheriffs, where he suggested there was no need to reform asset forfeiture and joked that those pushing reform efforts should have their careers ruined by the nation's top (proxy) cop: Donald Trump.

The president may unequivocally have law enforcement's back for the next four years (at minimum), but the nation's top cops don't have his. Or, at the very least, they don't agree with Trump's hardline, anti-crime, pro-cop-always stance. In a report [PDF] filled with suggestions for the new president, a coalition of police chiefs, district attorneys (including Manhattan decrypto warrior Cyrus Vance), and other police officials agree that the ideas Trump is pushing so far are only going to make the nation's policing -- and the nation's relationship with police -- worse.

While Trump has been calling for longer sentences, increased law enforcement presence, and projected a zero tolerance approach to everything until crime rates lower (or at least his perception of crime rates -- the stats don't back up his claims), this group says throwing the book at everyone is just going to perpetuate criminal activity.

We urge the Administration and Congress to carefully consider new crime policies, and adopt and support those that fight crime effectively. Decades of experience have convinced us of a sobering reality: today’s crime policies, which too often rely only on jail and prison, are simply ineffective in preserving public safety. We need not use arrest, conviction, and prison as the default response for every broken law. For many nonviolent and first-time offenders, prison is not only unnecessary from a public safety standpoint, it also endangers our communities.

Once inmates are released, they struggle to find employment, housing, and other necessities that would re-integrate them into society. Facing few legitimate opportunities, many ex-offenders return to crime. The higher the incarceration rate for such offenders, the less safe the citizenry. We must instead consider those policies that better preserve public safety. Dangerous, violent offenders should be behind bars, but incarceration is not necessarily the best tool to put non-violent offenders back on the road to productive, law-abiding lives.

The report also points out that throwing money at the problem hasn't helped either. Money is useful, but only if it's spent on useful activities.

Each year, the federal government spends billions in criminal justice grants to support overwhelmed police department and government budgets. For example, the Department of Justice offered $5.5 billion in grants to local agencies in 2016. These dollars fund law enforcement efforts to investigate and prosecute crimes. However, to a large degree, these outlays are not targeted at fighting violent and serious crime. In fact, some of these dollars are expended on antiquated law enforcement tools, such as dragnet enforcement of lower-level offenses. This misses an opportunity to prioritize resources towards more effective ways of fighting violent and serious crime in the states. Without such change, states will continue inefficient enforcement techniques.

Also discussed are sentencing reform, increased efforts to better deal with drug addicts and the mentally ill (something that doesn't involve regular deployments of force/jail time) and a heavier focus on community policing. What it doesn't contain are suggestions to roll back all of this to the mid-80s and pretend we have something like a crack epidemic to attend to. The conclusory paragraph says -- contrary to Trump's viewpoint -- that efforts in these areas will result in better law enforcement and safer communities.

But while many police officials and prosecutors disagree with Trump, police unions disagree with police officials (and prosecutors) -- albeit without going through the trouble of producing a report that explains their side of things.

“I can promise that if we have a president who is speaking about protecting the lives of police officers, that the membership is going to be supportive of him,” said Chuck Canterbury, the president of the Fraternal Order of Police. “No police officer took an oath that said, ‘I agree to support and defend the Constitution and to get my butt whipped.’” Michael A. Ramos, the president of the National District Attorneys Association and the chief prosecutor in San Bernardino County, Calif., hailed the shift in emphasis, saying the pendulum had swung “way too far” toward being “soft on crime.”

These comments are illuminating. In both cases, constitutionally-adherent policing is viewed as "soft." That's how far the pendulum has actually swung, despite Ramos' assertion to the contrary. Many police officers act as though the Constitution only applies to people they never interact with. For everyone else, their rights are whatever rights the officer feels they have at the time. As long as these rights don't prevent them from doing what they want, citizens are free to enjoy them. If not, take the complaint to court where various levels of immunity will routinely allow Constitutional violations to go unpunished.

A long list of DOJ investigations confirm law enforcement's generally negative attitude towards the people they police. First, an "us vs. them" attitude dehumanizes anyone not wearing a badge. Effective policing is unconstitutional policing, and cops aren't going to let a bunch of rights get in the way of cracking heads and asserting their authority. Undoubtedly, officials like Canterbury and Ramos view sentencing reform, community policing, curbing non-essential arrests, handling mental illness with more care, etc. as "soft" as well. And the new president appears to be onboard with this backwards thinking -- where adhering to the Constitution is a luxury a supposedly-besieged law enforcement community can no longer afford.

Filed Under: donald trump, executive order, law and order, law enforcement, police chiefs

FBI Arresting More Americans For Targeting Muslims, Than Muslims For Targeting Americans

from the lock-'em-up dept

We've been pretty damn clear that we think the Trump administration's targeting of people from a few countries by banning them from entering the US is both inhumane and misguided. We were proud to sign on to an amicus brief opposing it and happy that the 9th Circuit agreed -- though the case is far from over. As I've noted repeatedly, to me it's an issue of basic humanity and decency, but some have insisted on making arguments about how certain people are somehow out to get us and we need to protect ourselves from them. I know that, these days, it's considered silly to rely on things like facts for an argument, but it seemed worthwhile to actually explore some facts on this particular topic.

We'll start with a post at Lawfare, by Nora Ellingsen. And we should start out by noting that Techdirt and Lawfare have a pretty long history of... well... not agreeing on much. The site is generally supportive of the intelligence community and supportive of actions taken to protect "national security." We tend to be more skeptical. Ellingsen worked in the FBI's Counterterrorism Division for five years, specifically working on international terrorism investigations inside the US. Since leaving the FBI to go to law school, she's been tracking counterterrorism cases in the US, using DOJ data. And she's gone through that data to try to determine if there's any truth to the idea that people from those countries represent a big ongoing threat. And the answer is that it's just not true. In fact, the real "terrorism" threat in America appears to be... from Americans.:

The Program on Extremism at George Washington University has routinely published statistics indicating that the “vast majority” of individuals charged in the U.S. with offenses related to ISIL are U.S. citizens. When considering all terrorism offenses, that claim holds up—80 of the 97 suspects arrested in the past two years, or more than 82 percent, are American citizens.

Most of those, notably, are not naturalized citizens. Of the U.S. citizens, only six were naturalized. In other words, more than 76 percent of individuals arrested by the FBI over the past two years for terrorism-related offenses were U.S. citizens as a result of having been born in the United States.

The post goes through all of the individuals who were not born in the US and looks at what each was charged with (often just making false statements to the FBI) and how many of them (not many) actually came from the list of banned countries.

And, then, of course, the fact that the FBI these days tends to be arresting a lot more people for plotting violent attacks on Muslims, than Muslims plotting violent attacks on the US:

Since January 2015, the FBI has also arrested more anti-immigrant American citizens plotting violent attacks on Muslims within the U.S. than it has refugees, or former refugees, from any banned country. As we wrote about here, here and here, in October 2016, three white men from Kansas were charged with conspiring to use a weapon of mass destruction. According to the graphic complaint, the anti-Muslim and anti-immigrant men planned to attack a mosque in the area. The men progressed quickly with their plot, amassing firearms and explosives. The targets were people from Somalia, who ironically, would now be covered by Trump’s order.

Similarly, the post notes that there were more US citizens arrested en route to join ISIS in Syria than those arrested trying to plan attacks here.

Since we’re already on the topic, let’s talk about Americans traveling to join ISIL. Over the past two years, the FBI has arrested 34 Americans who aspired to leave, attempted to leave or actually left the United States to join a terrorist group overseas. In other words, although two refugees came into the U.S. and were charged with material support,

Seventeen times that number of U.S. citizens tried to leave the U.S. to conduct attacks and fight overseas. More Americans have snuck into Syria to join ISIL, than ISIL members have snuck into the United States. In September 2015, a congressional report indicated that 250 Americans have gone to Syria and Iraq to fight with ISIL. By comparison, as of December 2015, only 71 individuals in the United States had been charged with ISIL-related activities—the vast majority of whom were also U.S. citizens, according to George Washington University.

Meanwhile, over at Slate, William Saletan has pointed out that if the President really wants to ban travellers from regions that import multiple people aiming to harm Americans... it ought to ban travel from North & South Carolina. He goes through story after story of extremists who left North Carolina to conduct terrorist attacks elsewhere. The list is long, but here are just a few:

It began with Eric Rudolph, a Holocaust denier who grew up in the Christian Identity movement. In 1996, Rudolph traveled from North Carolina to Atlanta, where he detonated a bomb at the Olympics, killing one person and injuring more than 100 others. A year later, Rudolph bombed a lesbian bar in Atlanta, wounding five people. In 1998, he bombed a reproductive health clinic in Birmingham, Alabama, killing a security guard and injuring a nurse. The “Army of God,” which hosts Rudolph’s writings, claimed credit for his attacks.

In 2001, Steve Anderson, another Christian Identity follower, was pulled over for a broken tail light on his way home from a white supremacist meeting in North Carolina. He pumped 20 bullets into the officer’s car and fled. Police found weapons, ammunition, and explosives in his truck and home. A year later, he was captured in the western part of the state.

In 2010, Justin Moose, an extremist from Concord, North Carolina, was arrested for plotting to blow up a Planned Parenthood clinic. Moose, who claimed to represent the Army of God, also opposed the construction of a mosque near ground zero in New York. He called himself the “Christian counterpart of Osama Bin Laden.” Eventually, Moose pleaded guilty to disseminating information on how to make and use explosive devices.

Obviously, the Slate piece is tongue-in-cheek in arguing that the Carolinas are the real threat, but the larger point is completely valid. There seems to be no credible evidence for why people from the countries listed in the original executive order should be banned from the US other than outright bigotry. And, somewhat unfortunately, that same kind of ignorant bigotry (which the executive order is only helping to encourage and spread) is resulting in actual violent attacks from Americans who misguidedly think they're stopping "evil."

Filed Under: executive order, fbi, immigration ban, muslims, terorrism

Trump Issues Executive Orders To Make A Safe Nation Safe And Protect Cops Who Don't Need Protection

from the things-are-going-to-get-worse-before-they-don't-improve-at-all dept

More Executive Orders have been issued by Donald Trump. The latest skew heavily in favor of Trump's recent conversational partners: members of law enforcement.

Earlier this week in a meeting with several sheriffs, Trump voiced his support for asset forfeiture and made an off-hand comment about ruining the careers of legislators engaged in reform efforts. Great fun was had by all… mostly Trump and perhaps a sheriff or two.

One order does nothing more than what large bureaucracies do best: institute task forces. Trump's task force is charged with "crime reduction and public safety." The DOJ will head this up and ask for cooperation from local law enforcement agencies. The public safety priorities are definitely Trump's, though.

A focus on law and order and the safety and security of the American people requires a commitment to enforcing the law and developing policies that comprehensively address illegal immigration, drug trafficking, and violent crime.

Illegal immigration is apparently the most dangerous of the three listed, presumably because it's the only one that justifies the erection of a Mexico-funded wall and the existence of a previous, possibly-unconstitutional executive order banning visitors from certain Muslim countries.

The scary part is a few paragraphs deep:

identify deficiencies in existing laws that have made them less effective in reducing crime and propose new legislation that could be enacted to improve public safety and reduce crime

If there's anything this country has too much of, it's laws. The president wants more laws, or existing ones patched up, to better reduce criminal activity. Given the state of mind of many in law enforcement, any perceived "deficiencies" in existing laws are likely concessions made to Constitutionality. You know, the sort of things cops and prosecutors call "technicalities" -- like the Fourth through Sixth Amendments.

Arriving alongside the Task Force order is one directing law enforcement agencies to get a better grip on "transnational criminal organizations." In short, Trump wants to reboot the Drug War and do all the things that have failed for the past 40 years harder, faster, and with more of a focus on foreigners.

To kickstart this new War, Trump has declared public safety and national security to be the same thing.

It shall be the policy of the executive branch to:

(a) strengthen enforcement of Federal law in order to thwart transnational criminal organizations and subsidiary organizations, including criminal gangs, cartels, racketeering organizations, and other groups engaged in illicit activities that present a threat to public safety and national security and that are related to, for example:

(i) the illegal smuggling and trafficking of humans, drugs or other substances, wildlife, and weapons;

(ii) corruption, cybercrime, fraud, financial crimes, and intellectual-property theft; or

(iii) the illegal concealment or transfer of proceeds derived from such illicit activities.

Just like that, RICO violations, drug dealing, IP "theft," and depositing money in a bank in a certain way are all now considered threats to national security. The lessons not learned in the aftermath of 9/11 attacks continue to pay dividends for those seeking increased government power.

And once again, Trump makes sure non-US citizens are singled out for their inherent criminal nature/national security threatening.

...pursue and support additional efforts to prevent the operational success of transnational criminal organizations and subsidiary organizations within and beyond the United States, to include prosecution of ancillary criminal offenses, such as immigration fraud and visa fraud, and the seizure of the implements of such organizations and forfeiture of the proceeds of their criminal activity.

US persons' data and communications already being shared by the NSA with at least 16 federal agencies will also be shared with foreign law enforcement.

work to increase intelligence and law enforcement information sharing with foreign partners battling transnational criminal organizations and subsidiary organizations, and to enhance international operational capabilities and cooperation

And Trump's promise to ease restrictions on asset forfeiture appears to get a nod here:

identify Federal agencies' practices, any absence of practices, and funding needs that might hinder Federal efforts to effectively combat transnational criminal organizations and subsidiary organizations

Because forfeiture has always been defended with claims that it's used to dismantle criminal cartels, even when it's just being used to take cars away from drunk drivers and tuition money from college students.

The last order appears to call for a federal "Blue Lives Matters" law:

pursue appropriate legislation, consistent with the Constitution's regime of limited and enumerated Federal powers, that will define new Federal crimes, and increase penalties for existing Federal crimes, in order to prevent violence against Federal, State, tribal, and local law enforcement officers.

More specifically, the order says that the federal government will explore new definitions of criminal activity if it appears to be directed at law enforcement officers and implement harsher sentences for these crimes.

...make recommendations to the President for legislation to address the protection and safety of Federal, State, tribal, and local law enforcement officers, including, if warranted, legislation defining new crimes of violence and establishing new mandatory minimum sentences for existing crimes of violence against Federal, State, tribal, and local law enforcement officers, as well as for related crimes

The "for related crimes" shows this won't just be used to punish direct attacks on law enforcement officers. It could be expanded to turn any number of "contempt of cop" charges (obstruction, resisting arrest, failure to identify, etc.) into criminal acts punished by extra-long jail sentences and hefty fines.

Also in this order: a nod to the 1033 program, which -- until (briefly) curtailed by the Obama administration -- distributed used (and new) military gear to local PDs for little to no cost.

(f) thoroughly evaluate all grant funding programs currently administered by the Department to determine the extent to which its grant funding supports and protects Federal, State, tribal, and local law enforcement officers; and

(g) recommend to the President any changes to grant funding, based on the evaluation required by subsection (f) of this section, including recommendations for legislation, as appropriate, to adequately support and protect Federal, State, tribal, and local law enforcement officers.

If this goes ahead as planned, small town cops will once again be riding high in armored vehicles, toting grenade launchers, and picking up Stingray devices without having to break the budget.

It was clear during his campaign that Trump was going to offer unconditional backing to the law enforcement community. And here it is, in three executive orders. They're all predicated on something Trump keeps repeating but that simply isn't true: law enforcement officers are not in more danger than they've been in years. The opposite is true. While there was an increase in officer deaths last year, it followed several years of steep declines. [Image via Reason]

And our cities aren't the crime-filled nightmares Trump insists they are. The national crime rate is still at historic lows. There are a few outliers on the scale, but that's the case every year, no matter where the national average sits.

On the other hand, there has been zero appreciable decline in the number of citizens killed by police officers. While crime rates remain low, this brand of killing hasn't. Through February 9th, 137 people have been killed by law enforcement, which puts this at 1,250 for the year if this pace continues. Last year, officers killed somewhere between 1,092 and 1,153 people (depending on whose count you go with). So, while crime rates remain low and officer safety remains high, people are being killed by officers at a faster pace than last year.

But these orders have no place for facts. And they indicate a willingness to for this president to institute policies reflecting his own misconceptions, rather than the nation's reality.

Filed Under: blue lives matter, crime reduction, donald trump, executive order, law and order, police

Court Unanimously Keeps Lower Court's Injunction Against Trump's Immigration Order In Place

from the for-now dept

Let's start this out by being quite clear: this is still the beginning of a fairly long legal process. But, the 9th Circuit appeals court has just unanimously ruled that the lower' court's injunction barring Donald Trump's executive order on immigration should remain in place. In short: the federal government remains barred from actually carrying out the order. This does not mean, as our President has wrongly suggested, that people are free to randomly enter the country in droves. They still have to go through the already thorough vetting and visa process. It just means that the blanket ban that caused so much havoc cannot be used to bar entry into the country. We were among those who signed onto an amicus brief for the wider tech industry, asking the court to rule this way, so we're happy they did.

The court is pretty clear, and it's somewhat surprising that the ruling was unanimous. While it's always difficult to tell how judges are going to rule based solely on oral arguments, it certainly felt like two judges were leaning towards the states' argument and one towards the federal government's. But when it was time to write an opinion, all three came down on the side of the states. Not only that, but they did it per curiam, meaning that the entire panel "wrote" the opinion (rather than singling out the specific judge who wrote it). This can be seen as the three judges showing a united front, and also a pre-emption towards the likelihood of our thin skinned President picking directly on one of the three as somehow being responsible (as he did in earlier tweets about the case). Either way, the judges stood together, noting that the federal government's argument was weak:

To rule on the Government’s motion, we must consider several factors, including whether the Government has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay. We assess those factors in light of the limited evidence put forward by both parties at this very preliminary stage and are mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides. Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.

Again, this is far from over. There will still be a fight at the lower court over a permanent injunction, and then numerous appeals (not to mention the other cases around the country).

As for the opinion, it's good to see that the court went as far as it did. It really could have just punted the issue on a number of grounds, including that the appeals court has no grounds to overturn a temporary restraining order. But, instead, it went further and suggested that the federal government's position here is weak. There were a few different issues in the case, and the court wasn't very impressed by any of the federal government's arguments. One was that the states (Washington and Minnesota) didn't have standing to challenge the executive order. Not so, says the court, pointing to a number of cases where state universities had standing to sue on actions related to the rights of their students:

Most relevant for our purposes, schools have been permitted to assert the rights of their students.... As in those cases, the interests of the States’ universities here are aligned with their students. The students’ educational success is “inextricably bound up” in the universities’ capacity to teach them.... And the universities’ reputations depend on the success of their professors’ research. Thus, as the operators of state universities, the States may assert not only their own rights to the extent affected by the Executive Order but may also assert the rights of their students and faculty members.

We therefore conclude that the States have alleged harms to their proprietary interests traceable to the Executive Order. The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave. And we have no difficulty concluding that the States’ injuries would be redressed if they could obtain the relief they ask for: a declaration that the Executive Order violates the Constitution and an injunction barring its enforcement. The Government does not argue otherwise.

On that procedural question of whether or not the court can even review a temporary restraining order (TRO), the court says it's fine:

We are satisfied that in the extraordinary circumstances of this case, the district court’s order possesses the qualities of an appealable preliminary injunction. The parties vigorously contested the legal basis for the TRO in written briefs and oral arguments before the district court. The district court’s order has no expiration date, and no hearing has been scheduled. Although the district court has recently scheduled briefing on the States’ motion for a preliminary injunction, it is apparent from the district court’s scheduling order that the TRO will remain in effect for longer than fourteen days. In light of the unusual circumstances of this case, in which the Government has argued that emergency relief is necessary to support its efforts to prevent terrorism, we believe that this period is long enough that the TRO should be considered to have the qualities of a reviewable preliminary injunction.

On the question of whether or not courts even have the authority to review this executive order, the court says of course it does and it's patently silly for the federal government to suggest otherwise.

The Government contends that the district court lacked authority to enjoin enforcement of the Executive Order because the President has “unreviewable authority to suspend the admission of any class of aliens.” The Government does not merely argue that courts owe substantial deference to the immigration and national security policy determinations of the political branches—an uncontroversial principle that is well-grounded in our jurisprudence. See, e.g., Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016) (recognizing that “the power to expel or exclude aliens [is] a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control” (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977))); see also Holder v. Humanitarian Law Project, 561 U.S. 1, 33-34 (2010) (explaining that courts should defer to the political branches with respect to national security and foreign relations). Instead, the Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. The Government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one.

There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.

The court further notes that the federal government's desire to run around screaming "NATIONAL SECURITY" as if that means the courts are powerless to do anything is also completely bogus.

Indeed, federal courts routinely review the constitutionality of—and even invalidate—actions taken by the executive to promote national security, and have done so even in times of conflict.

On to the key question of whether or not the court should lift the TRO and allow the executive order to be in effect again. The court here basically rips up the federal government and notes that it has no real argument.

The Fifth Amendment of the Constitution prohibits the Government from depriving individuals of their “life, liberty, or property, without due process of law.” U.S. Const. amend. V. The Government may not deprive a person of one of these protected interests without providing “notice and an opportunity to respond,” or, in other words, the opportunity to present reasons not to proceed with the deprivation and have them considered....

The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel. Indeed, the Government does not contend that the Executive Order provides for such process. Rather, in addition to the arguments addressed in other parts of this opinion, the Government argues that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause.

And while I've seen a bunch of people (mainly on Twitter) telling me that there's no due process issue because non-US citizens have no Constitutional rights, the court reminds them that they're wrong:

The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). These rights also apply to certain aliens attempting to reenter the United States after travelling abroad. Landon v. Plasencia, 459 U.S. 21, 33-34 (1982). The Government has provided no affirmative argument showing that the States’ procedural due process claims fail as to these categories of aliens. For example, the Government has failed to establish that lawful permanent residents have no due process rights when seeking to re-enter the United States. See id. (“[T]he returning resident alien is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude him.” (quoting Rosenberg v. Fleuti, 374 U.S. 449, 460 (1963))). Nor has the Government established that the Executive Order provides lawful permanent residents with constitutionally sufficient process to challenge their denial of re-entry. See id. at 35 (“[T]he courts must evaluate the particular circumstances and determine what procedures would satisfy the minimum requirements of due process on the re-entry of a permanent resident alien.”).

Separately, the court notes that the federal government's own claims are not trustworthy -- specifically the rapidly-changing claims about whether or not greencard holders are covered by the exec order:

At this point, however, we cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents. The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely.

Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. TheWhite House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.

The court also rejects the argument from the DOJ that a more limited TRO could be used instead, such as one just focusing on previously admitted aliens. No go:

First, we decline to limit the scope of the TRO to lawful permanent residents and the additional category more recently suggested by the Government, in its reply memorandum, “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.” That limitation on its face omits aliens who are in the United States unlawfully, and those individuals have due process rights as well. Zadvydas, 533 U.S. at 693. That would also omit claims by citizens who have an interest in specific non-citizens’ ability to travel to the United States.... There might be persons covered by the TRO who do not have viable due process claims, but the Government’s proposed revision leaves out at least some who do.

The court also refuses to restrict the TRO so that it doesn't apply nationwide, basically saying the government failed to explain why it should:

Second, we decline to limit the geographic scope of the TRO. The Fifth Circuit has held that such a fragmented immigration policy would run afoul of the constitutional and statutory requirement for uniform immigration law and policy.... At this stage of the litigation, we do not need to and do not reach such a legal conclusion for ourselves, but we cannot say that the Government has established that a contrary view is likely to prevail. Moreover, even if limiting the geographic scope of the injunction would be desirable, the Government has not proposed a workable alternative formof the TRO that accounts for the nation’s multiple ports of entry and interconnected transit system and that would protect the proprietary interests of the States at issue here while nevertheless applying only within the States’ borders.

The court then notes that the federal government failed to convince the court that it has any "likelihood of success" in prevailing in support of the executive order, though it's open to changing its mind at a later date, when more fully briefed (i.e., when things come back on appeal down the road).

Finally, there's the question of the "balance of hardships and the public interest" and again the court notes that the DOJ failed to show any evidence of real harm in blocking the executive order, because the DOJ has no actual evidence to support the reasons for the order in the first place. And, again, just screaming "NATIONAL SECURITY" is no excuse:

The Government has not shown that a stay is necessary to avoid irreparable injury. Nken, 556 U.S. at 434. Although we agree that “the Government’s interest in combating terrorism is an urgent objective of the highest order,” Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010), the Government has done little more than reiterate that fact. Despite the district court’s and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years.

The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree, as explained above.

In a footnote on that, the court calls bullshit on the idea that there's some super secret info that only the President can see that shows why this ban is necessary, noting that the federal government regularly shares confidential information with judges under seal or in camera to avoid it being seen by others.

Meanwhile, the court notes that the plaintiff states have shown pretty strong evidence of harm:

By contrast, the States have offered ample evidence that if the Executive Order were reinstated even temporarily, it would substantially injure the States and multiple “other parties interested in the proceeding.” ... When the Executive Order was in effect, the States contend that the travel prohibitions harmed the States’ university employees and students, separated families, and stranded the States’ residents abroad. These are substantial injuries and even irreparable harms.

And, finally the court notes that the public interest simply does not warrant a stay.

Again, this is just the beginning of a long process, but as an early victory it's a big one. The court could have punted and did not. And in the meantime, our somewhat confused President is angry and doesn't seem to realize he's already in court over this (and losing, badly):

Of course, if that were true, it would help to have the federal government actually lay out some evidence to support that. What the 9th circuit pretty clearly said here is "we've seen none whatsoever."

Filed Under: 9th circuit, doj, donald trump, executive order, national security

Basically The Entire Tech Industry Signs Onto A Legal Brief Opposing Trump's Exec Order

from the we-need-to-stand-up dept

I've been quite clear how I feel about Donald Trump's awful executive order that places a blanket ban on people entering the US (even if they had valid visas) from 7 countries, including a permanent block on Syrian refugees. Tons of people have been protesting this decision, and multiple courts have ruled against it. There has been some discussion over whether or not the tech industry was really going to stand up against this move, and some of the early statements about the executive order were a bit weak. However, late Sunday night, basically the entire technology industry (plus some companies from other industries as well) signed onto an amicus brief calling the order illegal and unconstitutional (technically, it's a motion asking for permission to file the amicus brief, with that brief attached).

The brief was filed in the Ninth Circuit appeals court, which is one of the first appeals courts considering the executive order, after a federal judge in Seattle issued a nationwide temporary restraining order on enforcing the exec order. On Sunday, the appeals court refused to reverse the lower court, keeping the TRO in place. However, it also gave both parties (the lawsuit itself was filed by the state of Washington) a very quick turnaround time to file written arguments to be considered.

Given that incredibly short time frame, the fact that 97 companies -- including some of the world's largest -- but also some tiny ones, like the Copia Institute (the think tank arm of Techdirt), were able to come together and not only get a detailed amicus brief together, but also get sign on from all of those companies (on Super Bowl Sunday, no less), is impressive. Having been through the process in which amicus briefs with multiple signers has been done before, normally there's lots of hemming and hawing from different companies and nitpicking over certain choices. It takes a lot of effort. Update: Another 30 companies have signed on as well.

But this issue was so important and so core and fundamental to our basic values, that basically the entire industry came together and signed onto this. You name the company, and it's probably signed on. There are the big guys: Google, Facebook, Microsoft and Apple (despite a false Washington Post article that claimed none of them had signed on). There are lots of other huge names as well, including Twitter, Snap, Uber, Airbnb, Lyft, Dropbox, Cloudflare, Box, eBay, GitHub, Kickstarter, Indiegogo, Medium, Mozilla, Patreon, Paypal, Pinterest, Reddit, Salesforce, Spotfy, Stripe, Wikimedia, Yelp, Y Combinator and many, many more. Update: Among the notable companies in the "late" sign on, were SpaceX, Tesla, Slack, Pandora, Adobe, HP, Evernote, Udacity and more...

I highly recommend reading the full amicus brief -- which makes an economic argument, a moral argument and a legal argument all wrapped up in one.

Immigrants make many of the Nation’s greatest discoveries, and create some of the country’s most innovative and iconic companies. Immigrants are among our leading entrepreneurs, politicians, artists, and philanthropists. The experience and energy of people who come to our country to seek a better life for themselves and their children—to pursue the “American Dream”—are woven throughout the social, political, and economic fabric of the Nation.

For decades, stable U.S. immigration policy has embodied the principles that we are a people descended from immigrants, that we welcome new immigrants, and that we provide a home for refugees seeking protection. At the same time, America has long recognized the importance of protecting ourselves against those who would do us harm. But it has done so while maintaining our fundamental commitment to welcoming immigrants—through increased background checks and other controls on people seeking to enter our country.

[....]

The Order effects a sudden shift in the rules governing entry into the United States, and is inflicting substantial harm on U.S. companies. It hinders the ability of American companies to attract great talent; increases costs imposed on business; makes it more difficult for American firms to compete in the international marketplace; and gives global enterprises a new, significant incentive to build operations— and hire new employees—outside the United States.

The Order violates the immigration laws and the Constitution. In 1965, Congress prohibited discrimination on the basis of national origin precisely so that the Nation could not shut its doors to immigrants based on where they come from. Moreover, any discretion under the immigration laws must be exercised reasonably, and subject to meaningful constraints.

There's much more in the full brief, and hopefully the court allows it and recognizes how momentous this is. I've never seen anything that so many tech companies have gotten behind (including things like SOPA), and this happened so fast that it is literally unprecedented. A whole bunch of people put in a tremendous effort to actually get this done (including more than a few having to miss the Super Bowl to get this done...). Andy Pincus from Mayer Brown deserves a specific shoutout for being the main lawyer putting the brief together.

We shall see what happens from here, but having basically the entire tech industry rise up in a single voice to say that this order is not right is nice to see. In this day and age, it's easy not to speak out and to just sit on the sidelines. But this is important, and when it mattered all of these companies spoke out.

Filed Under: amicus brief, donald trump, executive order, muslim ban, tech industry, travel, visas
Companies: apple, copia institute, facebook, google, microsoft, netflix, snap, twitter

Trump Orders The Cyber To Be Fixed In The Next Sixty Days

from the all-power-to-C:-drive dept

No one likes it when a new boss takes over the office and starts acting like the entire operation can be turned around in a matter of days, if not hours. A "can do" spirit is overrated, especially when it's possessed by someone who knows almost nothing about the day-to-day business or, indeed, anything about this sort of business in general.

But that's what we have going on here. Within days of taking over the job, the new President has unleashed multiple orders and directives to FIX EVERYTHING… with details to follow sometime between "shortly" and "never." The plan to "make America great again" involves:

1. Telling Americans you're going to "fix" all of these things.
2. Telling government agencies and officials that they're going to fix all these things
3. Right now
4. ????

Ars Technica reports:

Today, the Washington Post published what appears to be a draft of an executive order to be signed by President Donald Trump. The order, entitled “Strengthening US Cyber Security and Capabilities,” puts flesh on the bones of the “cyber review” promised by Trump during the campaign. It spells out who will conduct the review and what its specific goals are. The order also sets a brisk pace for the review, calling for initial recommendations for the security of “national security systems” and critical infrastructure within 60 days. The review also has a 60-day deadline to provide the president with a list of “principal cyber adversaries.”

While fire in the belly proclamations aren't unique to the new president, the expectation that multiple officials and agencies will be able to come up with what's required in the next 60 days borders on ridiculous. There's also a 100-day window for recommendations on how to draft the private sector into the government's cyberwar. At this point, multiple agencies are still fighting over who gets to be the top cyberwarrior, as well as whose particular data silo gets to be the biggest. Expecting something coherent in the next couple of months is delusional.

This administration-ordered time crunch -- as unrealistic as it is -- isn't limited to President Trump. As Ars Technica's Sean Gallagher points out, President Obama did the same thing. His 2015 cybersecurity "sprint" order was just as misguided. In the end, all Obama got out of it was some agency head resignations. Government systems are still, for the most part, as insecure as they've been since before the "sprint," when the Government Accountability Office reported that 23 out of 24 agencies surveyed failed to meet information security standards.

But this sort of speedy order is swiftly (no pun intended) becoming a Trump trademark. America's problems can apparently be solved with presidential "to do" lists fired off to a variety of agencies. He appears to believe that if he orders it, it will be done. How do you win the War on Terror, currently in year 16 of ∞? Easy. Come up with a plan to win and then win.

(ii)   Within 30 days, a preliminary draft of the Plan to defeat ISIS shall be submitted to the President by the Secretary of Defense.

(iii) The Plan shall include:

(A) a comprehensive strategy and plans for the defeat of ISIS;

It's breathtaking in its simplicity. It's a shame no previous presidents had the forethought to demand a plan to defeat ISIS. And it's doubly-shameful no one involved in the War on Terror could be bothered to formulate a plan for beating terrorists until the president demanded one. Trillions of taxpayer dollars could have been saved if only George W. Bush had demanded a "comprehensive strategy for the defeat of [current top terrorist organization]" to be delivered to him by the end of 2001, AT THE LATEST.

And here's what's going into these orders and directives. Not much. Not even a legal review by White House lawyers.

NBC is reporting that the document [immigration/visa order] was not reviewed by DHS, the Justice Department, the State Department, or the Department of Defense, and that National Security Council lawyers were prevented from evaluating it. Moreover, the New York Times writes that Customs and Border Protection and U.S. Citizen and Immigration Services, the agencies tasked with carrying out the policy, were only given a briefing call while Trump was actually signing the order itself. Yesterday, the Department of Justice gave a “no comment” when asked whether the Office of Legal Counsel had reviewed Trump’s executive orders—including the order at hand. (OLC normally reviews every executive order.)

This process is a reflection of Trump's personality, and it's not a good look for someone in the most powerful office in the world. The federal government often has trouble accomplishing the mundane. Now, its new boss wants it to deliver miracles and is only willing to wait a couple of months for them to be delivered. At some point, realism has to set in, but we're still at the point where the new president believes mountains can not only be moved, but have always been able to be moved at the slightest notice. All that's been missing is someone willing to order the mountain's relocation.

Filed Under: cybersecurity, donald trump, executive order

New Trump Executive Order Says Federal Agencies Should Exclude Foreigners From Privacy Protections

from the immigrants-founded-this-country,-but-what-have-they-done-for-us-lately? dept

It's America first, everyone else second. That's the new administration's message. An executive order full of disturbing mandates contains a proposed rollback of privacy protections extended to foreign residents' personal information, as ProPublica's Julie Angwin pointed out on Twitter.

Here's the section detailing the clawback of privacy rights from President Trump's "Enhancing Public Safety in the Interior of the United States" executive order.

Sec. 14. Privacy Act. Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.

This doesn't appear to touch the Obama's Presidential Policy Directive issued in response to the Snowden leaks, which ordered US agencies to show a bit more respect to the personal information on foreigners harvested by multiple surveillance programs. The relevant part of PPD-28 reads:

All persons should be treated with dignity and respect, regardless of their nationality or wherever they might reside, and all persons have legitimate privacy interests in the handling of their personal information. U.S. signals intelligence activities must, therefore, include appropriate safeguards for the personal information of all individuals, regardless of the nationality of the individual to whom the information pertains or where that individual resides.

What it never instructed agencies to do is stop collecting it, or to even scale their collection programs back. The solution isn't less spying -- despite the Snowden revelations -- but more policies. This is still intact despite Trump's executive order. He has the option of revoking previous Presidential Policy Directives, so it's not as though this extension of rights is untouchable.

The order basically states that government agencies no longer need to extend privacy protections to foreign residents' data that they may possess. The problem with this rollback is that it rolls back very little. Foreign data isn't covered by the Privacy Act. The president may have been targeting Obama's presidential directive with this executive order, but he has missed badly.

What it does do, however, is screw with the Passenger Name Record agreement the US signed with the European Commission back in 2007.

IV. Access and Redress: DHS has made a policy decision to extend administrative Privacy Act protections to PNR data stored in the ATS regardless of the nationality or country of residence of the data subject, including data that relates to European citizens. Consistent with U.S. law, DHS also maintains a system accessible by individuals, regardless of their nationality or country of residence, for providing redress to persons seeking information about or correction of PNR.

Then again, this was screwed with before the ink was even dry. The Bush Administration changed the terms of the deal less than two weeks later by stripping everyone -- US citizens and foreigners -- of these privacy protections by exempting the DHS's Arrival and Departure System, as well as the multi-agency Automated Targeting System from the Privacy Act.

The more disturbing part of the order is the installation of a Two Minutes Hate program for foreigners and any municipalities deemed to be "sheltering" aliens from the federal government.

To better inform the public regarding the public safety threats associated with sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.

One would think it might be just as useful to collect information on domestic, US person-created "public safety threats" and make a "comprehensive list of criminal actions" committed by people who can't be expelled from the country. Presented without comparison, it will skew public perception, making it appear as though the main criminal force in the US is people who aren't here legally. (The order doesn't specify whether non-residence will be considered a "criminal action" worth listing in the report.)

On top of that, the order mandates the creation of an office that will cater solely to victims of criminal acts committed by non-US residents. It also orders the funding of additional personnel to man the borders and expedite the expulsion of non-residents. There's no stipulation for random testing of US persons' bodily fluids for dilution or impurities, but one assumes the nascent order will be undergo further alteration during rollout.

Filed Under: donald trump, executive order, foreigners, privacy, privacy act

Under President's New Cybersecurity Executive Order... Is Wikileaks Now An Evil Cyberhacker For Releasing Trade Deal?

from the broad-definitions,-broad-powers dept

Yesterday we talked about the ridiculousness of President Obama's new cybersecurity executive order, in which he declares a national emergency around "malicious cyber-enabled activities" and enables his own government to do mean things to anyone they think is responsible for cyber badness (that his own NSA is the primary instigator of serious cyberattacks gets left ignored, of course). One of the points we made is that the definitions in the executive agreement were really vague, meaning that it's likely that they could be abused in all sorts of ways that we wouldn't normally think of as malicious hacking.

Helpfully, the ever vigilant Marcey Wheeler has provided some examples of how the vague language can and likely will be twisted:

The EO targets not just the hackers themselves, but also those who benefit from or materially support hacks. The targeting of those who are “responsible for or complicit in … the receipt or use for commercial or competitive advantage … by a commercial entity, outside the United States of trade secrets misappropriated through cyber-enabled means, … where the misappropriation of such trade secrets is reasonably likely to result in, or has materially contributed to, a significant threat to the national security, foreign policy, or economic health or financial stability of the United States” could be used to target journalism abroad. Does WikiLeaks’ publication of secret Trans-Pacific Partnership negotiations qualify? Does Guardian’s publication of contractors’ involvement in NSA hacking?

And, that's not all. How about encryption providers? Not too hard to see how they might qualify:

And the EO creates a “material support” category similar to the one that, in the terrorism context, has been ripe for abuse. Its targets include those who have “provided … material, or technological support for, or goods or services in support of” such significant hacks. Does that include encryption providers? Does it include other privacy protections?

We've already seen some -- including government officials -- argue that Twitter could be deemed to be providing "material support" to ISIS if it didn't take down Twitter accounts that support ISIS. Twitter wouldn't directly qualify under this executive order (which targets non-US actors), but it shows you how easy it is to stretch this kind of thinking in dangerous ways.

Making sure the technology we use every day is secure is important. But vaguely worded executive orders and an over-hyped "national emergency" isn't the solution. Instead, it's likely to be abused in serious ways that harm our freedoms.

Filed Under: cybersecurity, executive order, leaks, material support, tpp
Companies: wikileaks

President Obama Signs Executive Order Saying That Now He's Going To Be Really Mad If He Catches Someone Cyberattacking Us

from the oh-come-on dept

This, apparently, is not an April Fool's joke. This morning, President Obama signed an executive order [pdf] allowing the White House to issue sanctions on those "engaging in significant malicious cyber-enabled activities." I'm sure the Chinese state hackers behind the Github DDoS are shaking in their boots.

To make this work, the President officially declared foreign hacking to be a "national emergency" (no, really) and basically said that if the government decides that some foreign person is doing a bit too much hacking, the US government can basically do all sorts of bad stuff to them, like seize anything they have in the US and block them from coming to the US. Because that won't be abused at all.

Look, everyone agrees that there's a lot of online hacking and computer attacks going on. So much of what we do in the world has moved online, so of course that's going to be a target. But giving a general "ARRRRRGGH! HACKING BAD! WHITE HOUSE MAD!" executive order seems incredibly pointless and counterproductive. It seems like yet another example of politicians feeling the need to do something because there's a problem -- but not having any good ideas on what to actually do that will help solve the problem. So they just do something to say they did something, never mind how toothless it is -- or (more importantly) how the broad and vague definitions set forth in the "something" they do can (and will) be used in the future against perfectly reasonable actions and actors.

It's stories like these that make actual computer security folks shake their heads in confusion at politicians. You don't solve cybersecurity issues with vague executive orders. You do it with better security practices (and not undermining those practices with backdoors and stockpiling zero days).

Filed Under: cybersecurity, executive order, national emergency, president obama, sanctions, white house