The FBI and the Right of Privacy

In response to a Freedom of Information lawsuit, the FBI has recently made public its Domestic Investigations and Operations Guide. This document details the FBI’s interpretation of domestic intelligence-gathering rules which were relaxed under the Bush Administration.

In order to begin an investigation into a suspected terrorist, the initial requirements set forth under the FBI’s interpretation are rather low. This guide also allows for the use of ethnicity and/or religion to be used as a factor for determining persons of interest, as long as ethnicity and/or religion are not the only factors used. While information gathering may not be based on “arbitrary or groundless speculation,” the factual evidence required to start such an investigation is not clearly defined. The FBI claims that the flexibility provided by their interpretation is required in order to properly perform a proactive sweep for would-be terrorists residing within the United States.

If an investigation is commenced, the FBI can then send out “confidential informants to infiltrate organizations and following and photographing targets in public.” Even if nothing is found, the information gathered is then stored in the FBI databases. The FBI had the ability to perform such investigation previously regarding criminal activities, but greater justification was required to do so (at least prior to the FBI’s new interpretations).

Some are concerned that this broad interpretation interferes with citizens’ civil liberties, as the FBI’s interpretation allows them the “right to collect broad personal information about people they don’t even suspect of wrongdoing.” However, the FBI’s general counsel claims that this interpretation is not as threatening as some fear, and that civil liberties still will be protected; she claims that the FBI’s job is not to wait to investigate somebody until they perform some type of terrorist activity, but to ensure they don’t get a chance to do so at all.

The ability of the FBI, or any government agency, to collect data on its citizens for no more of a reason than basically a hunch is rather disturbing. While the FBI may deny it (or even prevent it in writing), this opens the door for profiling of citizens based on religion or ethnicity. The FBI has already used this new-found power to investigate whole Somali communities rather than just those people for whom they had prior information.

While the threat of future terrorist activity on United States soil is frightening, the government ‘s exploitation of this fear to expand their powers and reduce citizens’ rights is even more frightening. With this proactive approach and lack of properly defined guidelines, the FBI has the ability to gather information on almost anybody, and any data gathered, whether the person is found of wrongdoing or not, will be stored in the FBI’s database; with such procedures in place, many innocent citizens will have their right to privacy violated for no sufficient reason.

For the full article from the New York Times, click here.

Animal Cruelty and the First Amendment

This week, the United States Supreme Court was asked to rule on the First Amendment as it relates to animal cruelty. In United States v. Stevens, the Court was asked “to reinstate a 10-year-old federal law that bans the production and sale of videos that show torture, mutilation and death of animals.” By reinstating this federal law, videos depicting such things as dog fighting and cock fighting; also, so-called “crush” videos would lose any First Amendment protections they may have once been covered by.

The last time the Court ruled that speech was found unredeeming of First Amendment protection was 25 years ago; in that instance, the Court ruled that child pornography was not protected speech under the First Amendment. After oral arguments on Tuesday, it does not seem likely that the Court will add videos of animal cruelty to this list of unprotected speech.

Supporting the reinstatement of this federal law are groups such as the Humane Society. Their claim is that the actions depicted are already deemed illegal under state and federal law, and as such depictions of these acts on video should also be illegal. Supporters of reinstating the law claim that the law will only illegalize speech depicting "the most extreme and unimaginable acts of cruelty,” and as such there "should be no safe harbor in the First Amendment for those who perpetrate them."

Those opposing the reinstatement of the law claim that the language of the law is too overbroad. It is feared that this language of this law can be read to extend to videos of hunting and bullfighting, as well as to any documentaries that may actually be discouraging cruelty to animals. With the language how it reads now, the decision of what is and isn’t protected by the First Amendment would have to be subjectively decided by the government.

Being a believer in the need for First Amendment protections, as well as an opponent to any form of animal cruelty, this case at first glance seems like one that would cause a conflict between the two beliefs. However, if the language of the law is in fact so broad that it could allow the government to ban videos in which the message is to prevent animal cruelty, then it seems as if this law is not the proper answer to disallowing said videos.

There are already laws against dog fighting, cock fighting and cruelty to animals. To take the next step to ban videos of this, while admirable, apparently does more than it is intended to. At the same time, it is not the government’s job to be the morality police of its citizens, especially at the expense of limiting Constitutional rights. Cruelty to animals is not the same as child pornography, and does not require the same level of government aid to prevent. It is sad what is happening to these animals in these videos, and it is also illegal (at least in the United States); still, to overly limit First Amendment protection violates the Constitutional rights of citizens and as such it would seem appropriate in this case that the law not be reinstated as is currently written.

For the article from the Washington Post, click here.

The 2nd Amendment and the States

The United States Supreme Court is scheduled to hear challenges to handgun laws in Chicago and Oak Park, Illinois. The Supreme Court last year ruled in District of Columbia v. Heller that the 2nd Amendment provides for handgun ownership in relation to the “federal government and federal enclaves such as Washington. “ In hearing these challenges to gun laws in Illinois, the Supreme Court will rule on state and local laws and whether these laws are constitutional in regards to the 2nd Amendment.

According to Alan Gura, the lawyer who filed the challenges, the laws in question is “identical” to the law that was challenged in Heller. “Gura hopes for a ‘definitive ruling’ on Chicago's restrictions and said he thinks that at a minimum the court would strike the same kind of handgun ban it found objectionable in Washington. “

Gun-control advocates show little concern for whether the laws in question are found unconstitutional. Even though many expect the Court to find that the Second Amendment applies to states and municipalities, gun-control advocates remain confident that, as in Heller, the application of the 2nd Amendment as applied to states will be narrowed to limit guns in the home for self-defense purposes.

The decision in Heller was split 5-4 last year. For the minority, the more liberal judges argued that the 2nd Amendment only guaranteed the right to bear arms to maintain groups such as militias. Still, many expect the five Justices from the majority to prevail once again, which may lead to challenges to state gun laws. Such challenges are expected to include challenges to such things as: gun registration; storage requirements; where guns may be carried; and, how (i.e. concealed or not) weapons may be carried.

Once again, it will be interesting to view how the Justices interpret and apply the 2nd Amendment in this case. Perhaps one of the most divisive and debated Amendments, the Supreme Court finally has a chance to make “definitive ruling” on the matter. However, even if such a ruling is handed down, it appears that arguments as to related issues will only get started.

For the full article from the Washington Post, click here.