Supreme Court rules: the government can’t search your cellphone without a warrant; the boss can.

25 Jun

Good news: The Supreme Court ruled today that the police have to have a warrant to search the cell phone of someone they arrest.

Chief Justice John G. Roberts Jr., writing for the court, said the vast amount of data contained on modern cellphones must be protected from routine inspection.

The old rules, Chief Justice Roberts said, cannot be applied to “modern cellphones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

The courts have long allowed warrantless searches in connection with arrests, saying they are justified by the need to protect police officers and to prevent the destruction of evidence.

But Chief Justice Roberts said neither justification made much sense in the context of cellphones. On the other side of the balance, he said, is the data contained on the typical cellphone. Ninety percent of Americans have them, he wrote, and they contain “a digital record of nearly every aspect of their lives — from the mundane to the intimate.”

Even the word “cellphone” is a misnomer, he said. “They could just as easily be called cameras, video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps or newspapers,” he wrote.

Chief Justice Roberts acknowledged that the decision would make law enforcement more difficult.

“Cellphones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals,” he wrote. “Privacy comes at a cost.”

Bad news: The Supreme Court ruled four years ago that employers have the right to search the cell phones of their employees.

A hesitant Supreme Court waded cautiously into a question that arises daily in workplaces and offices across the country: whether employers have the right to look over the shoulders of workers who use company computers and cellphones for personal communication.

In the first ruling of its kind, the justices said they do, as long as there is a “legitimate work-related purpose” to monitor them. But the court said it would proceed cautiously in deciding how far an employer can go in searching the “electronic sphere” that has become an inescapable part of the modern workplace.

In the case at hand, the court ruled unanimously that a police chief’s search of text messages sent and received by a SWAT team officer did not violate his constitutional protection against unreasonable searches.

Even though Sgt. Jeff Quon of Ontario, Calif., had some expectation of privacy, the court said, the police department’s review — which turned up sexually explicit messages to his wife and his mistress — was justified.

But at a time when many employers warn that they can monitor workers’ use of company computers and cellphones, the court was reluctant to draw clear lines between what is private and what is not.

Quon’s case may sound familiar to many workers. Even though the department told him and his co-workers that they should not expect privacy when using their pagers, they were also told that personal use would be tolerated to a certain degree. If he exceeded the monthly allotment of texts, he was told, he would have to pay the difference.

He did go over the allowed number, but his superiors tired of collecting the fees and wondered whether the plan was too limited. The police chief ordered the records from the company that provided the texting service.

After removing the texts Quon sent when he was off-duty, his bosses found that the vast majority of his texts were personal — 400 of 456 one month. According to Kennedy’s opinion, he was “allegedly disciplined.”

Quon sued, saying the search violated the Fourth Amendment protections against unreasonable searches for him and those who texted him.

A district judge and the U.S. Court of Appeals for the 9th Circuit agreed with him.

But the justices said Quon should not have assumed that his text messages “were in all circumstances immune from scrutiny.” Kennedy said the department’s search was reasonable and, by eliminating those messages he sent while off-duty, not intrusive.

To my knowledge, the Court has not yet ruled on cases where the communication device in question was the employee’s personal property. That said, the fact that the pager in Quon’s case belonged to the employer does not seem to have been the operative issue; more important was, given the employer’s policies, the employee’s expectation of privacy. And since many employers make it explicit that employees should have little to no expectation of privacy on their communication devices at work, I’m not sure a case in which the phone belonged to the employee would make much of a difference.

So here is how things stand: when it comes to cell phone use, you have more protection against government searches than you do against employer searches. As an employer, the police have far more freedom to search cell phones than they do as an agency of the government.

Update (10 pm)

I should have noted this earlier, but it should also be emphasized that in the second case, the employer is the government. That the Court is even as solicitous of an employee’s privacy rights in that case as it is is probably due mostly to the fact that the employer in this case is the government. If the employer were private, there would be a much lower guarantee of employee privacy.

I should also note that in the Quon case, part of the employee’s expectation of privacy had to do with the fact that the pager belonged to the police. But the Court was careful to note that it did not want to make hard and fast rules about under what circumstances an employee could have a legitimate expectation of privacy.

An Imperial Shit

19 Jun

Readers of this blog will know—I hope—that I have a nearly physical revulsion toward all things imperial and militarist. But sometimes I have a reaction that points in the opposite direction. When terrible things happen to other people in other countries, and the cries for humanitarian intervention mount, I feel an emotional tug: We should do something to stop those terrible things! But then I think about someone who lives somewhere that doesn’t house a planetary armory. Does my doppelganger in Costa Rica or Lichtenstein feel that same tug? I don’t mean the natural human empathy for people who suffer; I mean that combination of guilt and duty that makes one feel like a shit, a bad person, for not doing anything or for opposing those who want to do something. I’m curious about this—how the state’s possession of a global artillery, and its assumption of a global duty, insinuates itself into the inner life of the imperial citizen, how a humanitarian sense of guilt and responsibility is the privilege, the lived experience, of imperial power. At least as that power is experienced by its holders.

When Presidents Get Bored

17 Jun

According to the Financial Times (h/t Doug Henwood), Obama is bored in the White House. The smallness of politics is tedious; he longs for more exalted pursuits:

“Just last night I was talking about life and art, big interesting things, and now we’re back to the minuscule things on politics,” Mr Obama complained after a dinner last month with Italian intellectuals in Rome. His cabin fever is tangible. On the plus side, there are only two-and-a-half years to go.

Reminds me of another thoughtful man in power. Alexis de Tocqueville served in the Chamber of Deputies throughout the July Monarchy. Despite his rhetorical support for liberal-ish democracy, the reality—parliaments, the rule of law, legislative haggling—bored him to tears. A “little democratic and bourgeois pot of soup” was how he described it to one of his closest friends. “Do you believe,” he wrote another of his correspondents, “that the political world will long remain as destitute of true passions as it is at this moment?” What is “most wanting,” he wrote another, is “political life itself.”

Beware politicians pining for “political life itself.” These men of ideas—what Theodore White called “action intellectuals”—tend to look for that life in the most deadly of places.

Usually abroad, in foreign wars and imperial exploits. As the British prepared to fight the Opium War, Tocqueville privately exulted, “I can only rejoice in the thought of the invasion of the Celestial Empire by a European War. So at last the mobility of Europe has come to grips with Chinese immobility!” Upon the conclusion of the Treaty of London, which threatened to diminish France’s role in the Middle East and aroused cries for war throughout France, Tocqueville wrote Mill that though he was wary of the rush to war, he thought it “even more dangerous” to “chime in with those who were loudly asking for peace, at any price.”

Or, if these action intellectuals look inward, it’s to the politics of reaction and counterrevolution. Thus, in 1848, Tocqueville was among the leading voices calling for the full suspension of civil liberties, welcoming talk of a “dictatorship” in order to preserve “the alienable right of Society to protect itself.” Whence the exhilaration? Whence the passion with which he defended a polity he had spent the better part of two decades denouncing? In his memoir of the Revolution of 1848, he offered an answer:

Let me say, then, that when I came to search carefully into the depths of my own heart, I discovered, with some surprise, a certain sense of relief, a sort of gladness mingled with all the griefs and fears to which the Revolution had given rise. I suffered from this terrible event for my country, but clearly not for myself; on the contrary, I seemed to breathe more freely than before the catastrophe. I had always felt myself stifled in the atmosphere of the parliamentary world which had just been destroyed: I had had found it full of disappointments, both where others and where I myself was concerned.

Defending liberalism against radicalism, Tocqueville was given the chance to use illiberal means for liberal ends, and it’s not entirely clear whether it was the means or the ends that most stirred him.

There was no field left for uncertainty of mind: on this side lay the salvation of the country; on that, its destruction. There was no longer any mistake possible as to the road to follow; we were to walk in broad daylight, supported and encouraged by the crowd. The road seemed dangerous, it is true, but my is so constructed that it is less afraid of danger than of doubt.

(Recall the words of Christopher Hitchens after 9/11: “I should perhaps confess that on September 11 last, once I had experienced all the usual mammalian gamut of emotions, from rage to nausea, I also discovered that another sensation was contending for mastery. On examination, and to my own surprise and pleasure, it turned out be exhilaration. Here was the most frightful enemy–theocratic barbarism–in plain view….I realized that if the battle went on until the last day of my life, I would never get bored in prosecuting it to the utmost.”)

Perhaps we have less to worry from Obama’s boredom. After all, he’s a writer and a politician who embraces—luxuriates in—moderation, skepticism, irony, and doubt. At least publicly.

Then again, so was Tocqueville.

Update (11 pm)

So it turns that that Obama quote, with which I led off my post, is not in fact a direct quote from Obama, but is instead a paraphrase, by one of Obama’s aides, of something Obama said. Slate‘s David Weigel has the whole story.

Why Aren’t the Poor More Responsible?

16 Jun

MIT economist Esther Duflo:

We tend to be patronizing about the poor in a very specific sense, which is that we tend to think, “Why don’t they take more responsibility for their lives?” And what we are forgetting is that the richer you are the less responsibility you need to take for your own life because everything is taken care for you. And the poorer you are the more you have to be responsible for everything about your life….Stop berating people for not being responsible and start to think of ways instead of providing the poor with the luxury that we all have, which is that a lot of decisions are taken for us. If we do nothing, we are on the right track. For most of the poor, if they do nothing, they are on the wrong track.

I’m not sure that “we” is as big as Duflo thinks, but her point is a good one. Reminds me of this post I did three summers ago.

My Dirty Little Secret: I Ride the Rails to Read

14 Jun

Like most academics, I read articles and books. Unlike most academics (maybe, I don’t really know), reading has become harder and harder for me. Not simply because of the distractions that come with department politics, administrative duties (come July 1, I’m chair of my department), advising grad students, and teaching. I wish it were as noble as that. No, the reason I find it so difficult to read these days, now years, is the internet.

Which is why I was so relieved to read this wonderful post by Tim Parks about how difficult it is now to read.

Every reader will have his or her own sense of how reading conditions have changed, but here is my own experience. Arriving in the small village of Quinzano, just outside Verona, Italy, thirty-three years ago, aged twenty-six, leaving friends and family behind in the UK, unpublished and unemployed, always anxious to know how the next London publisher would respond to the work I was writing, I was constantly eager for news of one kind or another. International phone-calls were prohibitively expensive. There was no fax, only snail mail, as we called it then. Each morning the postino would, or might, drop something into the mailbox at the end of the garden. I listened for the sound of his scooter coming up the hairpins from the village. Sometimes when the box was empty I would hope I’d heard wrong, and that it hadn’t been the postino’s scooter, and go out and check again an hour later, just in case. And then again. For an hour or so I would find it hard to concentrate or work well. You are obsessed, I would tell myself, heading off to check the empty mailbox for a fourth time.

Imagine a mind like this exposed to the seductions of email and messaging and Skype and news websites constantly updating on the very instrument you use for work. In the past, having satisfied myself that the postman really had come and gone, the day then presented itself as an undisturbed ocean of potential—for writing (by hand), reading (on paper), and, to pay the bills, translating (on a manual typewriter). It was even possible in those days to see reading as a resource to fill time that hung heavy when rain or asphyxiating heat forced one to stay indoors.

Now, on the contrary, every moment of serious reading has to be fought for, planned for.

I, too, remember when reading was an effortless way to pass the time. And what my work routine looked like as a result. Writing in the morning, reading in the afternoon, writing in the evening. Reading was easy. It required less concentration and stamina, so I did it during the lazy hours after lunch. My most alert times—just after my morning coffee and during my insomniac hours—were reserved for writing.

Nowadays, it’s the reverse. Writing absorbs me, so I do it in the afternoons, maybe the evenings. But reading, as Parks writes, has to be planned for. I have to wrest my reading time from the come-hither arms of the internet, so I do it in the morning.

Here’s how I do it. After I drop off my daughter at school or summer camp, I jump on the subway. I ride the rails for three to four hours. Maybe the F train: out to Coney Island, back through Brooklyn, into Manhattan, out to Forest Hills, and then back. Or if I’m pressed for time, just the Q train: again out to Coney, back through Brooklyn, into Manhattan, out to Astoria, and back. Or if I’m in the mood for a change, the B or the D trains: they ultimately take me to the Bronx and back.

I take nothing with me but my book and a pen. I take notes on the front and back pages of the book. If I run out of pages, I carry a little notebook with me. I never get off the train (except, occasionally, to meet my wife for lunch in Manhattan.) I have an ancient phone, so there’s no internet or desire to text, and I’m mostly underground, so there are no phone calls.

When I get back, I sometimes post about my little rides and what I’m reading on Facebook: Schumpeter in Queens, The Theory of Moral Sentiments in the Bronx, Hayek in Brooklyn. The more incongruous, the better, though sometimes I find some funny or interesting parallels between what I’m reading and where I’m riding and what I’m seeing.

But the joking on Facebook covers up my dirty little secret: I ride the rails to read because if I’m at home, and not writing, I’m on the internet. “It is not simply that one is interrupted,” as Park writes; “it is that one is actually inclined to interruption.”

I’m not sure why it’s reading that requires these Odysseus-like acts of self-denial (sometimes I also use the Freedom program to read), while writing does not. I suspect it has something to do with what Parks says: “The mind, or at least my mind, is overwhelmingly inclined toward communication or, if that is too grand a word, to the back and forth of contact with others.” When I write, I feel like I’m in communication with others: not only my imagined readers, but also my imagined interlocutors—the people I’m arguing with, the theorists I’m arguing about, that professor in grad school whose comments still spark my imagination. It’s nothing as grand as what Machiavelli described in his letter to Vettori:

On the coming of evening, I return to my house and enter my study; and at the door I take off the day’s clothing, covered with mud and dust, and put on garments regal and courtly; and reclothed appropriately, I enter the ancient courts of ancient men, where, received by them with affection, I feed on that food which only is mine and which I was born for, where I am not ashamed to speak with them and to ask them the reason for their actions; and they in their kindness answer me; and for four hours of time I do not feel boredom, I forget every trouble, I do not dread poverty, I am not frightened by death; entirely I give myself over to them.

But it’s definitely company.

Reading feels much more solitary. It can be boring and passive, and when it’s not, when I find something interesting that excites me, I want to share it with everyone. If I’m reading at home, I rush to the computer, and post about it on Facebook or here on my blog. And then I don’t get off. For hours. When I’m on the train, there’s nothing to do, but note it on the back page, and stay on. For hours.

Going to My College Reunion

30 May

Tomorrow, I’m heading down to Princeton for my 25th year college reunion. It’s a four-day extravaganza, which prompted Moustafa Bayoumi to say to me, “I didn’t know Princeton folk could limit listing their accomplishments to four days only. I admire the restraint.” I’m only going for a day.

I know that writing about one’s reunion has become a literary genre in its own right. But where I was excited to go to my high school reunion, my college reunion doesn’t awaken much in me. We’ll see how I feel tomorrow, but for now I’ve been wondering why.

It’s not that I had better friends in, or memories of, high school. I’ve been lucky in both cases to have had very good friends and very good memories.

It might be that high school was a more intellectually exciting experience for me than was college. High school was the moment of my intellectual awakening, and your first is, well, your first.

Or it might be that despite the fact that Chappaqua, where I grew up, and Princeton were (and are) bastions of privilege, something about the university just wreaks [Benefits of an Ivy League education™] reeks of the breathless aristocracy in a way that Chappaqua never did for me. Or maybe I was just more conscious of that privilege as a young adult in college than I was growing up as a teenager in the suburbs of New York.

But I wonder if there isn’t a more existential reason for it all. High school is a stand-in for me of time passing, time lost. A fair number of my friends from college are academics, writers, neighbors: they’re part of my world today in a way that most of my high school friends are not. Princeton also has a professional valence for me. It stands for the colleagues, fellowships, and conferences that are now part of my academic life.

Though I keep in touch with high school friends via Facebook or the occasional coffee, that world we shared seems so far away from my world. So it makes going back to high school all the more exciting, mysterious, and poignant. Princeton? That’s just another trip on NJ Transit.

I’m getting old.

What Made Evangelical Christians Come Out of the Closet?

30 May

In The Reactionary Mind, I briefly argued that much of the energy behind the Christian Right came not from its opposition to abortion or school prayer but its defense of segregation. Based on early research by historians Joseph Crespino and Matthew Lassiter, I wrote:

Evangelical Christians were ideal recruits to the [conservative] cause, deftly playing the victim card as a way of rejuvenating the power of whites. “It’s time for God’s people to come out of the closet,” declared a Texas televangelist in 1980.

But it wasn’t religion that made evangelicals queer; it was religion combined with racism. One of the main catalysts of the Christian right was the defense of Southern private schools that were created in response to desegregation. By 1970, 400,000 white children were attending these “segregation academies.” States like Mississippi gave students tuition grants, and until the Nixon administration overturned the practice, the IRS gave donors to these schools tax exemptions.

According to New Right and direct-mail pioneer Richard Viguerie, the attack on these public subsidies by civil rights activists and the courts “was the spark that ignited the religious right’s involvement in real politics.” Though the rise of segregation academies “was often timed exactly with the desegregation of formerly all-white public schools,” writes one historian, their advocates claimed to be defending religious minorities rather than white supremacy (initially nonsectarian, most of the schools became evangelical over time).

Their cause was freedom, not inequality—not the freedom to associate with whites, as the previous generation of massive resisters had claimed, but the freedom to practice their own embattled religion. It was a shrewd transposition. In one fell swoop, the heirs of slaveholders became the descendants of persecuted Baptists, and Jim Crow a heresy the First Amendment was meant to protect.

Politico has a great piece up this week pursuing this argument in much greater depth. Dartmouth historian Randall Balmer has immersed himself in the archives of the Moral Majority and other organizations and activists of the Christian Right, and found some fascinating details. Though abortion would come to play a role later on, it was the school segregation issue that truly galvanized the leaders and cadres of the Christian Right.

Both before and for several years after Roe, evangelicals were overwhelmingly indifferent to the subject, which they considered a “Catholic issue.” In 1968, for instance, a symposium sponsored by the Christian Medical Society and Christianity Today, the flagship magazine of evangelicalism, refused to characterize abortion as sinful, citing “individual health, family welfare, and social responsibility” as justifications for ending a pregnancy. In 1971, delegates to the Southern Baptist Convention in St. Louis, Missouri, passed a resolution encouraging “Southern Baptists to work for legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.” The convention, hardly a redoubt of liberal values, reaffirmed that position in 1974, one year after Roe, and again in 1976.

When the Roe decision was handed down, W. A. Criswell, the Southern Baptist Convention’s former president and pastor of First Baptist Church in Dallas, Texas—also one of the most famous fundamentalists of the 20th century—was pleased: “I have always felt that it was only after a child was born and had a life separate from its mother that it became an individual person,” he said, “and it has always, therefore, seemed to me that what is best for the mother and for the future should be allowed.”

Although a few evangelical voices, including Christianity Today magazine, mildly criticized the ruling, the overwhelming response was silence, even approval. Baptists, in particular, applauded the decision as an appropriate articulation of the division between church and state, between personal morality and state regulation of individual behavior. “Religious liberty, human equality and justice are advanced by the Supreme Court abortion decision,” wrote W. Barry Garrett of Baptist Press.

***

So what then were the real origins of the religious right? It turns out that the movement can trace its political roots back to a court ruling, but not Roe v. Wade.

But this hypothetical “moral majority” needed a catalyst—a standard around which to rally. For nearly two decades, [Paul] Weyrich, by his own account, had been trying out different issues, hoping one might pique evangelical interest: pornography, prayer in schools, the proposed Equal Rights Amendment to the Constitution, even abortion. “I was trying to get these people interested in those issues and I utterly failed,” Weyrich recalled at a conference in 1990.

The Green v. Connally [declaring unconstitutional tax exemptions for private schools that practice racial discrimination] ruling provided a necessary first step: It captured the attention of evangelical leadersespecially as the IRS began sending questionnaires to church-related “segregation academies,” including Falwell’s own Lynchburg Christian School, inquiring about their racial policies. Falwell was furious. “In some states,” he famously complained, “It’s easier to open a massage parlor than a Christian school.”

Although Bob Jones Jr., the school’s [Bob Jones University] founder, argued that racial segregation was mandated by the Bible, Falwell and Weyrich quickly sought to shift the grounds of the debate, framing their opposition in terms of religious freedom rather than in defense of racial segregation.

For many evangelical leaders, who had been following the issue since Green v. Connally, Bob Jones University was the final straw. As Elmer L. Rumminger, longtime administrator at Bob Jones University, told me in an interview, the IRS actions against his school “alerted the Christian school community about what could happen with government interference” in the affairs of evangelical institutions. “That was really the major issue that got us all involved.”

When Reagan addressed a rally of 10,000 evangelicals at Reunion Arena in Dallas in August 1980, he excoriated the “unconstitutional regulatory agenda” directed by the IRS “against independent schools,” but he made no mention of abortion.

Follow

Get every new post delivered to your Inbox.

Join 3,823 other followers