“The Rise and Fall of Aereo”

Damon Root, in the latest issue of Reason, has an interesting piece explaining the U.S. Supreme Court battle between Aereo, makers of a tiny antenna which allowed subscribers to watch and record TV broadcasts on their mobile phones, and the major American TV networks. 

“Subscribers” might be the key word here. I get the impression that Aereo might have won its case had its device been more like an old-fashioned rabbit-ears antenna, which you paid for once, transmitted nothing and received television signals broadcast for free over the public airwaves.

The Aereo model was found to violate the 1976 Copyright Act, but even some justices who sided with the broadcasters asked pointed questions about how their (ultimately successful) argument could affect cloud computing services. There’s too much here to excerpt, so read the whole thing.

Book review: “Rise of the Warrior Cop” by Radley Balko

[originally posted at Canadian Lawyer]

The next thing [Cheye] Calvo remembers is the sound of his mother-in- law screaming. He ran to the window and saw heavily armed men clad in black rushing his front door. Next came the explosion. He’d later learn that this was when the police blew open his front door. Then there was gunfire. Then boots stomping the floor. Then more gunfire. Calvo, still in his boxers, screamed, “I’m upstairs, please don’t shoot!” He was instructed to walk downstairs with his hands in the air, the muzzles of two guns pointed directly at him. He still didn’t know it was the police. He described what happened next at a Cato Institute forum six weeks later. “At the bottom of the stairs, they bound my hands, pulled me across the living room, and forced me to kneel on the floor in front of my broken door. I thought it was a home invasion. I was fearful that I was about to be executed.” I later asked Calvo what might have happened if he’d had a gun in his home for self-defense. His answer: “I’d be dead.” In another interview, he would add, “The worst thing I could have done was defend my home.”

Calvo’s mother-in-law was face-down on the kitchen floor, the tomato-artichoke sauce she was preparing still sitting on the stove. Her first scream came when one of the SWAT officers pointed his gun at her from the other side of the window. The police department would later argue that her scream gave them the authority to enter the home without knocking, announcing themselves, and waiting for someone to let them in.

Rather than obeying the SWAT team demands to “get down” as they rushed in, Georgia Porter simply froze with fear. They pried the spoon from her hand, put a gun to her head, and shoved her to the floor. They asked, “Where are they? Where are they?” She had no idea what they were talking about. She told them to look in the basement. She would later tell the Washington Post, “If somebody puts a gun to your head and asks you a question, you better come up with an answer. Then I shut my eyes. Oh, God, I thought they were going to shoot me next.”

Calvo’s dogs Payton and Chase were dead by the time Calvo was escorted to the kitchen. Payton had been shot in the face almost as soon as the police entered the home. One bullet went all the way through him and lodged in a radiator, missing Porter by only a couple of feet. Chase ran. The cops shot him once, from the back, then chased him into the living room and shot him again.

Even after they realized they had just mistakenly raided the mayor’s house, the officers didn’t apologize to Calvo or Porter. Instead, they told Calvo that they were both “parties of interest” and that they should consider themselves lucky they weren’t arrested. Calvo in particular, they said, was still under suspicion because when armed men blew open his door, killed his dogs, and pointed their guns at him and his-mother-in-law, he hadn’t responded “in a typical manner.”

Such stories are far too common, unfortunately, and no one does a better job keeping track of them than libertarian journalist Radley Balko.  Writing for the Huffington Post after several years at Reason, Balko has chronicled dozens of nightmarish stories about prosecutorial abuse and dangerous – and often deadly – overreaction by police forces.  And now he has written what might be the most important book of the year.

The American Bill of Rights contains a provision against the quartering of military personnel in civilian households – a reaction to the stationing of British soldiers in American cities, a grievance which led to the American revolution.  But you’d hardly know it today, when you see the equipment, gear and tactics used by SWAT teams even in medium-sized American communities.

Indeed, SWAT teams have become so ubiquitous it’s hard to believe they’re a relatively recent invention.  Following the Watts riots in 1965, soon-to-be Los Angeles police chief Darryl Gates created the country’s first Special Weapons and Tactics force, quickly using it high-profile confrontations against radical groups like the Black Panthers and Symbionese Liberation Army – with the media in tow.

Gates figures heavily in Balko’s narrative – he was ahead of his time in acquiring surplus armored personnel carriers (disingenuously marked “Rescue Vehicle”) for the LAPD.  But even he refrained from many of the tactics commonly used today.

Meanwhile, the Supreme Court of the United States (under Chief Justice Earl Warren) was issuing consistently liberal decisions – most notably Miranda – which extended the rights of the accused.  With crime becoming a more important issue for voters during that turbulent era, the Nixon Administration seized an opportunity to crack down against perhaps the most easily demonized class then and now – illicit drug users.  The age of paramilitary-style assaults in the service of civilian law enforcement had begun.

The “War on Drugs” escalated in the eighties, and police tactics became increasingly aggressive – not just against gangs and drug traffickers, but against people keeping small skins of marijuana for their own use.  On paper,  “no-knock” raids, in which police burst into a home without having to knock and announce their presence, were only allowed after strict scrutiny by a judge.  In practice, police requests for no-knock warrants were rubber-stamped by the courts.  SWAT teams, meanwhile, began showing up in smaller cities, then the suburbs, and even rural areas.

Crime in America has dramatically declined since the early 1990s, but police tactics have only gotten more aggressive, aided by a series of court decisons that have neutered the Fourth Amendment (which is supposed to guard against unreasonable search and seizure).  Some would argue a clear cause and effect, but Balko convincingly argues that the fall in violent crime has occurred despite the militarization of police, not because of it.

Indeed, aggressive police raids – where doors are kicked in, machine guns are held to civilians’ heads and houses are completely ransacked – create a backlash against the police and against the legal system in general – especially when these tactics are used against “crimes” as mundane as raiding poker games, checking high school students’ lockers for drugs, and even cracking down on unlicensed hairdressers.

Balko notes that a backlash against police militarization has been building in recent years, a promising development undermined by the fact that American politicians tend to be outraged by this kind of thing when the other party controls the White House.  His main proposal for reform is ending the costly, unworkable and devastating “War on Drugs”, but he acknowledges that this is extremely unlikely – though with a few states voting to legalize the weed entirely, who knows?

In the alternative, Balko suggests more community policing, having SWAT team members wear video cameras, and curtailing the practice of civil asset forfeiture (in which property is seized from people accused of drug-related offences, and which in practice has become a serious revenue stream for federal, state and municipal governments.)

But this is just an American phenomenon, right?  To a much greater extent than in Canada, yes.  But ask the family of Sammy Yatim how quickly our own police officers reach for their weapons.

The unlikely champion of same-sex marriage

Ted Olson, the lawyer arguing in favor of marriage equality before the Supreme Court of the United States – the sixtieth time he’s appeared before America’s highest court –  has the background you’d least expect:

Certain law partners no longer call Theodore B. Olson for lunch. Old friends no longer come to dinner at his sprawling house in the woods near the Potomac. One of his best friends died in December, somewhat estranged.

All since Olson — the conservative legal hero, crusader against Bill and Hillary Rodham Clinton, defender of George W. Bush — signed on to fight for same-sex marriage in California, a battle that he will take to the U.S. Supreme Court on Tuesday when he challenges Proposition 8, the state measure that banned gay marriage.

Olson will argue that gays and lesbians should have an equal right to marry, a view that, if shared by the justices in a ruling after Tuesday’s hearing, would strike down the California ban.

“They feel a little rebuffed, that their leader has turned on them,” said Olson’s wife, Lady Booth Olson.

Olson, 72, brushes aside the shunning. The marriage case, the 60th case that he will have argued before the nation’s highest court, has been a transformative experience, he says. He speaks with passion, and sometimes a tear, about the gay men and women, including Republicans, who reach out to thank him.

[…]

…it was the election to replace President Clinton in 2000 that made Ted Olson a conservative hero. He persuaded the Supreme Court in Bush vs. Gore to block a planned re-count of presidential votes in Florida. The legal coup handed the White House to the Republican. Bush rewarded Olson by naming him solicitor general, the government’s chief representative at the high court. The nomination sparked a three-month confirmation battle. Worse lay ahead.

On Sept. 11, 2001, shortly after 9 a.m., Olson was in his Justice Department office preparing for the Supreme Court term that would begin in a few weeks. Barbara called, sounding anguished. She was on an American Airlines flight to Los Angeles. It was his 61st birthday, and she had delayed her trip to be with him the night before.

The plane had been hijacked, Barbara said, and she asked what she should do. The call was cut off. She called back, staying on the line long enough for them to exchange quick words of love. Ten minutes later, the plane crashed into the Pentagon.

Was Olson changed by his wife’s tragic murder and subsequent remarriage?  Maybe, but David Frum – another Republican heretic on this issue (and many others) – insists that he supported the idea well over a decade ago:

I vividly remember a dinner with Ted and Barbara Olson in February 2001. In those days, my in-laws spent most of the month of February in Florida, and they always stopped to see their grandchildren and (afterthought) my wife and me on their drives south and north from Toronto. The Olsons kindly invited the four of us to dinner during the stopover, which is how I can be so sure of the month; I can be sure of the year because the dinner was the last time my in-laws saw Barbara. She was murdered in the hijacking of American Airlines Flight 77 on September 11, 2001.

I don’t remember how or why the issue of same-sex marriage arose during the dinner, but it did. The balance of opinion at the time was 4-1 against Ted, with Barbara mostly preserving a discreet (and unusual!) silence on the subject. Ted argued very passionately that gays were entitled to every right of straight Americans, and drove home his point by itemizing instances of antisemitic discrimination that he, a Gentile, had battled at the beginning of his legal career. This is no different, he insisted. Near the end of the discussion, he predicted that the country – and everybody at the table – would come round to his view sooner or later, probably sooner.

They certainly did.

University of Houston law professor David R. Dow, in The Daily Beast, says Supreme Court Justices who don’t agree with David R. Dow (or President Obama) should be impeached.  Think I’m oversimplifying his argument?  Just read the article. (via InstaPundit)

Somewhere, in an alternate universe, President Gingrich is loving this.