Senate Majority Leader Harry Reid (D-NV) expects a showdown in July over a potential second round of filibuster reform, and he’s prepared to push for a sweeping change to the minority’s ability to unilaterally obstruct judges and other nominees. According to reporting by the Washington Post’s Greg Sargent, Reid “is eyeing a change to the rules that would do away with the 60-vote threshold on all judicial and executive branch nominations.” The test, according to Sargent, of whether Reid will push this reform is whether Senate Republicans lift their blockades on Consumer Financial Protection Bureau Director Richard Cordray, Labor Secretary nominee Tom Perez, and Environmental Protection Agency leader-in-waiting Gina McCarthy.

 

While Reid’s apparent willingness to press serious filibuster reform is welcome, he made similar statements during the lead up to a debate over filibuster reform last January. That debate ultimately led to a weak package of reforms and a victory for Republicans. A minority of Senate Democrats, lead by Sen. Carl Levin (D-MI), refused to support reforms that would enable the Senate to function in the face of a determined obstructionist minority.

This time around, however, there are two reasons why Reid may be successful in pulling together the 51 votes necessary to achieve real reform. The first is the simple fact that Levin is retiring, so he can no longer approach colleagues as a powerful committee chair who could potentially influence the fate of their bills for years. Beyond that, a key Democratic ally is now facing what could potentially be an existential threat. Two Republican courts held that President Obama’s recess appointments to the National Labor Relations Board (NLRB) are not valid, and if these decisions are upheld it will completely disable the NLRB’s ability to function. Without the NLRB, the backbone of federal labor law will become completely unenforceable — and with it, the right to organize could effectively cease to exist so long as Senate Republicans block new appointments to the Board. Unless, of course, Senate Democrats take away the ability to block confirmations via a filibuster.

The Illinois legislature sent a medical marijuana bill to Gov. Pat Quinn Friday, after the Senate passed a measure 35-21 largely along party lines. The measure would permit marijuana use with a doctor’s prescription for 33 specified ailments, require users, growers, and dispensaries to undergo fingerprinting and criminal background checks, and limit the number of growers and dispensaries.

The news comes as several new studies are released suggesting that marijuana may aid in post-traumatic stress disorder, Crohn’s disease, diabetes, and as a possible weight control remedy. All of these studies, however, were either performed in other countries or based on surveys or self-reporting from marijuana users, because federal agencies have blocked access to a legal supply of marijuana even for academic studies.

Earlier this month, Gov. Martin O’Malley (D) signed Maryland’s much more limited marijuana law, which provides narrow access to medical marijuana for research purposes. If the bill is signed into law, Illinois would become the 20th state with a medical marijuana law, in addition to the District of Columbia. Gov. Quinn has said he is “open-minded” about the measure.

After President Obama opened the door to temporary legal status for more than a million young immigrants who came to the United States as children, Arizona and other states imposed their own hurdles to these deferred action beneficiaries living and working in the United States as the policy intended. On Thursday, a federal judge suggested he would likely find unconstitutional an Arizona policy denying driver’s licenses to these Deferred Action for Childhood Arrivals beneficiaries. In a ruling declining to temporarily block Gov. Jan Brewer’s policy pending trial, U.S. District Judge David G. Campbell — a George W. Bush appointee and former clerk to the late conservative Justice Williams Rehnquist — said there is likely no rational justification for Brewer flouting federal immigration policy and treating deferred action beneficiaries differently than all other temporary legal residents:

The Governor’s disagreement with the DACA program may be a rational political or policy view in the broad sense – reasonable people certainly can disagree on an issue as complex and difficult as immigration – but it provides no justification for saying that an Arizona driver’s license may be issued to one person who has been permitted to remain temporarily in the country on deferred action status – say for an individual humanitarian reason – while another person who has been permitted to remain temporarily in the country on deferred action status under the DACA program is denied a license. … The Governor’s political disagreement with the DACA program as “backdoor amnesty” does not change the fact that both individuals have been allowed by the federal government to live and work here, nor does it identify a reason that one of the individuals presents less of a driver’s-license-related risk to the State.

The DACA program was intended to give young undocumented immigrants access to legal employment while they remain in the country, but depriving these beneficiaries of driver’s licenses of and other basic government services imposes major obstacles to achieving that goal. This hostility toward federal immigration policy should come as no surprise from the state that brought us SB 1070 and other discriminatory immigration laws, many parts of which have already been struck down by courts.

In opting not to block Brewer’s policy pending trial, Judge Campbell reasoned that the plaintiffs were not suffering irreparable harm, because most of them either continued to drive without a license out of necessity, or had other means of transportation. But this does not mitigate the risk that these immigrants incur every day they drive without a license, nor the public safety risks and hundreds of millions of dollars in insurance claims costs imposed by uninsured drivers. These factors will likely be a consideration in a final ruling by Campbell, and he appears poised to find Arizona’s policy a violation of the Constitution’s Equal Protection Clause. Campbell also rejected the state’s motion to dismiss the case.

Carolyn Compton is in a three year-old relationship with a woman. According to Compton’s partner Page Price, Compton’s ex-husband rarely sees their two children and was also once charged with stalking Compton, a felony, although he eventually plead to a misdemeanor charge of criminal trespassing.

And yet, thanks to a Texas judge, Compton could lose custody of her children because she has the audacity to live with the woman she loves.

According to Price, Judge John Roach, a Republican who presides over a state trial court in McKinney, Texas, placed a so-called “morality clause” in Compton’s divorce papers. This clause forbids Compton having a person that she is not related to “by blood or marriage” at her home past 9pm when her children are present. Since Texas will not allow Compton to marry her partner, this means that she effectively cannot live with her partner so long as she retains custody over her children. Invoking the “morality clause,” Judge Roach gave Price 30 days to move out of Compton’s home.

Compton can appeal Roach’s decision, but her appeal will be heard by the notoriously conservative Texas court system. Ultimately, the question of whether Compton’s relationship with Price is entitled to the same dignity accorded to any other loving couple could rest with the United States Supreme Court.

Gabriel Gomez, the Republican nominee to fill John Kerry’s open Senate seat in Massachusetts, Tweeted a stunning attack against his opponent Friday, claiming, without any apparent justification, that a campaign ad by Rep. Ed Markey (D) blamed him personally for the Newtown shooting.

Markey’s ad correctly notes that Gomez opposes a federal assault weapons ban and is also against a ban on high-capacity magazines. Gomez has explained his opposition to such weapon restrictions, saying “If they [gun buyers] all the checks and they’re qualified to use a weapon, I don’t think we need to restrict what kind of weapon they use.”

From the ad, titled “Clear Differences”:

NARRATOR: Real differences in the race for Senate: Ed Markey has taken on the NRA. He’ll continue to fight for common-sense laws to stop gun violence. And Gabriel Gomez? Gomez is against banning assault weapons.

GOMEZ (in clip): I don’t believe that we need to do an assault weapon ban.

NARRATOR: And Gomez is against banning high capacity magazines, like the ones used in the Newtown school shooting.

GOMEZ (in clip): I don’t believe that you should have a limit on the high-capacity magazines.

NARRATOR: The more you know, the clearer the choice.

Watch the spot:

Gomez tweeted Friday:

.@edmarkey‘s new TV ad blames me for the horrific Newtown shooting. Exploiting a tragedy for political gain is sick. bit.ly/12GQTEe

— Gabriel Gomez (@GomezForMA) May 17, 2013

In a press release making the same charges, Gomez also inaccurately claims: “The only gun measure before Congress is the Toomey-Manchin proposal for expanded background checks which, just as I do, Congressman Markey supports.” The Senate voted on an assault weapons ban and magazine restrictions last month, at the same time as the minority blocked expanded background checks.

In a January letter, asking for Gov. Deval Patrick (D) to appoint him to the vacant Senate seat, Gomez contradicted his current position, writing: “Two main issues that will dominate the political discussion during this appointment will be Immigration Reform and Gun Control. Given my Latino and Navy SEAL background, I have credibility to contribute thoughtfully on these issues. I support the positions that President Obama has taken on these issues and you can be assured I will keep my word and work on these issues as I have promised.”

You may start seeing more people carrying James Bond’s gun around — by law. A new proposed federal law would require that all new guns, and eventually all guns for sale, would be required to have “smart” identification technology that only allows specially authorized users to fire it, something the silver screen saw recently in Skyfall. The law is intended to crack down on gun accidents, thefts, and suicides, but its critics — including a major gun violence prevention group — worry that it might make the problem worse.

Introduced by Rep. John Tierney (D-MA), the Personalized Handgun Safety Act of 2013 would require that all guns manufactured for sale or put up for sale, would have to have some kind of “personalized” technology that limited the ability to fire the gun to its owner and any individuals authorized. Since this technology is not widespread now, these requirements would kick in within two years for manufacturers and three years for sellers. Affected sellers include both federally licensed retailers and private sellers.

The bill is technologically feasible. Several possible ways of building “smart” guns include firearms that only activate when you press a special ring into it, guns that won’t work until you enter a key code, guns that only fire if they detect a specific radio signal, and guns that recognize biometric info like fingerprints. Some smart guns are already available abroad, including one Irish design that automatically disables guns when they’re brought into properly equipped schools.

There’s some reason to believe these measures could be effective in reducing gun violence. Roughly ten to fifteen percent of crime guns are acquired by theft; an average of 232,400 guns are stolen per year. Presumably, a smart gun couldn’t be used by a thief.

So long as parents don’t give their kids biometric “permission” or leave their gun key lying around, then kids also wouldn’t be able to fire the gun. Adam Lanza couldn’t have brought his mother’s guns to Newtown absent her say-so were they smart guns. Some of the 900 kids who died in gun accidents or suicides last year may not have lost their lives.

“Even if smart guns disarmed only our dumbest, laziest criminals and other unauthorized borrowers like kids,” wrote Dave Guston and Ed Finn, two professors at Arizona State University, “the savings in lives could be tremendous.”
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For nearly two decades U.S. law enforcement agencies have used counter-terrorism devices known as “stingrays” after the brand name of one variant or ISMI (international mobile subscriber identity)-catchers to track locations in domestic investigations, but information about the devices has been kept carefully under wraps from the public and sometimes even from judges authorizing its deployment. Last week an Arizona judge ruled that a tracking warrant used to deploy the device against Daniel David Rigmaiden, who is accused of collecting millions of dollars in rebates by submitting fraudulent tax returns, was valid despite the fact that the FBI failed to disclose they would be using a stingray or explain how the devices functioned in that warrant.

Much of what is known about their current use in the U.S. comes from a treasure trove of heavily redacted documents being dripped out month by month thanks to an Electronic Privacy Information Center (EPIC) Freedom of Information Act (FOIA) lawsuit and a handful of public cases like Rigmaiden that have been released publicly. Speaking at a Yale Information Society Project (ISP) on biometrics and location tracking earlier this year, EPIC Appellate Advocacy Counsel Alan Butler noted:

“The biggest problem I see with stingrays is the secrecy aspect — The fact that we don’t know how they are used, how exactly they work, what different techniques are available [...] The accountability measures that would be in place for other warranted, more standard surveillance methods are really nonexistent here.”

One thing we do know, according to statement at the same conference from the American Civil Liberty Union’s (ACLU) Chris Soghoian, is that stingrays work by essentially exploiting a security vulnerability in cell service technology: Phones are constantly searching for the nearest signal so they know what tower to connect to when a call comes in, and phones will automatically connect to any tower identifying itself as having the strongest signal strength from your carrier.

The device sends out a signal pretending to be a nearby cell tower with the strongest signal, tricking phones into connecting and allowing the operator to harvest identifying information about devices in the form of the unique ID string of numbers associated with the device known as ISMI and in some variants even communications content, although U.S. law enforcement generally denies using them for the latter need. Whenever a phone is powered on, you can measure the strength of the phone responding to this signal and triangulate a location. This graphic adapted from one in Jennifer Valentino-Devries’ excellent Wall Street Journal coverage of the Rigmaiden case in 2011 shows how it works:

Due to the nature of the devices, they gather up all information within a certain signal range including information about non-target devices — meaning innocent bystanders are having their data sucked up as well. In court documents associated with the Rigmaiden case the FBI requested permission to “expunge” all data obtained in the process, but how much data operators generally have access to during the surveillance process or if that is the standard practice remains unclear leading to a number of questions about whether or not the Fourth Amendment rights of the general public are being compromised. Soghoian noted as much at the Yale ISP conference, saying “No matter how the stingray is used — to identify, locate or intercept — they always send signals through the walls of homes [...] The signals always penetrate a space protected by the Fourth Amendment.”

There are a variety of situations this could be used unrelated to criminal investigations, like aiding search and rescue teams, but when it’s used by law enforcement it’s usually because the phone company can’t find the phone for some reason (such as lacking a GPS chip), to identify what phones are being used by a suspect in a burner type situation (think the Wire), or when the phone company refuses to help with an investigation. But the legal framework for deployment in the United States is murky.

In the Rigmaiden case a warrant was sought because they were after the signal on a mobile wireless card believed to be within his residence where he might have a reasonable expectation of privacy. But FBI and Department of Justice officials have claimed investigators’ stingrays should be treated like “pen registers.” Pen registers are a category of tools that gather information on outgoing calls — normally, the numbers dialed on a particular phone — but don’t receive the content of the communications and do not require a warrant to deploy. Instead, they are allowed under the Electronic Privacy Communications Act of 1986 (ECPA) with a court order that only requires investigators to believe information gathered as a result of the order is likely to assist an ongoing investigation, a lesser standard than probable cause.

However, some judges have found that location information is more intrusive type of surveillance than call logs, and across the field courts appear to be applying different standards — with the prosecution in Rigmaiden saying that “decisions are made on a case-by-case basis” by magistrate and district judges. In US v. Jones, the Supreme Court ruled a GPS tracking device being placed on a suspect’s car constituted a search, but did not rule on if the search was warranted or constitutional.

Due to the lack of disclosure used by investigators pursuing stingray deployment, it is also unclear how often the devices are being used by law enforcement although evidence suggests they are being deployed in at least a handful of states. Reporting from the LA Times uncovered 21 uses of the devices by the LAPD in a four month period in 2012 “apparently without the courts’ knowledge that the technology probes the lives of non-suspects who happen to be in the same neighborhood.”

The lack of clarity around almost every aspect of stingray tech and its use by law enforcement did not happen by accident: The FBI delayed releasing the documents now being released thanks to EPIC’s FOIA lawsuit, only acquiescing when being ordered by a federal judge “to produce all records, except those subject to classification review, by August 1, 2013,” and among the documents already released in that inquiry was a nondisclosure agreement preventing FBI staff from discussing the technology.