Trump’s judicial criticism is dangerously reckless

Artists-impressions-of-Lady-Justice, (statue on the Old Bailey, London)
This is Donald Trump’s tweet from Saturday, mocking a federal judge who halted his travel ban for refugees:

One of my biggest fears about President Trump was that he would try to undermine the judiciary if it pushed back on his orders. Our federal judges are, across the board, extremely high caliber. To insult this judge, who was appointed by President Bush, as a “so-called judge” is needlessly disrespectful and dangerous. To those who support Trump, please don’t follow him down this misguided path of disparaging our federal judiciary.

To be clear, I often disagree with judges’ decisions. But not with their authority or integrity based solely on a ruling I disagree with. Will Baude pointed this out over at Volokh Conspiracy:

There have been occasions when officials questioned not just the courts’ decisions but also their authority — Attorney General Bates’s discussion of judicial authority during the Civil War may be the most important example — but this is rarer. And while the difference between the two is sometimes fuzzy, and may seem minor, it is deadly serious.

If the court has authority, then the parties are legally required to follow its judgment: even if it is wrong; even if it is very wrong; even if the President does not like it. But if the court does not have authority, then perhaps it can be defied. So the charge of a lack of authority is a much more serious one. It is the possible set-up to a decision to defy the courts — a decision that is unconstitutional if the court does indeed have authority to decide the case.

A friend compared this to President Obama’s 2010 State of the Union, in which he criticized the Citizens United decision in front of Supreme Court Justices in attendance. That is an interesting comparison, and I think it underscores why Trump’s tweet is so reckless.

I looked back at Obama’s remarks. He didn’t attack the legitimacy of the institution (i.e., “so-called” judge). He made a cogent policy argument for why he thought Congress should act in the wake of the Court’s decision. He also was careful to preface his comments with “With all due deference to separation of powers.”

Trump’s remarks are kneejerk and crass, and appear aimed to sow the seeds among his supporters that judges who oppose him are the enemy.

Here’s Obama’s full remarks, for comparison:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections. I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people. And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.

You won’t get a fight from me on the fact that there are very good arguments to be made that executive authority is run amok. But until now, when challenged in court, the executive has allowed the system to follow its normal course, without ad hominem attacks on the judges involved. I think Democrats would be smart to get Gorsuch to condemn this stuff and stand up for the judicial system during his confirmation hearing. Eric Posner suggested something similar in the New York Times:

[Gorsuch] is the only judge in whom the president has publicly expressed confidence — by nominating him to a judicial position. A rebuke from Judge Gorsuch would be a stinging blow. It would, or at least might, protect the judiciary from further attacks from Mr. Trump for years to come.

Posner pulled out a quote from one of Judge Gorsuch’s opinions, In Re Renewable Energy Development Corp., 792 F. 3d 1274, 1277-78 (10th Cir. 2015) (citations omitted), that is too apt not to share:

[T]he framers lived in an age when judges had to curry favor with the crown in order to secure their tenure and salary and their decisions not infrequently followed their interests. Indeed,  the framers cited this problem as among the leading reasons for their declaration of independence. And later they crafted Article III as the cure for their complaint, promising there that the federal government will never be allowed to take the people’s lives, liberties, or property without a decisionmaker insulated from the pressures other branches may try to bring to bear.  To this day, one of the surest proofs any nation enjoys an independent judiciary must be that the government can and does lose in litigation before its “own” courts like anyone else.

The data doesn’t back up the refugee ban

Leo Gestel Vluchtende Belgen 1914
I’ve been obsessively following the back and forth about the refugee ban. I have plenty of personal reasons why I’m opposed to the ban. But I’ve also been seeking out solid research on the topic. I think it’s worthwhile to share some of the best I’ve found.

Cato Institute’s Terrorism and Immigration: A Risk Analysis 

First, I explored evidence on the real risk refugees pose. A Cato Institute study found that an American’s chance of being killed by a refugee is  1 in 3.64 billion. That study concludes the following:

Foreign-born terrorism on U.S. soil is a low-probability event that imposes high costs on its victims despite relatively small risks and low costs on Americans as a whole. From 1975 through 2015, the average chance of dying in an attack by a foreign-born terrorist on U.S. soil was 1 in 3,609,709 a year. For 30 of those 41 years, no Americans were killed on U.S. soil in terrorist attacks caused by foreigners or immigrants. Foreign-born terrorism is a hazard to American life, liberty, and private property, but it is manageable given the huge economic benefits of immigration and the small costs of terrorism. The United States government should continue to devote resources to screening immigrants and foreigners for terrorism or other threats, but large policy changes like an immigration or tourist moratorium would impose far greater costs than benefits.

Pew Research Forum Refugee Stats

Pew Research also put out a few useful fact briefings. The number of total refugees from all countries last year was pretty low, capped at 110,000 per year under Obama (and that was the highest number since 1994). And the screening process took 18 to 24 months. Here are Pew’s other points:

1. Historically, the total number of refugees coming to the U.S. has fluctuated along with global events and U.S. priorities.

2. The U.S. admitted 84,995 refugees in the fiscal year ending in September 2016, the most in any year during the Obama administration.

3. In fiscal 2016, the highest number of refugees from any nation came from the Democratic Republic of Congo.

4. Nearly 39,000 Muslim refugees entered the U.S. in fiscal 2016, the highest number on record …

5. California, Texas and New York resettled nearly a quarter of all refugees in fiscal 2016, together taking 20,738 refugees.

6. The U.S. public has seldom approved of accepting large numbers of refugees.

The numbers in the U.S. pale in comparison to the 1.3 million refugees who flooded Europe in 2015 (which Trump supporters are pointing to as a reason for his order). Turkey has more than 2.5 million Syrian refugees. Lebanon has 1 million. In mid-2015, the United States ranked 75th for refugees per 1,000 inhabitants.  Trump has now lowered the number per year to just 50,000 for all refugees (that’s on top of the ban).

Charles Kurzman’s and David Schanzer’s Risk Assessment

Also, there seems to be many more pressing risks of violence in the United States. According to research from Charles Kurzman and David Schanzer, since 9/11, white-supremacists and right-wing extremists actually committed more domestic terrorist acts than radicalized Muslims, though attacks by radical Muslims killed slightly more people. Yet no one is proposing we detain white supremacists to protect the country.  And no attacks have occurred from refugees coming from the countries Trump banned. The San Bernardino shooter was born in Chicago, to Pakistani parents. The Pulse Nightclub shooter was born in New York, to Afghan parentsThe Boston Bomber was born in Chechnya.

The data doesn’t back up this ban.

Trump’s cruel and arbitrary refugee order

20151030 Syrians and Iraq refugees arrive at Skala Sykamias Lesvos Greece 2

​This executive order is heartbreaking.

When I lived in Atlanta about 7 years ago, I mentored two refugee brothers from Iran through the International Rescue Committee. They were members of a persecuted minority. They taught me far more than I taught them. They were so generous, kind, and hardworking. They invited me in their home. Fed me. Shared their lives and culture. The elder brother worked long hours at Target, stacking shelves. He looked out for his younger brother, who was still in high school. Each weekend, he cooked a big batch of a meat and rice dish (mostly rice), and he always offered me some. Their parents hadn’t come with them. But it was worth it for them to escape a society where they faced little future.

This is a cruel and arbitrary decision.

The order has refugees detained at airports, including “an Iranian scientist headed to a lab in Boston, an Iraqi who had worked as an interpreter for the United States Army, and a Syrian refugee family headed to a new life in Ohio.”

Worse yet, there’s no evidence this ban is needed, as reported in Christianity Today:

There is a 1 in 3.64 billion per year chance that you will be killed by a refugee in a given year. If those odds concern you, please do not get in a bathtub, car, or even go outside. And, for contrast, there were 762 tragic murders in Chicago alone last year comparted to 0 people who were killed last year (or ever since the mid-70s) by a refugee-perpetrated terrorist attack.

And it not only hurts these refugees, it sends an awful message:

If America bans refugees, it makes a statement to the world that we don’t want to make. It is the picture of someone who sits, arms crossed and turned away, with a raised eyebrow and a ready attack on the helpless, the homeless, the broken.

I hope immigration advocates find a way for the courts to step in to stop this vile policy.

Technology and the Guilty Mind: When Do Technology Providers Become Criminal Accomplices?

This is new story art for my article examining when the proprietors of technology with criminal uses aid and abet their users’ crimes. The aim is to help courts, prosecutors, and technologists draw the line between joining a criminal enterprise and merely providing technology with criminal uses. The article explains the legal doctrines underlying this type of liability and provides examples of at-risk technologies, including spam software, file-sharing services, and anonymity networks like Tor.

FBI’s Network Investigative Technique

The term “network investigative technique,” or NIT, has been around for awhile as a catch-all term for the FBI’s digital investigation of non-public information from suspect’s computers.  An FBI affiliate worryingly admitted to Forbes that the government uses a “human wall” to screen collected data to try to protect privacy rights.

This technique is making a big splash recently through “Operation Pacifier.”  Through that operation, the FBI took control of a child porn site operating on Tor and allowed it to run for 13 days. The FBI modified the website’s code so that malware would download to users’ computers and sent their IP addresses, MAC addresses, and active username to the FBI.

A single magistrate judge in Virginia authorized the warrant, yet the operation was global in scope and uncovered approximately 1300 IP addresses. See Joseph Cox, The FBI’s ‘Unprecedented’ Hacking Campaign Targeted Over a Thousand Computers, Motherboard, Jan. 5, 2016.

Most of the warrant has been made public. See United States v. Lorente, No. 15-274, ECF Doc. No. 48-1 (W.D. Wash. Mar. 7, 2016). Defendants have filed motions to dismiss and to suppress, but so far, courts in Wisconsin and Washington have rejected those motions.

New Article on Technology Providers and Criminal Accomplice Liability

My article on criminal accomplice liability for technology providers was published this month in the Journal of Criminal Law and Criminology. Please check it out by downloading it on the journal’s website.

The abstract is as follows:

The creators of today’s most successful technologies share an important willingness to push the envelope—a drive that propels digital industry forward. This same drive, however, can lead some technology purveyors to push the limits of legality or even become scofflaws in their pursuit of innovation or (more often) profit. The United States must figure out how to harness the important creative force at the heart of the hacker ethic while still deterring destructive criminal wrongdoers. Because it is often courts that must answer this question, it is essential to examine the legal doctrines prosecutors use to sweep up technology providers.

This Article focuses on one type of criminal liability—accomplice liability—that can act as a dragnet on providers of technology that lends itself to criminal use. In particular, a violation of the federal statute for aiding and abetting, 18 U.S.C. § 2, can be implied in every charge for a federal substantive offense, and there is a potentially troubling strain of cases holding that knowing assistance can be enough to deem someone an aider and abettor, even without stronger evidence of a shared criminal purpose.

This Article examines when the proprietors of technology with criminal uses aid and abet their users’ crimes. The aim is to help courts, prosecutors, and technologists draw the line between joining a criminal enterprise and merely providing technology with criminal uses. This Article explains the legal doctrines underlying this type of liability and provides examples of at-risk technologies, including spam software, file-sharing services, and anonymity networks like Tor. Ultimately, this Article concludes that the web of superficially conflicting rulings on the required mental state for aiding and abetting are best harmonized—and future rulings on liability for new technologies are best predicted—by looking to the existence of “substantial unoffending uses” for the product or service provided by the accused technologist.

Senators Booker and Menendez Call for Federal Action on Zombie Foreclosures

New Jersey Senators Bob Menendez and Cory Booker wrote a letter last week to leading federal agencies on housing and finance calling for them to take action to address the problem of “zombie” or “walk-away” foreclosures, citing a 29 % increase in such foreclosures in their states in the past year. The senators explained the problem as follows:

A zombie foreclosure is characterized by homes where banks have initiated the foreclosure process, and homeowners have made the painstakingly difficult decision to leave their home, and yet the bank then chooses to walk away from the foreclosure because the value of the property is not worth the cost of maintaining the home and completing the foreclosure process.  Often with no notice to the homeowner and based on a profit-driven determination, the bank decides to turn its back on the homeowner, on the property, and on the community at large.

They added what sounds like a call for more vacant property registration (VPR) requirements:

When a bank or mortgage servicer takes stock of their options and determines that the cost of maintenance and the duration of the foreclosure process for a particular home outweighs any potential return on the property, the servicer should be required to take steps to notify the homeowner, contact local authorities, and make arrangements for alternative disposition of the property.

I’ve argued before that the federal government should step in on vacant property registration issues. Maintaining an effective database of these properties is typically too costly for local governments, and the private companies that offer assistance often have troubling ties to the mortgage industry, which is generally opposed to registration requirements.

I proposed the following initiative in a 2010 paper on this issue:

While the MERS Initiative proved the benefit of a national electronic platform for VPR, a federally generated system would provide the same benefit while minimizing the dangers associated with the industry-run MERS. The federal government should develop a standard internet-based platform for registering and tracking vacant properties and then maintain a webspace where local governments can use the platform to create individualized webpages for their VPR officials to use while registering and tracking properties within their jurisdiction. The federal government would not keep a nationally available list of vacant properties, but merely establish a standard platform local governments can use to register properties within their jurisdiction. This type of standardized system would eliminate the mortgage industry’s objection to compliance with varied local procedures. This type of system would also allow local governments to retain control of the contents and enforcement mechanisms of VPR ordinances, since local governments have a better understanding of local markets and conditions. Additionally, a federal system would make it easier for the federal government to establish special programs utilizing the database. For example, Joseph Schilling suggests that the federal government “establish special phone lines between local government officials and lending institutions and perhaps set some standards about call-backs within twenty-four to forty-eight hours.” Of course, such a system would require political will since the public would view it as a federal endorsement of VPR. It would also require initial funding to establish the system and continuing funding to monitor that the system is working properly.

It looks like the first steps of the “political will” part is coming around. Moreover, the technical side of things, the ability to track and present this type of data, have greatly advanced since I wrote that article, as seen in the success of open data initiatives nationwide. In short, perhaps the time is ripe for this type of reform.