• An update on previous 2015 blog topics

    Several of the posts I’ve written here each week had an immediacy to that moment, or were on subjects that had no expiration date. Some subjects I’ve discussed, however, have had new developments since I first wrote about them. So, here are updates on a few things I’ve covered, a small refresher course on what’s happening in the Region and beyond:

    • Gary/Chicago International Airport Expansion: The airport’s expanded runway is now open! Meanwhile, we haven’t heard much new about the plans for that third Chicago airport that Illinois has been planning to build for decades…
    • South Shore Expansion: The proposed expansion of the rail line passed a big hurdle by getting funding approved in the state budget. After years of seeming stagnant, it looks like it’s going to happen.
    • Illiana Expressway: The proposed toll road had the support of our Governor Mike Pence and former Illinois Governor Pat Quinn. But then current Illinois Governor Bruce Rauner beat him in the election last year, and, after keeping mostly mum on the subject during his campaign, rescinded his state’s support. It looks dead for the time being. But while I was wrong on this, my New Year’s predictions about the Airport and South Shore are looking pretty good right now.
    • Indiana Toll Road: The Australian firm IFM ended up buying the Indiana Toll Road, keeping it in private hands. We’ll see if they have better luck than the last owner.
    • Elonis v. United States: The Supreme Court case over whether one Anthony Elonis’ violent Facebook posts were legitimate threats or (as he contended) constitutionally-protected lyrics ended with the Court ruling 7-2 in favor of Elonis, overturning his conviction for making criminal threats. This is major because it’s one of the first cases to directly deal with free speech over social media, but it surely won’t be the last.
    • Glenda Ritz: Indiana’s beleaguered Superintendent of Public Instruction did, unfortunately, have her powers removed by the state legislature. However, since then, Governor Pence’s popularity has tanked, making him looking quite vulnerable in the 2016 election. And who’s among those competing for the Democratic nomination to take him on? None other than Glenda Ritz.
  • Copyrights Win Out Over Aereo

    Like the case I discussed last week, the Supreme Court case American Broadcasting Companies, Inc. v. Aereo, Inc. somewhat went under the radar. However, this one is notable in its implications for new technologies and copyright law.

    A little background on the case: Aereo, founded in 2012, is a subscription service that provided a device to pick up broadcast television signals. Subscribers could watch these broadcasts on any digital device and record them in a personal DVR. Aereo contended this was simply the equivalent to picking up broadcast signals like a TV antenna, but broadcasters argued it was rebroadcasting their content, and therefore copyright infringement.

    Aereo survived a few lower court battles, but the Supreme Court ruled 6-3 that the company’s business model was, in fact, infringing on broadcasters’ copyrights. Several tech and political writers decried the ruling. One article even described it as equivalent to if the Supreme Court had ruled against the constitutionality of the VCR in 1984.

    I don’t think the Court made a bad decision.

    Let’s examine the comparison to that landmark VCR case (Sony Corp. of America v. Universal City Studios, Inc.). In That decision, the Court ruled that recording programs for private home use was fair use. To record any program to sell or screen publicly is still very much illegal (remember those FBI warnings on DVDs and VHS tapes before them?).

    Aereo wasn’t simply picking up the broadcasts, but in effect rebroadcasting them for a price, which, without permission, is clearly copyright infringement. While it might sound lame to side with big corporate broadcasters, I understand that their livelihood depends on creating programming for monetary gain.

    The effect of this decision on the tech world, I think, is that it might make it more difficult for small startup services to get off the ground, as the fees to rebroadcast programming are inhibitively expensive. As for consumers, they’re in no danger of missing out on their favorite shows. There are plenty of other streaming service providers like Netflix or Hulu. Some networks even broadcast their shows for free on their websites. And those are just the legal options available on the web.

     

  • Despite SCOTUS ruling, bell might be tolling for death penalty

    The Supreme Court recently finished an eventful term, upholding the Affordable Care Act and legalizing same-sex marriage nationwide. But one of the lesser-publicized cases is likelier to ignite much more debate in the years to come.

    One might recall the case of Oklahoma death row inmate Clayton Lockett, whose execution by lethal injection last year was stopped when the drugs he was administered (an experimental new mix of substances) failed to render him unconscious. He allegedly was in great pain for close to an hour before succumbing to a heart attack from the ordeal.

    In the case Glossip v. Gross, a group of death row inmates argued that this method constitutes cruel and unusual punishment (which is banned by the Eight Amendment) because the administered sedative midazolam fails to render the condemned unconscious, causing them to feel tortuous pain throughout their execution. The Court disagreed, however, ruling 5-4 that they couldn’t prove the drug’s use was cruel and unusual.

    Well, it certainly sounds like cruel and unusual punishment in this case. But a few of the dissenting justices went even further, suggesting that capital punishment itself violates the Eighth Amendment.

    At the legislative level, the death penalty is withering away, but slowly. It's been outlawed in seven states within the last decade, and not strictly along partisan or ideological lines. The most recent state was Republican-leaning Nebraska, whose state legislature voted to outlaw capital punishment and voted to override their Governor’s veto of the measure.

    In other states, both red and blue, it’s still business as usual. Right here in Indiana, a bill making murder by decapitation or attempted decapitation grounds for the death penalty was passed almost unanimously by the state legislature and became law at the start of the month.

    So it’s very significant that the school of thought which considers capital punishment a violation of criminals' constitutional rights made it into the legal conversation of the highest court. Even though it lost before Court this time, it’s probably not going away. If it gains momentum in jurisprudence, we might one day mark this as the beginning of the end of capital punishment in the U.S.

    Should that happen, it would be a good day for human rights. More than any other factor in the argument against capital punishment—its inconclusive effect as a deterrent, the cost of executions, the fact that innocents can sometimes be executed—it all comes down to the fact that no government, federal or state-level, should have the right to dictate who lives or dies.

    Lockett was convicted of some horrible things, no question. It’s admittedly hard to sympathize with him. Or Dzhokhar Tsarnaev, or Timothy McVeigh, or anyone who would mutilate another human being as described by Indiana’s new law. But for comparison, if we truly value free speech, we must also defend and tolerate speech with which we disagree or find offensive or vile. Similarly, if the right to live is truly inalienable, then it must also apply to the worst among us.

  • Fourth Amendment Goes Digital

    The Supreme Court’s Hobby Lobby decision may have garnered the most press coverage and debate of its recent cases. But before that, the Court handed down another very important decision on privacy rights.

    In Riley v. California, the Court voted 9-0 that police must have a warrant to search a person’s mobile phone. This is significant for two reasons.

    The first is that this could be a turning point in the legal battle over digital privacy rights. Most legal challenges to surveillance and data collection have so far been fruitless. Just this March, Justice Antonin Scalia suggested that the controversial NSA programs don’t violate the Fourth Amendment against unreasonable search and seizure. So a ruling upholding privacy rights, and a unanimous ruling at that, is something of a surprise.

    The second reason this is a big deal is more obvious: it’s a victory for Fourth Amendment rights. And it comes at a very good time.

    This summer Chicago is installing devices in certain areas that will track, among other things, the number of people in the area by scanning their mobile phones for a signal. Proponents of the project, dubbed the “Array of Things,” insist that these won’t actually mine data from phones, and the devices’ findings will also be publicly available for anyone to see, giving the whole thing a certain aura of transparency. But there’s no way around the perception that the city could use it to spy on residents, whether true or not.

    Or consider the Stingray, used by several law enforcement agencies to track cell phones (according to the ACLU, both Illinois and Indiana forces use them). Here’s a very good and detailed overview of how it works, but in short, it can track your location and data from your phone. Dubious, but apparently legal.

    Stingrays have been in use for nearly a decade, before Array of Things, before Edward Snowden and his NSA revelations. However, the technology does not give police the ability to read texts or listen in on calls. Now, in addition to the technological limit, the Riley ruling draws a legal line protecting mobile owners from search and seizure without a warrant.

    The case is likely only the first of many on issues related to digital privacy, but the importance of what it does and what it may signify should not be understated.

  • Of voter selfies and political optics

    In July, taking and/or sharing photos of one’s ballot in the voting booth became illegal in Indiana. Last week, the law went before a federal court, with the ACLU of Indiana arguing it’s a violation of freedom of speech.

    The state’s argument for the law is that it’s ensuring the complete privacy and legitimacy of the ballot. Sharing one’s ballot can open the door to voter coercion and intimidation, they contend, because the intimidating party can demand a photo as proof for whom a person voted.

    I definitely agree it’s important that every voter is guaranteed the privacy of the voting booth. However, if they choose to waive that privacy of their own accord, such as by taking a selfie with their ballot, I think they should be allowed. As for the state’s voter intimidation hypothesisl, I think voter ID laws like those in Indiana and other states—laws which have created several obstacles to voting in the name of preventing voter fraud, even though statistically the problem is nearly nonexistent—is a bigger threat to the inalienable right to vote.

    But beyond debating the law’s merits, this is an especially egregious case of bad optics. I mean, didn’t the state of Indiana stop and think that this law would look a little suspicious, given that Indiana already has a voter ID law, the state had the lowest voter turnout in the country in last year’s midterms, and the controversial polling consolidation of the most Democrat-leaning part of the state? Even if it’s just a coincidence, and the majority-Republican state legislature’s intent with this law was to protect voters, it still sort of looks to the layperson like another law tightening rules and restrictions on voting.

    Optics is important in this age of immediate information and short attention spans. Even if a subject or issue is more complicated, by the time one gets around to adequately explaining it, onlookers have probably moved on to something else, so it’s more important than ever to strike the correct note right off the bat.

    Then again, given how blindsided the state seemed by the universal negativity to the RFRA earlier this year, even with LGBT acceptance nationwide at an all-time high and only going up, maybe positive optics is too much to ask.

  • The downside of police body cams

    I’m not a legal expert by any means. I also know the subject I’m about to discuss is a hornet’s nest in every sense of the metaphor. Nevertheless, I think it’s too important not to talk about.

    The subject is the emerging trend and debate about police wearing body cameras to film their patrols and arrests. Hammond’s police force is now equipped with cameras, and a few other forces in the Region might follow suit.

    Body cams are ostensibly about policing the police, making sure that they respect suspects’ rights and don’t break the law themselves. You might have heard increased calls for their adoption recently in the wake of highly publicized killings of (mostly minority) suspects by police officers.

    I’m not sure it will make a difference about that. A few of those controversial deaths have been on video recorded by bystanders. And even when the video evidence was pretty clear, several officers involved didn’t faced any legal repercussions. Nor did it ever seem to affect anyone’s opinion, so thoroughly were they entrenched in their view of the cops’ actions.

    That’s troubling enough, but what’s really scary is that while the consensus is body cams will be a win for rights of the accused, it's not hard to picture it doing the opposite. We already live in the age when we're constantly recorded and nearly everything we do leaves a digital trail of some sort. Adding yet another recording apparatus, even one with the best of intentions, only lessens our privacy and grows the surveillance state even more.

    Moreover, I can imagine instances where body cams will be a detriment to the accused. Even if they're used properly and not abused, recorded videos could still bring undue incrimination upon suspects. The Miranda rights recited by every cop when a person is arrested explicitly state that what they say can be used against them in court. Well, what about video of their arrest? It's not outside the realm of possibility that video could make them look bad and skew jurors, precluding a fair trial.

    I hope I’m worrying over nothing, and that if body cams do become more widespread, they do good things for the relationship between the police and the people they serve. But just in case, I hope as they start to catch on, they’re accompanied by regulations and wide-reaching legislation or court cases making sure they do only that.