Category Archives: Civil Liberties

Can Governors Prevent Syrian Refugees From Entering Their States? (Updated)

I am confident that in a just world, the answer should be “no”. But we don’t always live in a just world. I wish I had time to write a careful analysis, but I don’t, so here are some first thoughts. Corrections and amplifications welcomed.

UPDATE: This is why I should never blog from memory, at least pre-coffee. This morning I conflated the right to move about within a state — not a clearly established federal right, cf. the aftermath of Katrina — with the right to move about between states, which is quite well established: Sáenz v. Roe, 526 U.S. 489 (1999) held that a classification (here, lesser welfare benefits for new residents in their first year) that has the effect of imposing penalty on the right to travel violates the Equal Protection Clause absent a compelling governmental interest. What’s more the Court defined the right to travel interstate as having three parts: the right to enter and leave another State; the right to be treated as a welcome visitor while temporarily present in another State; and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.

That ought to settle it.

Three areas of law seem relevant to the question.

First, immigration law, which is a matter of only federal concern. States do not in any way get to control movement across the international border. So if the feds want to let refugees into the US, they are admitted to the US. Even at airports in states that say they don’t want refugees.

Second, anti-discrimination law. Here, we find more of a patchwork. Rather than a single federal statute prohibiting national origin discrimination, we have a collection of piecemeal legislation. It might be that none of the usual anti-discrimination laws, which are aimed at things like housing and employment, speak to the issue of free movement between states.

Third, and not least, there is the Equal Protection clause of the Constitution, backed up by § 1983 of the federal code (§ 1983 prohibits the deprivation of constitutional and federal statutory rights by persons acting under “color of law”). As I understand it, neither the Equal Protection Clause nor any other part of the Constitution has been definitively held by the courts to create a right of free movement between states. [Note the update above – should be “within” not “between”.] Thus, at least at the Supreme Court level, it is technically an open question whether a state might close its borders to everyone. (The question arose after authorities closed a bridge preventing escape from areas of New Orleans hit by Hurricane Katrina. I have some doubts that a state could seal its border legally other than briefly in response to an emergency, but again, if memory serves the Supreme Court hasn’t prohibited that in so many words.) What is not at doubt, however, is that if a state were to attempt some sort of border control, it must do so in a manner that does not discriminate invidiously. (If they are searching for a White Toyota, it is not invidious to only stop White Toyotas.) The state may not treat its own inhabitants better than those of other states. And it may not discriminate on grounds of race or any other suspect class. I would presume national origin is such a class; whether immigration status qualifies (if only a proxy for national origin) is a little trickier, but I’d hope so.

Somewhat related: Important Freedom to Travel Decision From the DC Circuit (7/11/09); Plenty of Blame to Go Round (IV) (9/11/05)

Posted in Civil Liberties, Law: Constitutional Law, Law: Right to Travel | Leave a comment

From Anonymity to Identification

The inaugural issue of the Journal of Self-Regulation and Regulation is out, and it includes an article of mine, From Anonymity to Identification. The article is adapted from a talk I gave in Heidelberg last December. I’m in good company: other authors in this issue are Markus Beckedahl, Jeanette Hofmann, Marianne Kneuer, Milton L. Mueller, Ekkehart Reimer, William Binney, Kai Cornelius, Myriam Dunn Cavelt, Sebastian Harnisch and Wolf J. Schünemann.

The full text of this open-access journal is available online, including a .pdf of From Anonymity to Identification. As Larry Solum likes to say, download it while it’s hot.

Here’s the abstract for “From Anonymity to Identification”:

This article examines whether anonymity online has a future. In the early days of the Internet, strong cryptography, anonymous remailers, and a relative lack of surveillance created an environment conducive to anonymous communication. Today, the outlook for online anonymity is poor. Several forces combine against it: ideologies that hold that anonymity is dangerous, or that identifying evil-doers is more important than ensuring a safe mechanism for unpopular speech; the profitability of identification in commerce; government surveillance; the influence of intellectual property interests and in requiring hardware and other tools that enforce identification; and the law at both national and supranational levels. As a result of these forces, online anonymity is now much more difficult than previously, and looks to become less and less possible. Nevertheless, the ability to speak truly freely remains an important ‘safety valve’ technology for the oppressed, for dissidents, and for whistle-blowers. The article argues that as data collection online merges with data collection offline, the ability to speak anonymously online will only become more valuable. Technical changes will be required if online anonymity is to remain possible. Whether these changes are possible depends on whether the public comes to appreciate and value the option of anonymous speech while it is still possible to engineer mechanisms to permit it.

Posted in Law: Internet Law, Surveillance, Writings | Leave a comment


“If you think privacy is unimportant for you because you have nothing to hide, you might as well say free speech is unimportant for you because you have nothing useful to say.” (source)

I have seen this attributed to Edward Snowden but I’ve also seen it said that his original was “Arguing that you don’t care about the right to privacy because you have nothing to hide is no different than saying you don’t care about free speech because you have nothing to say.” (Snowden in this reddit interview.) Either way it’s good.

Posted in Civil Liberties, Law: Privacy | 1 Comment

Best Use Case for Apple Watch?

My phone was confiscated, but it was being held nearby. I was wearing an Apple Watch for product testing, and was able to send Lian a text message over the watch (the whole time we were held I was not allowed a phone call or any contact otherwise). I somehow doubt that this particular use case is one that Apple will promote, but it was the most compelling one I’ve found so far…

What happens after you’re arrested at a protest in New York. — Medium

Posted in Civil Liberties, Sufficiently Advanced Technology | 2 Comments

Must-See TV

John Oliver interviews Edward Snowden.

Warning: Not utterly safe for all workspaces….

Posted in Completely Different, Surveillance | Leave a comment


EFF and other fine groups announce DETEKT, a spyware detection tool. It’s a joint project with Amnesty International, Digitale Gesellschaft, and Privacy International. Read the disclaimers and instructions carefully.

Note also that they seem to be on a very short release cycle: I downloaded version 1.1 at work yesterday (nothing detected), and just downloaded version 1.3 at home today.

Disclosure: I’m a proud member of the Electronic Frontier Foundation Advisory Board.

Posted in Software, Surveillance | Leave a comment

IAB’s Major Statement on Internet Privacy

Looks like the IAB is being all Habermasian again:

IAB Statement on Internet Confidentiality

In 1996, the IAB and IESG recognized that the growth of the Internet depended on users having confidence that the network would protect their private information. RFC 1984 documented this need. Since that time, we have seen evidence that the capabilities and activities of attackers are greater and more pervasive than previously known. The IAB now believes it is important for protocol designers, developers, and operators to make encryption the norm for Internet traffic. Encryption should be authenticated where possible, but even protocols providing confidentiality without authentication are useful in the face of pervasive surveillance as described in RFC 7258.

Newly designed protocols should prefer encryption to cleartext operation. There may be exceptions to this default, but it is important to recognize that protocols do not operate in isolation. Information leaked by one protocol can be made part of a more substantial body of information by cross-correlation of traffic observation. There are protocols which may as a result require encryption on the Internet even when it would not be a requirement for that protocol operating in isolation.

We recommend that encryption be deployed throughout the protocol stack since there is not a single place within the stack where all kinds of communication can be protected.

The IAB urges protocol designers to design for confidential operation by default. We strongly encourage developers to include encryption in their implementations, and to make them encrypted by default. We similarly encourage network and service operators to deploy encryption where it is not yet deployed, and we urge firewall policy administrators to permit encrypted traffic.

We believe that each of these changes will help restore the trust users must have in the Internet. We acknowledge that this will take time and trouble, though we believe recent successes in content delivery networks, messaging, and Internet application deployments demonstrate the feasibility of this migration. We also acknowledge that many network operations activities today, from traffic management and intrusion detection to spam prevention and policy enforcement, assume access to cleartext payload. For many of these activities there are no solutions yet, but the IAB will work with those affected to foster development of new approaches for these activities which allow us to move to an Internet where traffic is confidential by default.

Posted in Internet, Surveillance | Leave a comment