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France is Different, Really

This post illustrates that even countries with legal traditions very different from that of the United States can teach Americans something about values. In France, criminal investigations follow the “j’accuse” model, under the Code pénal, where a single judge — known as the Juge d’Instruction — controls investigation and charging of suspects, and under which a defendant’s silence can be held against him and the burden of proof is far less than the “beyond a reasonable doubt” standard required here. France has also taken a rather different approach to civil law on the Internet, for instance holding Yahoo! liable for anti-semitic postings by users.

But these differences also go in another direction. Several weeks ago the French Assembly passed a measure, known as the “three strikes” law, that required ISPs to terminate Internet access for users found to have downloaded copyrighted materials at least three times. That law has now been set aside as unconstitutional (yes, France actually has a constitution!) by the French courts.

The French Constitutional Council ruled Wednesday that the law’s reliance on the government committee to make decisions on when to cut off people’s Internet access made it incompatible with the French Constitution. Since the “Internet is an element of freedom of speech and the right to consume,” only a judge has the power to deprive someone of it, according to the decision.

As a result, the law will be enacted without the “third-strike” of cutting off Internet access. Instead the government agency only will be permitted to send out mail and email warnings to suspected pirates. If it wants to further sanction an alleged illegal downloader, it will have to go to court.

Sarkozy’s Web-Piracy Fight Dealt Blow [WSJ.com].

While the decision rests ultimately on what we in the U.S. would term separation-of-powers, namely the relationship among different branches of government, it also introduces a concept completely alien to the American legal system. Although the Declaration of Independence starts with several self-evident truths, “liberty” and the First Amendment have never been interpreted to protect a “fundamental right” to communicate via the Internet, let alone break copyright laws. So in the U.S., a government agency can access one’s Internet usage from an ISP without a warrant (and sometimes without a subpoena) and a subscriber’s relationship with his or her ISP is a creature of private contract, not statutory, let alone constitutional, protection.

I am not suggesting that America adopt any or all of the French code-based legal system. What I believe this shows, however, is that even cultures which most Americans would regard as less concerned with the basic freedoms of its citizens — Americans would never stand for a system under which prosecutor and judge were combined in a single agency, judge or other government official — can teach us something about the values underlying the legal relationship of people to their government. Here in America we are blessed with constitutional rights. But basic human needs, like housing, jobs and medical care, are not a legal right. Internet access is very important to success in today’s economy, and I for one suggest that perhaps a debate on whether relegating that issue to the private, unilateral terms of service (ToS) of ISPs and Web site operators is a paradigm that is unlikely to be successful in the long term.

Goodbye “freedom fries.” You Frenchies aren’t so bad after all.

DNA, CODIS and Liberty

Last week, a federal district court ruled that mandatory DNA collection for all people facing federal felony charges is constitutional, dealing a setback to civil liberties. U.S. District Judge Gregory G. Hollows upheld the DNA Fingerprint Act, a 2006 statute which allows federal law enforcement agencies to collect DNA from individuals “arrested, facing charges, or convicted” of federal offenses, as well as those “detained” but not charged. Previously, states throughout the country had a variety of different laws on the books regarding DNA collection — with most mandating testing only after a suspect had been convicted of a crime. The Not-So Private Parts [True/Slant].

So to dub this a “criminal” DNA database is misleading, because the DNA collection — stored in a database known as CODIS, short for Combined DNA Index System — is not limited to convicted people and never goes away. Historically, until 2001 DNA was collected only from inmates who had been convicted of a small number of specified offenses defined in rules promulgated by the Justice Department. Then the USA PATRIOT Act, in Section 503, added three additional categories of qualifying federal offenses for purposes of DNA-sample collection: (1) an offense listed in 18 U.S.C. 2332b(g)(5)(B), for “acts of terrorism transcending national boundaries”; (2) a crime of violence; and (3) an attempt or conspiracy to commit any of the above offenses.

So this little-noticed piece of legislation not only expands infinitely, to any criminal offense, those eligible for DNA collection. It also expands the DNA database to people who are arrested but never indicted or “charged” but never tried, as well as those who are acquitted! That’s bad enough, in my view, to characterize this law as yet another step toward an Orwellian future for the United States, driven by the knee-jerk reaction to 9/11, led by conservatives such as Sen. John Kyl, well-known for spearheading the so VERY important battle to criminalize Internet gambling by U.S. citizens. Will the government require location-based service providers, cell phone networks and smart-tag toll technologies to hand over and archive location data on subscribers, so the government can track us? Will Amazon, eBay and other online retailers be forced to allow the government to troll their databases for purchasing patterns?

Maybe folks made the same complaints when fingerprints began to be collected on arrest more than 70 years ago. But the difference is that DNA has taken on almost mythical status as being indisputable. As Eric Goldman observed when the Act was passed:

Criminal jurors, charged with deciding facts in a trial, tend to be irreversibly swayed by DNA evidence, rightly or wrongly. Call it the “CSI effect,” but DNA evidence creates an irrefutable connection in the minds of most jurors. While this can be a two-edged sword when juries expect forensic evidence prosecutors just don’t have, jury allegiance to DNA evidence tends to harm defendants it is introduced against much more than it exonerates them.

This is a double-whammy. First the government gets DNA from anyone with even the most cursory involvement with the criminal justice system. Then it can utilize those samples to add a patina of irrefutability to its criminal prosecutions. Whether or not the CODIS database is extended again (maybe to all infants born in the United States, justified as a way to protect against kidnapping and Amber Alert lost kids?), I believe its application beyond individuals convicted or indicted for terrorism and violent felonies is unnecessary and irresponsible.

As Benjamin Franklin wrote in 1759, “Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.” That’s a good lesson to apply to the DNA Fingerprint Act.

Courage and Judicial Activism

This is Judge Stanley Birch’s stirring separate opinion in the decision of the U.S. Court of Appeals for the 11th Circuit (Atlanta) to reject the appeal of Terry Schiavo’s parents under the special statute Congress passed last Monday giving federal courts jurisdiction over that single case.

A popular epithet directed by some members of society, including some members of Congress, toward the judiciary involves the denunciation of “activist judges.” Generally, the definition of an “activist judge” is one who decides the outcome of a controversy before him according to personal conviction, even one sincerely held, as opposed to the dictates of the law as constrained by legal precedent and, ultimately, our Constitution.

In resolving the Schiavo controversy it is my judgment that, despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers’ blueprint for the governance of a free people — our Constitution. Since I have sworn, as have they, to uphold and defend that Covenant, I must respectfully concur in the denial of the request for rehearing en banc. I conclude that Pub. L.109-3 (“the Act”) is unconstitutional and, therefore, this court and the district court are without jurisdiction in this case under that special Act and should refuse to exercise any jurisdiction that we may otherwise have in this case.

And if you think this comes from a liberal jurist, you’re way wrong. Birch is from rural Georgia, was an Army lieutenant in Viet Nam from 1970-72 and was nominated to the federal bench by by George H.W. Bush on March 22, 1990. That’s a conservative bio if I ever heard one. And as Ed Brayton from Dispatches from the Culture Wars cogently points out

He voted to uphold the Florida law banning adoption by gay couples, a case the Supreme Court refused to hear a few months ago. In writing the opinion in that case, Judge Birch strongly criticized the ruling in Lawrence v. Texas, the case that overturned state laws against sodomy. He wrote that he thought the law should be changed and was unwise, but he refused to allow his personal feelings to govern his judicial decisionmaking, saying bluntly in his ruling, “Any argument that the Florida Legislature was misguided in its decision is one of legislative policy, not constitutional law.” So when Judge Birch speaks about judicial restraint, he’s certainly worth listening to.

We need more judges like Stanley Birch, judges who have the courage to tell it like it is and not base decisions on political expediency.

Death With Dignity

The U.S. Congress this evening made a frantic, last-ditch effort to keep Terri Schiavo alive, passing measures that call for the federal courts to prevent the removal of feeding tubes from the brain-damaged woman in Florida. President George W. Bush applauded the move, saying the courts should rule “in favor of life.”

Well, let’s look at the real facts. Sen. Rick Santorum of Pennsylvania, a rabid anti-abortion advocate, introduced a bill (S.539) dubbed the “Incapacitated Persons Legal Protection Act of 2005.” Supposedly under the 14th amendment to the Constitution, which provides that`No State . . . shall deprive any person of life . . . without due process of law,” the bill would deem any person (husband, wife, doctor, etc.) who is “authorized or directed by court order to withdraw or withhold food, fluids, or medical treatment” to be holding an incapacitated person in “custody” for purposes of federal court habeas corpus proceedings. In layman’s terms, this means that the constitutional protection against government custodial confinement — which is used to challenge state criminal convictions as unconstitutional — would now be extended to anyone who obtains a state court order allowing a loved one to die. Private citizens, not the state, are now being commanded to give up their personal autonomy by the fiction that their spouses (legal guardian in all other situations) become the government because a court ratifies one’s right to die.

Santorum’s bill reasons that:

In circumstances in which there is a contested judicial proceeding because of a dispute about the expressed previous wishes or best interests of a person presently incapable of making known a choice concerning treatment, food, and fluids the denial of which will result in death, [the Congress must] guarantee that the fundamental due process and equal protection rights of incapacitated persons are protected by ensuring the availability of collateral review through habeas corpus proceedings.

Bullshit. In Terry Schiavo’s case, where that poor woman has been in a persistent coma, without consciousness, for 15 years, the bill would take away from those who know her best the power to let her die and allow any third-party — not limited to her parents, but anyone — to use the courts to contest her right to die. This is not about due process, it’s about manufacturing a federal “right” out of thin air, just like Santorum piously claims the Supreme Court did in Roe v. Wade on abortion. The hypocrisy is simply astonishing. As Schiavo’s husband said on Nightline, will the government now force cancer patients to take chemo against their wishes? The policy and legal logic is the same, but the result is the Big Brother government that Republicans traditionally despise. Now they’re all for it, wanting to overturn 19 Florida court decisions, all of which confirmed that Terry Schiavo is brain dead, can never have any senses again, and should be allowed to be removed from artificial life support.

Bill Clinton famously declared that “the era of big government is over” in 1995. Not true. Now that the Republicans control both houses of Congress and the White House, after lambasting Clinton, they’re moving government ever more deeply into state, local and intensely personal affairs. Santorum, Dubya and the congressional Repubicans are the George Orwells of 2005, only 21 years after “1984.”

Update: When the House could not pass a bill acceptable to the Senate last night, it came up with a new strategy. To subpoena Terry Schiavo’s husband to testify before Congress in Washington, D.C. so that he would have to leave Florida when the order allowing disconnection of life support goes into effect this afternoon. Shameful.

The Law Isn’t the Answer

Everyone remembers being in high school and rebelling against authority, including the facists who run such institutions with their hall passes and dance chaperones. Apparently, today things are even more restrictive, including breathalyzer tests administered routinely during the school day. Sobriety Tests Are Becoming Part of the School Day [NYTimes.com].

What I find most interesting, however, is not that this stuff is occurring — that’s just an update of the battles waged between teenagers and teachers since James Dean in the 1950s — but that communities are themselves rebelling against the exercise of such intrusive school authority. The courts routinely uphold almost all steps schools invoke against students, regardless of the privacy implications, on the ground that minors do not enjoy the same First Amendment rights as adults and that schools act in loco parentis (in the place of the parents). But as the Times reports, “such policies easily survive legal challenges, but often crumple under community opposition.”

That’s a good example of why the law is not always (indeed, rarely) the answer to social problems. It’s also an illustration that even parents, of which I am now one, can sometimes live up to the ideal of “Do as I Do,” not just “Do as I Say.”

Gay Marriage Without Dissent

Today the U.S. Supreme Court — without any dissent, even from the most conservative justices — refused to accept review of the Massachusetts decision requiring state officials there to recognize same-sex marriage. Although Supreme Court decisions in such certiorari proceedings are not precedential, it seems to me that this pretty much puts a nail into the coffin about whether the Court thinks the equal protection argument advanced in favor of gay marriage is invalid.

Just as the Court reached out in 2000 to decide Bush v. Gore, because it wanted to end the Florida recount, it could have done so with this case even though Massachusetts decided on state consitutional grounds. As the Court recognized in 2000:

The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.

That same logic would obviously work to federalize same-sex marriage as a constitutional issue. But the Supremes said no, meaning there are still (believe it or not) some political questions in which the Court wants to avoid meddling. Glory be, a real conservative decision from a Supreme Court that is in actuality as activist as they come.