In the USA...Fault Lines: How the White House was Won
It was a long and bitter race that cost at least $2.5bn, but were American voters presented with a real choice?
This episode of Fault Lines takes viewers through a tour of the US 2012 presidential campaign, from the high and low moments, to the Spin Room, to the noisy campaign ads that blanketed swing states.
We ask whether voters were presented with a real choice between the candidates, and whether the system truly is democratic.
Click to watch: http://www.aljazeera.com/programmes/faultlines/2012/11/20121189229485930.html
November 25, 2012A Minimum Tax for the Wealthy
By WARREN E. BUFFETT
SUPPOSE that an investor you admire and trust comes to you with an investment idea. “This is a good one,” he says enthusiastically. “I’m in it, and I think you should be, too.”
Would your reply possibly be this? “Well, it all depends on what my tax rate will be on the gain you’re saying we’re going to make. If the taxes are too high, I would rather leave the money in my savings account, earning a quarter of 1 percent.” Only in Grover Norquist’s imagination does such a response exist.
Between 1951 and 1954, when the capital gains rate was 25 percent and marginal rates on dividends reached 91 percent in extreme cases, I sold securities and did pretty well. In the years from 1956 to 1969, the top marginal rate fell modestly, but was still a lofty 70 percent — and the tax rate on capital gains inched up to 27.5 percent. I was managing funds for investors then. Never did anyone mention taxes as a reason to forgo an investment opportunity that I offered.
Under those burdensome rates, moreover, both employment and the gross domestic product (a measure of the nation’s economic output) increased at a rapid clip. The middle class and the rich alike gained ground.
So let’s forget about the rich and ultrarich going on strike and stuffing their ample funds under their mattresses if — gasp — capital gains rates and ordinary income rates are increased. The ultrarich, including me, will forever pursue investment opportunities.
And, wow, do we have plenty to invest. The Forbes 400, the wealthiest individuals in America, hit a new group record for wealth this year: $1.7 trillion. That’s more than five times the $300 billion total in 1992. In recent years, my gang has been leaving the middle class in the dust.
A huge tail wind from tax cuts has pushed us along. In 1992, the tax paid by the 400 highest incomes in the United States (a different universe from the Forbes list) averaged 26.4 percent of adjusted gross income. In 2009, the most recent year reported, the rate was 19.9 percent. It’s nice to have friends in high places.
The group’s average income in 2009 was $202 million — which works out to a “wage” of $97,000 per hour, based on a 40-hour workweek. (I’m assuming they’re paid during lunch hours.) Yet more than a quarter of these ultrawealthy paid less than 15 percent of their take in combined federal income and payroll taxes. Half of this crew paid less than 20 percent. And — brace yourself — a few actually paid nothing.
This outrage points to the necessity for more than a simple revision in upper-end tax rates, though that’s the place to start. I support President Obama’s proposal to eliminate the Bush tax cuts for high-income taxpayers. However, I prefer a cutoff point somewhat above $250,000 — maybe $500,000 or so.
Additionally, we need Congress, right now, to enact a minimum tax on high incomes. I would suggest 30 percent of taxable income between $1 million and $10 million, and 35 percent on amounts above that. A plain and simple rule like that will block the efforts of lobbyists, lawyers and contribution-hungry legislators to keep the ultrarich paying rates well below those incurred by people with income just a tiny fraction of ours. Only a minimum tax on very high incomes will prevent the stated tax rate from being eviscerated by these warriors for the wealthy.
Above all, we should not postpone these changes in the name of “reforming” the tax code. True, changes are badly needed. We need to get rid of arrangements like “carried interest” that enable income from labor to be magically converted into capital gains. And it’s sickening that a Cayman Islands mail drop can be central to tax maneuvering by wealthy individuals and corporations.
But the reform of such complexities should not promote delay in our correcting simple and expensive inequities. We can’t let those who want to protect the privileged get away with insisting that we do nothing until we can do everything.
Our government’s goal should be to bring in revenues of 18.5 percent of G.D.P. and spend about 21 percent of G.D.P. — levels that have been attained over extended periods in the past and can clearly be reached again. As the math makes clear, this won’t stem our budget deficits; in fact, it will continue them. But assuming even conservative projections about inflation and economic growth, this ratio of revenue to spending will keep America’s debt stable in relation to the country’s economic output.
In the last fiscal year, we were far away from this fiscal balance — bringing in 15.5 percent of G.D.P. in revenue and spending 22.4 percent. Correcting our course will require major concessions by both Republicans and Democrats.
All of America is waiting for Congress to offer a realistic and concrete plan for getting back to this fiscally sound path. Nothing less is acceptable.
In the meantime, maybe you’ll run into someone with a terrific investment idea, who won’t go forward with it because of the tax he would owe when it succeeds. Send him my way. Let me unburden him.
Warren E. Buffett is the chairman and chief executive of Berkshire Hathaway.
************Anti-tax crusader Grover Norquist faces erosion of power
By Agence France-Presse
Monday, November 26, 2012 0:29 EST
Anti-tax evangelist Grover Norquist, one of Washington’s most influential figures, is facing an apparent erosion of his power as leading Republicans begin opting out of pledges to his cause.
Norquist has amassed considerable clout over the last couple of decades by managing to get hundreds of Republicans in elective office to sign a controversial pledge vowing never to vote for a tax increase.
But there was growing feeling Sunday that the anti-tax crusader and his pledge were quickly becoming irrelevant as several party bigwigs said they would abandon the vow and analysts openly questioned his continued relevance.
“Grover Norquist is an impediment to good governing,” Republican political strategist Matthew Dowd told ABC television’s “This Week” program.
“The only good thing about Grover Norquist is, he’s named after a character from ‘Sesame Street,’” Dowd said.
“I think Grover Norquist’s sell-by date has passed,” said another longtime political observer, Joe Klein of Time Magazine.
Norquist, who heads the Americans for Tax Reform group, began collecting signatories to his pledge more than 20 years ago, gathering the names of politicians no less powerful than Mitt Romney, the recently-vanquished Republican presidential candidate.
Signatories to Norquist’s “Taxpayer Protection Pledge” agreed to “oppose any and all efforts to increase the marginal income tax rates for individuals and/or businesses.”
They also promised to “oppose any net reduction or elimination of deductions and credits, unless matched dollar for dollar by further reducing tax rates.”
A longtime Washington player, Norquist is a Harvard MBA and trained economist whose rock-solid Republican credentials include membership on the board of the National Rifle Association (NRA) and the American Conservative Union.
He founded Americans for Tax Reform in 1985, and the group’s website says that in the current legislature there are 238 House members and 41 senators who have taken the pledge, as well as 13 governors and 1,244 state legislators.
Any Republican lawmaker who breaks the no-taxes vow faces the opprobrium of their party and a probable primary challenge from a more hardline opponent who can be counted on to toe the party line.
But prominent Republican Senator Saxby Chambliss said last week that even a possible future election challenge was not enough to convince him to stick to his promise.
“I care more about my country than I do about a 20-year-old pledge,” Chambliss told a Georgia television station last week.
As far as a primary challenge goes, he said, “I don’t worry about that because I care too much about my country. I care a lot more about it than I do Grover Norquist.”
Norquist’s influence appears to have diminished quickly following the November 6 vote that re-elected Barack Obama and gave the president greater authority in talks to find measures to reduce America’s ballooning debt.
Amid a growing consensus that it will take a combination of spending cuts and more revenue to rein in the deficit, the Republican leadership appears ready to jettison what had once seemed an iron-clad no-tax-hike promise.
“I will violate the pledge, long story short, for the good of the country,” senior Republican Senator Lindsey Graham told “Fox News Sunday.”
Republicans are only reconsidering their stance on taxes because a poison pill law — designed to force action to rein in the debt — will see a potentially catastrophic combination of tax hikes and spending cuts come into force if no deal is reached by the year-end.
Another prominent Republican to openly break with Norquist on Sunday was leading House representative Peter King.
One cannot be held to “a pledge you signed 20 years ago, 18 years ago,” the New York lawmaker said on NBC’s “Meet the Press” program.
“For instance, if I were in Congress in 1941, I would have signed a declaration of war against Japan. I’m not going to attack Japan today,” he said.
“The world has changed,” said King, “and the economic situation is different.”
November 25, 2012Trying to Turn Obama Voters Into Tax Allies
By MICHAEL D. SHEAR
WASHINGTON — When Tea Party activists swamped town hall-style meetings about health care in the summer of 2009, President Obama’s army of campaign volunteers largely stayed away, seemingly less interested in fighting for legislation than they had been in electing the nation’s first African-American president.
Now, Mr. Obama is seizing a second chance to keep his election-year supporters animated.
With lawmakers scheduled to return to work on Monday to begin intense discussions before a looming fiscal deadline, Mr. Obama’s aides are trying to harness the passions that returned him to the White House, hoping to pressure Republicans in Congress to accept tax increases on the wealthy. The president’s strategists are turning first to the millions of e-mail addresses assembled by the campaign and the White House.
Already, supporters are being asked to record YouTube videos of themselves talking about the importance of raising taxes on the rich. Aides said those videos would be shared on Facebook and Twitter and would be forwarded to centrist Democrats, as well as to mainstream Republicans, who they hope will break with their Tea Party colleagues.
An e-mail last week urged activists to share with their friends a graphic explaining the president’s tax argument. And Mr. Obama’s campaign manager sent an e-mail appeal asking supporters to fill out a survey about issues they would like to stay involved in.
The president is planning rallies in influential states to remind supporters of the need to keep the pressure on lawmakers during the fiscal talks. And should negotiations break down, Mr. Obama’s team is arranging for Republican lawmakers to hear from of tens of thousands of riled-up activists through angry Twitter posts, e-mails and Facebook messages.
“If Republicans refuse to move, if they refuse to cooperate, then you’ve got to be willing to engage the American public,” said Representative Chris Van Hollen, a Maryland Democrat and important Obama ally. The campaign machinery, he said, “will respond to the president calling upon it to get engaged.”
As Mr. Obama tries to motivate his army of supporters, his rivals will be working to do the same. Republicans have acknowledged that they did not match Mr. Obama’s campaign operation, but in the tax fight, the party and its allies will also be using technology.
The Republican National Committee has turned to Twitter regularly to talk about the impact of tax increases on small businesses, using the hashtag #StopTheTaxHike. And the U.S. Chamber of Commerce has begun a multimedia campaign that it says is intended to prevent a financial disaster if Congress and the president do not reach an agreement.
The chamber’s site has a “Fiscal Cliff Countdown” clock, a calculator to determine “your post-taxmageddon taxes” and links to e-mail members of Congress.
Republicans in Congress will not have access to the kind of national list that Mr. Obama does. And yet it is not certain that Mr. Obama and his allies will be any more successful in motivating his followers than they were during the postelection period four years ago.
The fiscal negotiations are taking place behind closed doors, and to reach a deal with Speaker John A. Boehner, Mr. Obama will probably have to make compromises that could undermine the fervor of his most ardent supporters.
“The big issue they are going to have to figure out with the list is that activists want to fight for issues they can believe in,” said Eddie Vale, a spokesman for Protect Your Care, a liberal advocacy group. “A call to cut a bipartisan deal — that’s not going to cut it.”
At the same time, the White House needs to avoid overplaying its hand and antagonizing Republicans to the point where a deal becomes impossible.
Obama aides view keeping their grass-roots supporters energized as important to the president’s second-term success on broader tax changes, an immigration overhaul and efforts on climate change.
In his first term, Mr. Obama’s yearlong battle over health care failed to inspire the millions of activists from his 2008 campaign to put pressure on Republican lawmakers.“We were stunned that it never showed up,” said a senior member of a pro-health-overhaul interest group, who asked for anonymity to avoid angering the White House. “They had this thing built, and we were waiting for them to turn it on, and it just never came.”
Later on, Mr. Obama’s team did more to rally pressure on his adversaries. The president succeeded in fights with Republicans to extend the payroll tax cut in 2011 and to change student loans.
“There’s always a challenge between rallying cry issues and the challenge of governing,” said Neera Tanden, the president of the Center for American Progress, a liberal research group. “It’s one that I’m confident he can navigate.”
The first test of the mobilization efforts will come quickly, as the president pushes the tax issue during the lame-duck session of Congress. The idea, aides say, is to marry old-fashioned phone calls to the offices of wavering lawmakers with the latest social media tools.
Unions and progressive groups have made a Web site, theaction.org, calling for an end to “the Bush tax cuts for the richest two percent.” Supporters are encouraged to download an “action kit” that includes materials needed to make signs, letterheads and Web site banner ads — all arguing for an end to the tax cuts.
One sign that can be printed out says “Middle Class Over Millionaires.” Another says “Fairness & Progress from Congress.” A typical banner advertisement that supporters can download and post on their Web site says “End the Bush Tax Cuts for the Wealthy.”
Visitors to the site are also given the option of expressing their support for Mr. Obama with a single click that creates a Twitter message: “The election is over. Don’t rest. Join the action. The action to end the Bush tax cuts for the rich. #theaction.”
Another button on the site takes visitors to a Facebook page that can be used to organize meet-ups for the tax fight.
“People just spent five years winning two presidential elections together,” Jim Messina, the president’s campaign manager, told Politico last week in his first extended interview since the election. “They’re now not going to walk away and not help him become the change that they want to see.”
In the survey e-mail that came from Mr. Messina shortly after the election, supporters were asked to identify issues they would be willing to volunteer on, including the economy, education, immigration, jobs and trade, tax fairness, urban community issues and climate change.
Among the questions on the survey: Would supporters like to continue to volunteer in their community as part of an Obama organization? And if so, the survey asked, how many hours a week could they work?
“They built these tools,” Mr. Messina said. “They’re the people that know how to do them. And I think what they want to use them on now is to continue to help the president advocate for his agenda.”
The president himself has vowed to take the lead by continuing a campaign-like presence in communities across the country as he battles for the tax increases on the wealthy and what he calls a “balanced” approach to spending cuts and deficit reduction.
If Mr. Obama succeeds in the fight over the tax cuts because of help from energized activists, his advisers hope the victory will embolden those supporters even more.
“Success begets success,” Ms. Tanden said. “If they are able to take this argument and mobilize them on the fiscal cliff, then I believe he will have success on immigration reform and future issues.”
November 26, 2012 07:00 AMWhy Isn't Austerity For The Greedy CEOs of Fix The Debt?
By Susie Madrak
As economists Jared Bernstein and Chuck Marr explain, tax repatriation isn't a good deal for anyone except the greedy CEOs whose companies don't have to pay the taxes.http://www.youtube.com/watch?feature=player_embedded&v=Co6xivR2d5s
As our friend at Scrutiny Hooligans points out, scratch a fervent austerian and find an opportunistic S.O.B.! How deliciously ironic that the Fix The Debt gang are pushing austerity policies that will translate into millions, even billions of dollars for themselves in tax breaks!
Austerity. Just what you wanted for Christmas. From McClatchy:
CHARLOTTE, N.C. — A group co-founded by Charlottean Erskine Bowles brings its campaign to reduce the federal debt to North Carolina next week, making the state the latest front in the battle to avert the “fiscal cliff.”
Two former governors – Democrat Jim Hunt and Republican Jim Holshouser – will launch Fix the Debt’s N.C. chapter at a news conference Tuesday in Raleigh.
Fix the Debt was founded by Bowles and Alan Simpson, a former U.S. senator from Wyoming. They chaired the so-called Bowles-Simpson commission that two years ago proposed a package of spending cuts and tax hikes to begin reducing the federal debt, now estimated at over $16 trillion.
If you didn’t see Lloyd Blankfein’s CBS interview a few days ago, it gets better. From Huffington Post, “CEO Council Demands Cuts To Poor, Elderly While Reaping Billions In Government Contracts, Tax Breaks”:
WASHINGTON — The corporate CEOs who have made a high-profile foray into deficit negotiations have themselves been substantially responsible for the size of the deficit they now want closed.
The companies represented by executives working with the Campaign To Fix The Debt have received trillions in federal war contracts, subsidies and bailouts, as well as specialized tax breaks and loopholes that virtually eliminate the companies’ tax bills.
The CEOs are part of a campaign run by the Peter Peterson-backed Center for a Responsible Federal Budget, which plans to spend at least $30 million pushing for a deficit reduction deal in the lame-duck session and beyond.
During the past few days, CEOs belonging to what the campaign calls its CEO Fiscal Leadership Council — most visibly, Goldman Sachs’ Lloyd Blankfein and Honeywell’s David Cote — have barnstormed the media, making the case that the only way to cut the deficit is to severely scale back social safety-net programs — Medicare, Medicaid, and Social Security — which would disproportionately impact the poor and the elderly.
But not them or their firms. The HuffPost’s Christina Wilkie and Ryan Grim point to a report by the Institute for Policy Studies that calls Fix the Debt “a Trojan horse for massive corporate tax breaks,” and provides these findings:
The 63 Fix the Debt companies that are publicly held stand to gain as much as $134 billion in windfalls if Congress approves one of their main proposals — a “territorial tax system.” Under this system, companies would not have to pay U.S. federal income taxes on foreign earnings when they bring the profits back to the United States.
The CEOs backing Fix the Debt personally received a combined total of $41 million in savings last year thanks to the Bush-era tax cuts. The top CEO beneficiary of the Bush tax cuts in 2011, Leon Black of Apollo Global Management, saved $9.9 million on the Bush tax cuts. The private equity fund leader reaped $215 million in taxable income last year just from vested stock.
Of the 63 Fix the Debt CEOs at publicly held firms, 24 received more in compensation last year than their corporations paid in federal corporate income taxes. All but six of these firms reported U.S. profits last year.
So the one-time-only Bush repatriation tax holiday (2004) is back again, again. A year ago, NC Democrat Sen. Kay Hagan partnered with Sen. John McCain in an attempt to resurrect the one-time-only scheme one more time. It went nowhere. But their corporate sponsors are persistent little devils. So now repatriation is back re-branded as Fix the Debt’s “territorial tax system.” In addition to the profits mentioned above, the territorial tax system “give companies additional incentives to disguise U.S. profits as income earned in tax havens in order to avoid paying U.S. income taxes.”
Not to mention a permanent incentive for moving jobs offshore. Chuck Marr, Director of Federal Tax Policy at the Center on Budget and Policy Priorities, told Jared Bernstein last year, “a dog could figure this out.” [timestamp 4:10]
Isn't that nice. Show this to your relatives who still think this whole austerity "crisis" is real.
November 25, 2012Time Slipping, U.S. Ponders Afghan Role After 2014
By MICHAEL R. GORDON
WASHINGTON — American and allied military planners are drawing up the broad outlines of a force that would remain in Afghanistan following the handover to Afghan security after 2014, including a small counterterrorism force with an eye toward Al Qaeda, senior officials say.
Under the emerging plan, the American counterterrorism force might number less than 1,000, one military official said. In a parallel effort, NATO forces would advise Afghan forces at major regional military and police headquarters but most likely have a minimal battlefield role, with the exception of some special operations advisers.
Final decisions on the size of the American and NATO presence after 2014 and its precise configuration have not been made by the United States or its allies. But one option calls for about 10,000 American and several thousand non-American NATO troops.
The planning for a post-2014 mission has emerged as an early test for President Obama in his new term as he tries to flesh out the strategy for transferring the responsibility for security to the Afghans. But it is not the only challenge: After the White House decides what sort of military presence to propose to the Afghan government for after 2014, it must turn to the question of how quickly to reduce its troop force before then.
As one of his last acts as senior American commander in Afghanistan, Gen. John R. Allen is expected to submit a formal recommendation for how quickly to begin withdrawing the United States’ 66,000 troops. Two American officials who are involved in Afghan issues said that General Allen wants to keep a significant military capability through the fighting season ending in fall 2013, which could translate to a force of more than 60,000 troops until the end of that period.
Afghan forces are to assume the lead role for the war next year, and a military officer said that such a troop level would enable the United States to better support them, maintain the initiative and control critical terrain.
But such an approach may entail a heavier military involvement than the White House, which appears weary of the war, might like.
The White House is expected to ask General Allen to submit a range of options for drawing down forces next year, including some involving substantial reductions in troop levels.
“The White House has not yet asked General Allen for his assessment, nor have we begun considering any specific recommendations for troop numbers in 2013 and 2014,” said George Little, the Pentagon spokesman. “What is true is that in June 2011 the president made clear that our forces would continue to come home at a steady pace as we transition to an Afghan lead for security. That it still the case.”
The issue is already a politically contentious one. Some leading Democratic lawmakers have signaled that they would like to see steady troop reductions next year while Republicans have argued that speedy withdrawals would jeopardize hard-won gains.
There are also questions about General Allen’s future: his e-mails to a woman linked to the F.B.I. inquiry that disclosed David H. Petraeus’s affair are being investigated by the Pentagon inspector general.
But General Allen has resumed his duties in Kabul, and Mr. Obama has said that he thinks highly of his military performance. The Marine general who has been nominated to replace him, Joseph F. Dunford Jr., is not scheduled to take up the post until early February and recently told Congress that he had not been part of the planning process.
The planning for a post-2014 force is the Obama administration’s first order of business on Afghanistan for several reasons. The United States has opened talks with the Afghans on a security agreement that would authorize an American troop presence in Afghanistan after 2014. So American officials need to define what role American and NATO forces might play then.
In addition, NATO’s political arm has authorized the alliance’s military planners to develop a concept for how to carry out the post-2014 mission, which is to be approved by the alliance’s defense ministers early next year.
The planning for after 2014 turns on troubling questions on how to guard against the expansion of terrorist groups and advise an Afghan military that has little airpower, poor logistics and difficulties evacuating and treating its own wounded. But it will also depend heavily on the willingness of allied nations to contribute troops and funds.
One question is the scope of the mission for the American counterterrorism force. The targets of the counterterrorism force would include Al Qaeda and possibly Lashkar-e-Taiba, the Pakistan-based militant group linked to Al Qaeda that was responsible for the 2008 Mumbai attacks, and which is found in small numbers in northeast Afghanistan. The Islamic Movement of Uzbekistan might also make the list.
But it was unclear whether the Pakistani-based Haqqani network, which American commandos have focused on for the past two years, would also be a potential target of the American force. Officials say that does not appear to be contemplated by the White House.
An important question for the NATO mission after 2014 is what level of the Afghan military hierarchy they would advise. It is generally expected that they would advise seven regional Afghan Army corps and several regional Afghan police headquarters. The arrangement would largely insulate the NATO advisers from the battlefield, though officials said advisers might accompany Afghan brigades on major operations.
It is unlikely that NATO officers would advise Afghan battalions on the battlefield. That would require many more advisers than the alliance is likely to muster and would entail more risk than most nations seem prepared to assume, though some American experts believe it would make the Afghan military more effective. Still, NATO special operations advisers would be likely to accompany Afghan Army commandos and police SWAT-type units on the battlefield, under the emerging plan.
A major challenge is that Afghanistan will not have an effective air force before 2017, if then. American officials said that NATO airpower would remain in Afghanistan after 2014 but will likely only be used on behalf of NATO and American troops and perhaps Afghan units that are accompanied by NATO advisers. NATO forces rely heavily on airpower for airstrikes, supply and medical evacuation since Afghanistan’s roads are poor and often seeded with bombs.
To compensate for Afghanistan’s limited airpower, American officials are working on a number of fixes, including providing Afghan forces with armored vehicles that would be equipped with mortars and assault guns. The United States is also looking into expanding the purchase of turboprop planes for the Afghans and is trying to help Afghan pilots learn to fly at night.
Equally troubling is the problem of medical evacuations. After 2014, the Afghans will almost certainly need to rely on a system that depends more on ground transportation than helicopters. The Americans want to help them develop more field hospitals.
Senior Afghan military officials are well aware of their deficiencies and are counting on American support.
“Until 2017, we will have American pilots and engineers flying with us,” said Gen. Abdul Wahab Wardak, the Afghan Air Force Commander. “They will start the handover of the air force at the beginning of 2017 and at the end of the year it will be complete.”
General Wardak also noted that the Afghan military needed NATO help to provide “close air support and medevac.” And he ticked off a long list of equipment he hoped to receive from the United States, including transport airplanes and parts.
Still, in the broader sense, a senior American military officer acknowledged that the United States faced formidable difficulties in getting the Afghans ready to operate on their own.
The challenge, the officer said, is “building the back end” of the army and the police: “We’ve been focused on their fighting ability. Now it’s the time we need to focus on getting them the ability to get what they need so they can fight.”
Reporting was contributed by Matthew Rosenberg and Alissa J. Rubin from Kabul, Afghanistan, and Eric Schmitt and Wesley S. Morgan from Washington.
November 25, 2012Courts Divided Over Searches of Cellphones
By SOMINI SENGUPTA
Judges and lawmakers across the country are wrangling over whether and when law enforcement authorities can peer into suspects’ cellphones, and the cornucopia of evidence they provide.
A Rhode Island judge threw out cellphone evidence that led to a man being charged with the murder of a 6-year-old boy, saying the police needed a search warrant. A court in Washington compared text messages to voice mail messages that can be overheard by anyone in a room and are therefore not protected by state privacy laws.
In Louisiana, a federal appeals court is weighing whether location records stored in smartphones deserve privacy protection, or whether they are “business records” that belong to the phone companies.
“The courts are all over the place,” said Hanni Fakhoury, a criminal lawyer with the Electronic Frontier Foundation, a San Francisco-based civil liberties group. “They can’t even agree if there’s a reasonable expectation of privacy in text messages that would trigger Fourth Amendment protection.”
The issue will attract attention on Thursday when a Senate committee considers limited changes to the Electronic Communications Privacy Act, a 1986 law that regulates how the government can monitor digital communications. Courts have used it to permit warrantless surveillance of certain kinds of cellphone data.
A proposed amendment would require the police to obtain a warrant to search e-mail, no matter how old it was, updating a provision that currently allows warrantless searches of e-mails more than 180 days old.
As technology races ahead of the law, courts and lawmakers are still trying to figure out how to think about the often intimate data that cellphones contain, said Peter P. Swire, a law professor at Ohio State University. Neither the 1986 statute nor the Constitution, he said, could have anticipated how much information cellphones may contain, including detailed records of people’s travels and diagrams of their friends.
“It didn’t take into account what the modern cellphone has — your location, the content of communications that are easily readable, including Facebook posts, chats, texts and all that stuff,” Mr. Swire said.
Courts have also issued divergent rulings on when and how cellphones can be inspected. An Ohio court ruled that the police needed a warrant to search a cellphone because, unlike a piece of paper that might be stuffed inside a suspect’s pocket and can be confiscated during an arrest, a cellphone may hold “large amounts of private data.”
But California’s highest court said the police could look through a cellphone without a warrant so long as the phone was with the suspect at the time of arrest.
Judges across the nation have written tomes about whether a cellphone is akin to a “container” — like a suitcase stuffed with marijuana that the police might find in the trunk of a car — or whether, as the judge in the Rhode Island murder case suggested, it is more comparable to a face-to-face conversation. That judge, Judith C. Savage, described text messages as “raw, unvarnished and immediate, revealing the most intimate of thoughts and emotions.” That is why, she said, citizens can reasonably expect them to be private.
There is little disagreement about the value of cellphone data to the police. In response to a Congressional inquiry, cellphone carriers said they responded in 2011 to 1.3 million demands from law enforcement agencies for text messages and other information about subscribers.
Among the most precious information in criminal inquiries is the location of suspects, and when it comes to location records captured by smartphones, court rulings have also been inconsistent. Privacy advocates say a trail of where people go is inherently private, while law enforcement authorities say that consumers have no privacy claim over signals transmitted from an individual mobile device to a phone company’s communications tower, which they refer to as third-party data.
Delaware, Maryland and Oklahoma have proposed legislation that would require the police to obtain a warrant before demanding location records from cellphone carriers. California passed such a law in August after intense lobbying by privacy advocates, including Mr. Fakhoury’s group. But Gov. Jerry Brown, a Democrat, vetoed the bill, questioning whether it struck “the right balance between the operational needs of law enforcement and individual expectations of privacy.”
Similar legislation has been proposed in Congress.
Lacking a clear federal statute, the courts have been unable to reach a consensus. In Texas, a federal appeals court said this year that law enforcement officials did not need a warrant to track suspects through cellphones. In Louisiana, another federal appeals court is considering a similar case. Prosecutors are arguing that location information is part of cellphone carriers’ business records and thus not constitutionally protected.
The Supreme Court has not directly tackled the issue, except to declare, in a landmark ruling this year, that the police must obtain a search warrant to install a GPS tracking device on someone’s private property.
“We are in a constitutional moment for location tracking,” said Ben Wizner, director of the American Civil Liberties Union’s Speech, Privacy and Technology Project. “It’s percolating in all these places.”
The Rhode Island case began shortly after 6 a.m. on a Sunday in October 2009, when Trisha Oliver called 911 to say that her son, Marco Nieves, 6, was unconscious in his bed. An ambulance rushed the boy to the hospital. A police officer also responded to the call, and Ms. Oliver escorted him through the bedrooms of her apartment. She then went to the hospital, leaving the police officer behind.
The officer heard a “beeping” in the kitchen, according to court papers. He picked up an LG-brand cellphone from the counter and saw this message: “Wat if I got 2 take him 2 da hospital wat do I say and dos marks on his neck omg.” It appeared to be from Ms. Oliver to her boyfriend, Michael Patino, court documents said.
Mr. Patino, 30, who was in the apartment at the time, was taken to the police station for questioning. The cellphone he had with him was seized. By evening, the boy was dead. The cause of death, according to court records, was “blunt force trauma to the abdomen which perforated his small intestine.”
Mr. Patino was charged with Marco’s murder.
In the course of the investigation, the police obtained more than a dozen search warrants for the cellphones of Mr. Patino, Ms. Oliver and their relatives. They also obtained records of phone calls and voice mail messages from the cellphone carriers.
Nearly three years later, in a 190-page ruling, Judge Savage sharply criticized the police.
The first police officer had no right to look at the phone without a search warrant, Judge Savage ruled. It was not in “plain view,” she wrote, nor did Ms. Oliver give her consent to search it. The court said Mr. Patino could reasonably have expected the text messages he exchanged with Ms. Oliver to be free from police scrutiny.
The judge then suppressed the bounty of evidence that the prosecution had secured through warrants, including the text message that had initially drawn the police officer’s attention.
“Given the amount of private information that can be readily gleaned from the contents of a person’s cellphone and text messages — and the heightened concerns for privacy as a result — this court will not expand the warrantless search exceptions to include the search of a cellphone and the viewing of text messages,” she wrote.
Mr. Patino remains in jail while the case is on appeal in the state’s Supreme Court. A lawyer for Mr. Patino did not respond to a request for comment.
Just months before Judge Savage’s ruling, the Rhode Island legislature passed a law compelling the police to obtain a warrant to search a cellphone, even if they find it during an arrest. Gov. Lincoln D. Chafee, an independent, vetoed the bill, saying, “The courts, and not the legislature, are better suited to resolve these complex and case-specific issues.”
November 25, 2012Republican and Lesbian, and Fighting for Acceptance of Both Identities
By SARAH WHEATON
In 1996, Kathryn Lehman was a soon-to-be married lawyer working for Republicans in the House of Representatives. One of her major accomplishments: helping to write the law that bans federal recognition of same-sex marriages.
Today, Ms. Lehman, 53, no longer has a husband, and no longer identifies as straight. And she is a lobbyist for Freedom to Marry, which is devoted to overturning the very law she helped write, the Defense of Marriage Act.
But Ms. Lehman is still a fervent Republican.
“I’m trying to break the stereotype that all gays and lesbians, especially lesbians, are Democrats,” she said.
Although the Republican Party has long drawn gay men who believe in the party’s message of small government and a strong military, Republican lesbians are a rare political breed.
“Oh, we’re like unicorns,” said Erin Simpson, 51, who cites “personal liberty” as a fundamental value and teaches firearms safety in Tucson. Ms. Simpson, who came out in February, was “very disheartened” by Mitt Romney’s loss — one fueled, in part, by overwhelming gay support for President Obama.
There is no way to measure the true numbers, but gay activists say that in many cases, these “unicorns” were Republicans before they were gay — driven by conservative upbringings, economic issues and libertarian principles. They often did not acknowledge their sexual orientation, even to themselves, until middle age.
In interviews, these Republicans said they often feel like the odd women out, in their party and among other lesbians. But they are beginning to make their presence known, said Casey Pick, a program director and the first woman on the staff of the Log Cabin Republicans, a gay-rights group.
“There is a presence of mature, established Republican women who are being more vocal of late,” Ms. Pick said.
These women fear that they are losing the younger generations, who are coming out earlier and are even more likely to identify with the Democratic Party now that Mr. Obama has embraced gay marriage.
The election results, including victories for advocates of same-sex marriage on ballot measures in four states, offer ammunition for Ms. Lehman when she talks to Republicans on Capitol Hill.
Ms. Lehman said last week that some conservatives had already begun saying to her: “You know, it’s not really worth pursuing a federal marriage amendment. This really should be left to the states.”
“That is the more consistent conservative position,” she added.
Ms. Lehman said she felt no guilt over her role in the law banning federal recognition of same-sex marriage. Her motivation, she said, is her gratitude for those who fought for gay rights decades before she knew the cause was her own.
If it were not for them, “I would not be living the wonderful life that I am right now with Julie,” Ms. Lehman said, referring to her partner, Julie Conway, a Republican fund-raiser, with whom she lives in Alexandria, Va.
“I am uniquely suited to do this, so I really need to do it,” she said.
The phenomenon of coming out later in life is not unique to conservatives, but it is more common among women, said Lisa M. Diamond, a professor of psychology at the University of Utah who studies identity and sexual orientation.
“Women are generally socialized to not spend a lot of time thinking about their sexual desires,” Professor Diamond said.
Republican lesbians rejected suggestions that they might have come out earlier if they held more liberal views. In Professor Diamond’s research, the delay usually has more to do with family and religion than ideology.
Cathy Smith’s upbringing was “not rigidly Catholic,” but when she came out in 2010, she said, her mother told her that “she loved me, but she didn’t want me to lose my soul.”
Ms. Smith, a 53-year-old teacher in North Carolina, said that despite signs that she was attracted to women, she was “clueless” in her youth.
“I always wanted to find a husband because my mother felt that women should be married,” Ms. Smith said.
At 18, she registered as a Republican, and though she briefly reconsidered her party affiliation when she came out, Ms. Smith voted for Mr. Romney, albeit reluctantly. Echoing the more than a dozen women interviewed, Ms. Smith said liberal lesbians react more negatively to her political views than conservatives do to her sexual orientation.
“Mention that you’re Christian or mention that you’re Republican and suddenly you just get vilified,” she said. “That may be one of the reasons for the lack of visibility of gay women in the Republican Party.”
Still, she said, “What good are gay rights if your country is falling apart?”
Like many Republican women who have followed her path, Ms. Smith is “still divided in the mind about whether or not gay people should be allowed to marry,” she said, though she supports civil unions.
Younger conservatives increasingly back same-sex marriage. A poll in May by The Washington Post and ABC News found that half of Republicans between the ages of 18 and 44 think it should be legal, compared with a quarter of those over 45.
This shift in attitude — not to mention the election results — led Sarah Longwell, 32, to fear that the Republican stance on gay issues could mean few younger reinforcements, even as older Republican lesbians raise their profiles.
“Now, it is increasingly hard for the Republican Party to attract younger people,” said Ms. Longwell, the only female board member of the Log Cabin Republicans.
“One of the things that’s interesting about these older people in general is that when they were coming up in the world, the Democrats were not any better,” Ms. Longwell said. Because Democrats now support gay marriage, “it posed a much harder question suddenly for gay Republicans.”
Lauren Yarbrough, 22, has, she said, “been lesbian my whole life, also been in church my whole life.”
Ms. Yarbrough has been with the same woman since she was 15, but she prefers civil unions over gay marriage. She opposes abortion rights in most cases, and thinks the government should spend more on the military and less on food stamps and Medicaid. On those issues, she fits into her conservative town, LaGrange, Ga. But she keeps quiet about her sexuality, especially after being fired from a job after her boss found out.
“That’s why I want to get out of this town,” Ms. Yarbrough said. She dreams of moving to California, which she thinks would be more accepting of her sexuality, but not of her politics.
“I can’t win for losing anywhere,” she said with a sigh.
November 25, 2012With Ban on Drilling Practice, Town Lands in Thick of Dispute
By JACK HEALY
LONGMONT, Colo. — This old farming town near the base of the Rocky Mountains has long been considered a conservative next-door neighbor to the ultraliberal college town of Boulder, a place bisected by the railroad and where middle-class families found a living at the vegetable cannery, sugar mill and Butterball turkey plant.
But this month, Longmont became the first town in Colorado to outlaw hydraulic fracturing, the oil-drilling practice commonly known as fracking. The ban has propelled Longmont to the fiercely contested forefront of the nation’s antifracking movement, inspiring other cities to push for similar prohibitions.
But it has also set the city on a collision course with oil companies and the State of Colorado.
“People really didn’t think through this too well,” Mayor Dennis L. Coombs said, sounding weary at the prospect of an onslaught of lawsuits. “We are where we are. I guess you have to respect the people.”
In a way, Longmont’s fracking ban is in a position similar to Colorado’s ballot measure legalizing small amounts of marijuana for recreational use. Both are lessons in the promise and peril of populism: both initiatives sailed through on Election Day despite opposition from the authorities, and both now face legal scrutiny and fights at all levels of government.
Gov. John W. Hickenlooper, a Democrat, has warned Longmont residents that the ban is likely to mean a lawsuit from the state, which insists that only it has the authority to regulate drilling. Already this summer, Colorado sued Longmont over earlier city rules that limit drilling near schools and homes.
Local leaders are also bracing for more lawsuits as they tell energy companies they can no longer frack their wells — a process that involves injecting thousands of gallons of pressurized water, sand and chemicals deep into the earth to fissure the rock and extract the oil and gas locked inside.
The ban does not outlaw all drilling, only the specific practice of hydraulic fracturing within the city limits, as well as the storage and disposal of waste created by the process.
“We’re going contrary to state laws,” said Bill Swenson, one of seven former mayors of Longmont who fought the ban. “We are, in effect, taking your property.”
Fracking has allowed drillers to unlock huge new reservoirs of oil and natural gas over the past few years, and has kick-started economies from North Dakota to western Pennsylvania to here in northern Colorado. The industry says the practice is environmentally safe, but opponents have raised concerns about water contamination and air pollution while objecting to islands of well pads and forests of drilling towers in their communities.
The Colorado Oil and Gas Association, the main lobbying group for the energy industry here, criticized the ban as confrontational and encroaching on the private property of companies that have rights to oil and gas buried deep beneath Longmont’s streets, parks and reservoirs.
“Are the taxpayers of Longmont prepared to provide fair compensation to all of the oil and gas lease holders in Longmont?” said Tisha Schuller, the group’s president.
Supporters of the ban call it a “citizen uprising” against a rush of drilling that has spread like brush fire through towns across the plains of northern Colorado.
In nearby Firestone, wells sit within a few hundred feet of libraries, schools and subdivisions. In Greeley, herds of tanker trucks line up at city fire hydrants at dawn to load water for fracking. Earlier this year, a federal scientist reported finding elevated levels of propane and benzene in the air around Erie. City officials and environmental advocates have even led fracking tours of communities where drilling is at its peak.
When people learned of plans to sink wells in Longmont near the Union Reservoir and a playground and recreational area on the east end of town, a response began to coalesce: not here. Supporters said the state’s decision to sue over Longmont’s regulations stiffened their resolve.
At the start, the ban seemed like a doomed idea.
The energy industry poured money and resources into fighting it, raising more than $500,000 to send out mailers and buy advertisements saying the ban would drive away businesses and incite expensive court battles. The major newspapers in Denver, Boulder and Longmont all urged voters to reject the proposal.
“I had no idea we could upset an entire state government and a trillion-dollar industry,” said Michael Bellmont, an insurance agent who helped gather thousands of signatures and knocked on doors to persuade voters.
Advocates of the ban focused less on climate change and environmental concerns than on hitting voters where they lived: Do you want oil wells venting near your backyard? Do you want drilling near your schools?
The industry said the arguments were based on fear-mongering, deception and antifracking hysteria, but they resonated with voters. The ban passed 60 percent to 40 percent, with broad bipartisan support.
One recent afternoon, a few supporters who helped get the ban passed drove through town to visit some of the “red sites” — areas that had been leased for drilling, or could be in the future. They drove past public parks, open spaces and golf courses and stopped at the Union Reservoir, still and limpid under a cloudy sky.
“There’s a swim beach, there’s sailing, and there will be eight well pads,” said Kaye Fissinger, a supporter of the ban, pointing out potential drilling sites in the distance. “You come out here to relax. You don’t come out here to have your air polluted.”
Al JazerraFault Lines: Fracking in America
With the US looking to ease its reliance on foreign oil, Fault Lines investigates the impact of natural gas extraction.
For years now, the United States has tried to lower its dependence on foreign oil for its energy needs.
With stability in the Middle East in question, drilling at home has never been more attractive. But it often comes at a cost.
Natural gas extraction - fracking - is being touted as the answer. But questions are being asked about the process and its implications.
Click to watch this documentary film:http://www.aljazeera.com/programmes/faultlines/2012/11/201211211093664397.html