In the past week, three very important, highly topical rulings related to civil liberties were issued in federal courts. Each of them may affect your life directly, and, depending on whether they stand up to appeal, each may influence the direction of our society for decades to come.
In case you missed the news on these rulings in between the mainstream media's wall-to-wall coverage of Tiger Woods's return to golf and lively discussions of the theoretical proper usage of the word Topeka as a verb meaning "to search for something on the internet," here are the court decisions that I personally wish TV machine were paying a bit more attention to:
California U.S. District Court Judge Rules Bush Era Warrantless Wiretaps Illegal
Last Wednesday, Judge Vaughn Walker of the Northern California District Court ruled that the National Security Agency and the federal government broke the law when they spied on calls between an American branch of the Al-Haramain Islamic Foundation, an international religious charity, and the charity's lawyers, without a warrant.
The Fourth Amendment to the U.S. Constitution explicitly prohibits the federal government from spying on American citizens without a court's permission. Both FISA (the Foreign Intelligence Surveillance Act) and the post-9/11 PATRIOT Act give the executive branch a bit of Fourth Amendment wiggle room by allowing them to apply for court authorization of domestic spying a short time after the spying has taken place, in the case of a perceived emergency threat to public safety.
But the Bush-era domestic spying program did not even abide by those loosened rules, authorizing wiretaps on domestic phone lines in multiple cases without even the lower level of judicial oversight FISA requires. And under the Bush administration's direction, federal investigators weren't just spying on American branches of Saudi Arabian charities, or Americans with suspected ties to foreign terrorists. Under Bush, the NSA spied on American journalists. The FBI also spied on American journalists. The NSA spied on (or attempted to spy on) members of Congress. In fact, the FBI was at one point publicly authorized to spy on any American citizen "whose character may make them attractive targets for terrorism."
Though this ruling only technically applies to the Al-Haramain case, its obvious broader implication is that all of the domestic warrantless wiretapping under President Bush was illegal. And that's good news for fans of the rule of law and the Bill of Rights.
It remains to be seen whether the Obama-era Justice Department, which inherited this case from the Bush Administration, will appeal the judge's decision. The New York Times has an interesting analysis of why President Obama and Attorney General Eric Holder may want to appeal this ruling even if they are against continuing Bush's wiretapping policy (which Holder publicly called illegal even before this ruling). In short, a higher court ruling in the same fashion would create a more binding legal precedent, which might help prevent federal investigators from returning to Bush-era tactics in the future.
New York District Court Judge Rules Natural Genes Cannot Be Patented
If you don't already know about the gene patent controversy, this may sound incredible, but for the past several years, as financial interest in genetic testing and gene therapy has spiked, biotech companies have been applying for -- and in some cases, receiving -- patents to genes that already exist inside your body.
I'm not talking about a company creating a new gene out of DNA code and then applying for a patent for their unique genetic creation. I am not even talking about companies that take a gene out of one organism and move it to another organism to create a new hybrid (like, say, corn that makes its own pesticides, or kittens that glow in the dark), and then apply for a patent for their tasty and/or adorable GMO Frankensteins. In both of those situations, one might reasonably argue that the company is creating something new with DNA that did not previously exist in nature.
I'm talking about patents like those filed by a company called Myriad Genetics, which successfully managed to patent two naturally occurring, common human genes: BRCA1 and BRCA2 -- gene variants that cause breast and ovarian cancer.
These patents can present serious obstacles to competitive scientific research on human diseases, and even cause legal and financial problems for the real human beings who carry the genes. Because of Myriad's patents, researchers studying tests and cures for cancers related to BRCA1 and BRCA2 have had to ask Myriad's permission to conduct their work. As long as Myriad has a patent on those genes, Myriad has the power to charge organizations or scientists for studying them, or to prevent study from taking place at all. And American women seeking a test to find out whether or not they carry one of the BRCA genes that can predispose them to cancer have only one choice -- they must take the test offered by Myriad, which costs thousands of dollars. There is currently no competition, and no source for a second opinion.
The ACLU filed suit against Myriad in May 2009, on behalf of breast cancer patients, carriers of the BRCA genes, and cancer research scientists. And just a few days ago, Judge Robert W. Sweet of the U.S. District Court for the Southern District of New York ruled that existing human genes, as a product of nature, are not patentable.
Currently, nearly 20 percent of the natural human genome is patented by various companies and organizations. That's 20 percent of your DNA, the DNA inside your body, that corporate entities currently claim to own.
If Judge Sweet's ruling stands up to appeal, ACLU v. Myriad could change all that -- permanently settling America's ethical and legal debate over who owns the human genetic code definitively on the side of the living, breathing people who carry those genes.
And thousands of women at risk for breast cancer would finally be able to get a second opinion on their BRCA test results
D.C. Federal Appeals Court Rules that FCC Does Not Have Authority to Enforce Net Neutrality
In 2008, when behemoth internet service provider Comcast was caught prioritizing some types of internet traffic over others -- actually deliberately, secretly preventing their customers from having reliable access to a particular online service, BitTorrent -- the Federal Communications Commission ordered Comcast to stop deliberately interfering with their customers' access to certain sites. The FCC cited a principle known as net neutrality.
On Tuesday, a federal appeals court ruled that the FCC does not have the authority, under current law, to insist that internet service providers provide their customers with equal access to all types of internet traffic.
According to this ruling, an internet service provider like Comcast could theoretically choose to, say, make video on Hulu run faster for their customers than video on YouTube, in exchange for a payment from Hulu. Or they could make newspaper websites load more quickly than websites belonging to bloggers. They could even, in theory, make consumer complaint websites with complaints about Comcast service load slowly for their customers, or not at all.
This ruling endangers the current democratic nature of the internet by essentially authorizing internet service providers to limit the content that their customers are able to see. But the FCC has not given up yet on the net neutrality fight; the FCC may be able to tighten their own existing regulations on communications services to make sure that internet regulation is possible; they also may petition Congress to pass a law granting them greater authority to regulate internet services in the same way they currently regulate television and radio communications.
As a political blogger who relies on net neutrality both to compete with multimillion dollar news organizations for readers and to prevent my criticism of corporate and political entities from being blocked by my readers' ISPs, I hope the FCC eventually prevails on this issue.
Recent Comments