By Nathan Goetting, Editor-in-Chief
Right-wing pushback against the gains of the civil rights movement has always been powerful, but with the ascension of Donald Trump to the presidency, it has become unprecedentedly aggressive and malicious. White supremacists have been emboldened by this president. Near the top of his administration’s target list of civil rights reversals is race-based affirmative action in higher education. In “From Dog-Whistle to Megaphone: The Trump Regime’s Cynical Assault on Affirmative Action” Mark Brodin attacks the motives and methods of the latest, most brazen attempt to keep minority applicants disadvantaged in the higher education application process.
Justice Blackmun couldn’t have fully appreciated the damage to the right to privacy he would cause in 1979 when he wrote the opinion for the Supreme Court in Smith v. Maryland.1 However, we shouldn’t be too easy on him or his colleagues. Modest grants of power to law enforcement in Fourth Amendment cases are nearly always expanded into the broadest possible license to reach into the personal lives of citizens.
In Smith Justice Blackmun reasoned that when we disclose who we call to a third-party (the phone company whose services we’re using) we have forfeited any Fourth Amendment privacy interest we might have had in that information. Smith opened the door for police to partner with communications providers to capture, collect, and store what we now call “metadata”—records of who we call and are called by, when the calls take place, and for how long—without probable cause of criminal wrongdoing.
Smith was wrongly decided for many reasons.2 Technology has advanced so rapidly and dramatically since Smith that the ancient device at issue in that case (a “pen register”) is as obsolete as Blackmun’s opinion authorizing its use. Smith has become the core legal basis for a massive surveillance state apparatus. Now police use “stingrays”—portable phone trackers that divert signals from cellphones and soak up the information they contain. As an investigative tool, stingrays are infinitely more handy, powerful, and intrusive than anything imagined in the 1970s. Along with metadata, they can provide police with the location of the cell phone and the content of its communications, such as conversations and text messages, though a warrant is still required before capturing communicative content. In “Stingrays” Joshua Dansby explains how Smith has been misconstrued so as to permit the widespread use of this new intrusive technology. Dansby proposes a number of methods for preserving our privacy. His article could hardly be timelier. This year, the Court will be considering Carpenter v. U.S.,3 which will finally force a reconsideration of an increasingly dangerous holding in Smith.
In “Will Koreans Count This Time?” William S. Geimer examines the alarming bellicosity between the Trump administration and North Korea within the much-needed context of the U.S.’s historical role as an imperial power during and after the Korean War. Though too dangerous for consideration, it seems, in corporate media and elite academic periodicals, his modest proposal is this: Why not let Koreans, north and south, take the lead in determining their own fate?
“An Algorithm for Capturing White HeteroPatriarchy: The Parable of the Woman Caught in Adultery” by Blanche Cook thoughtfully deploys a biblical tale to expose and explain how certain forms of hegemonic power function in the U.S. One needn’t be a believer to recognize the truths. Originally delivered as a TEDx talk, Professor Cook’s interpretation of the New Testament tale is as fascinating as it is liberating.
Sarah Davila-Ruhaak is doing extraordinary humanitarian legal work on behalf of some of the most vulnerable and oppressed people on earth. She is the Director of the International Human Rights Clinic at The John Marshall Law School in Chicago where she leads the Human Rights for Syrians Initiative (HRSI). In “The Sprouting of Human Rights Initiatives in the Midst of a Storm of Resistance to Refugees” she assesses the legal, political, and social plight of the luckless civilians fleeing for their lives from one of the world’s most perilous warzones. It also details the extraordinary work HRSI is doing to help Syrians who have escaped to the U.S. adjust to life in their new country.
NLGR asked renowned human rights attorney and law professor Natsu Taylor Saito, an expert on harmful effects of colonization, if she’d contribute an essay on the threats connected with the contempt for science and nature shown by various Trump appointees leading executive branch regulatory agencies. She responded with a poem titled “Denial,” which we’re proud to print.
—Nathan Goetting, editor in chief
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- 442 U.S. 735 (1979).
- Rebutting the Court’s wrongheaded reasoning—which suggests that the mere act of using a telephone (a prerequisite for inclusion in modern society) implies the forfeiture of privacy rights to significant amounts of personal information—is beyond the scope of this preface. However, I recommend the reader consider the persuasive dissents in this case written by Justices Stewart and Marshall.