On July 14, the House of Representatives passed the Sunshine Protection Act (“SPA”) by a vote of 308 to 117. The bill would abolish the twice-yearly clock change by imposing Daylight Saving Time (“DST”) year-round, nationwide. President Trump has promised to sign it. Thankfully, it has stalled in the Senate, where it has met opposition, including Senator Tom Cotton of Arkansas who, warning the bill would “push winter sunrises to an absurdly late hour,” has urged leadership not to bring it to the floor.

Good. Because before this bill goes any further, its proponents should be made to answer a question they have so far dodged: why should the clock be set away from the sun in the first place?

Standard time isn’t an arbitrary convention. It is calibrated, roughly, to solar noon, the moment the sun is highest in the sky. It’s the baseline, the clock’s honest report of where the sun is. DST is the deviation: a government-mandated, deliberate misstatement of solar time. The burden of proof therefore rests on those who want the deviation at all — much less to make it permanent, including in the dead of winter, when mornings are darkest.

Tellingly, the bill’s drafters and supporters, unable to meet their burden of proof, resort to a familiar repertoire of fallacies.

First, the bill’s drafters tried to define the problem away. The SPA doesn’t merely extend DST; its text declares DST to be the new “standard time.” That’s not reform. That’s remaking the ruler to sanction deliberate bias in measurement.

Second, reliance on opinion polls. Yes, majorities say they hate changing their clocks. But “should we stop the switching” is a different question from “which time convention should be permanent,” and the bill’s supporters routinely conflate the two. When pollsters force the choice, the country splits more evenly. Moreover, stated preferences for “daylight” time, it turns out, don’t survive many long, dark winter mornings.

We know, because we already ran this experiment. In 1974, responding to the energy crisis, Congress imposed nationwide permanent DST. Public support stood at 79 percent when the law took effect. Within a couple months — after a January of pitch-dark school bus stops, sleepy-eyed commutes, and reports of children struck by cars in the morning blackness — support collapsed to 42 percent. Congress repealed the scheme before the next winter. The people who assure us today that Americans will love permanent DST are asking us to believe that, somehow, it will be different this time.

Third, the name-calling. DST-skeptics are dismissed as fusspots and luddites thwarting an “extra hour” of sunshine. But there is no extra sunshine. Congress cannot legislate longer days any more than it can repeal winter. Every minute of evening light the SPA “protects” is a minute confiscated from the morning. The Sunshine Protection Act protects zero minutes of sunshine; it only moves them — and the bill’s name is designed to obscure where they came from.

Fourth and silliest, the wishful thinking. Confronted with the health and safety costs of dark winter mornings, proponents breezily reply that everyone can simply adjust — shift schedules, wake later, start school later. Set aside that no individual can “adjust” alone: your schedule is chained to your employer’s, your children’s schools, the market’s opening bell. Notice instead what the argument concedes. If everyone shifted their schedules an hour later, activity would simply re-anchor to the sun, and the cherished “extra evening hour” would evaporate. The clock numbers would change; life, in the long term, would not. At which point — one has to ask — would DST’s champions demand yet another hour? Argue about this topic long enough, and you learn that the argument was never about the clock.

Daylight is a form of wealth. Morning sunlight, in particular, is an asset for human health: it synchronizes the human circadian clock, which is why the American Academy of Sleep Medicine and allied scientific bodies endorse permanent standard time, not permanent DST. Researchers have observed worse health outcomes, from sleep deficits to elevated disease rates, on the western edges of time zones, where clock time strays furthest from solar time. Morning light is also an asset for safety: for children at bus stops, workers on the early shift, and commuters on icy roads.

The SPA is a scheme to redistribute that wealth, from the people least able to “adjust” — schoolchildren, tradesmen, nurses, anyone whose day starts early and isn’t negotiable — to evening industries that have lobbied for DST expansions for decades. When Congress extended DST in 1986, the golf industry alone projected a windfall in the hundreds of millions, and retailers and convenience stores cheered alongside. The other windfall recipients are those who prefer evening light and are willing to trade their health for it — many without ever being aware there is a trade-off, since the bill’s marketing insists the hour is free.

It isn’t free. Nothing government redistributes ever is.

Senator Cotton, last October, put the stakes plainly: permanent DST would “make winter a dark and dismal time for millions of Americans.” After the 2022 version of this bill slipped through the Senate due to a staff miscommunication, Cotton has vowed to oppose any bill making DST permanent. He should. As should his colleagues, of both parties.

Let’s end the biannual clock change. But let’s end it in the only direction the sun, the science, and recent history endorse: permanent standard time. The clock should tell the truth about where the sun is. Congress can’t “protect” sunshine — it can only redistribute it from your morning to someone else’s evening. Until Congress can advance permanent standard time legislation, it should leave things as they are.

Related: “The Eleven-inch Foot,” about Congress’s (lack of) authority to regulate clock settings away from mean solar noon.

The Supreme Court held today in Chatrie v. United States that the government conducted a search within the meaning of the Fourth Amendment when it acquired digital records about the cell phone location of a man accused of robbing a bank. This means that police generally need a warrant to obtain your location information from a service provider like Google. But what this means for other types of private information or media held digitally by countless service providers we rely upon daily is all but clear.

At issue was whether law enforcement can use a “geofence warrant” to demand location information from Google about customers, here including Okello Chatrie, whose phones happened to be near a crime scene. The government’s answer: Yes, because once you share your location with Google, you have no Fourth Amendment interest in it and a warrant isn’t required anyway.

The Court disagreed. Privacy advocates are celebrating. But Justice Elena Kagan’s majority opinion missed the opportunity to declare that a person’s location data belongs to him, even if it is stored on the servers at a company like Google. The majority calls the records “his” freely, even likening them to Chatrie’s own emails and photos. What it refuses to do is let that ownership decide the case. And thus, the privacy test stays what it has been since 1967: whether “society” is prepared to recognize a person’s “expectation of privacy” as reasonable.


Read more (for free) at MS NOW

When you text your doctor, share your location with a rideshare app, or use your credit card at checkout, you aren’t broadcasting your private life to the world. You’re sharing specific information, for a specific purpose, with a specific party you’ve chosen to trust—usually under terms of service that promise to keep it confidential. You know this. Your service provider knows this. The only institution in America that pretends not to know this is the federal government, armed with a legal doctrine the Supreme Court erroneously expanded almost fifty years ago.

That doctrine is the third-party doctrine. The Court now has a chance to return it to its original and proper scope in the case Chatrie v. United States, which it is currently considering after oral argument last month. It should seize that chance.

Dragnet searches and Supreme Court precedent

In 2019, the government obtained a “geofence warrant”—a demand that Google hand over location data on every user whose phone happened to be near the scene of a bank robbery.

Not a suspect. Not a person connected to the crime by evidence. Every person in the area.

Google searched its entire Sensorvault database—hundreds of millions of accounts—and produced the results. Okello Chatrie was among them.

The government relied on the third-party doctrine to justify this dragnet search. The doctrine was dramatically expanded without justification in two 1970s cases, United States v. Miller and Smith v. Maryland. Their holding was disarming in its simplicity and devastating in its consequences: if you share information with a third party, you forfeit any “reasonable expectation of privacy” in that information. It doesn’t matter that you shared it for a limited purpose or that your service provider contractually promised to protect it. In the eyes of the law, you might as well have shouted it through a megaphone, from the highest mountaintop, on worldwide livestream.

This was always a dubious proposition, but in the digital age, it’s absurd. Your phone continuously communicates with cell towers. Your search queries exist in databases. Your emails and messages pass through servers. To claim that all of this information is fair game for warrantless government access simply because a service provider processes or stores it is to say that the Fourth Amendment has nothing to offer the twenty-first century.

Read the rest at the PLF blog.

“Swatting—a dangerous trend in which pranksters fabricate emergency reports to get SWAT teams or other law enforcement to descend on a victim’s home—has had deadly consequences. In 2020, a Tennessee man swatted for refusing to sell his Twitter handle died of a heart attack when heavily armed officers arrived at his house. In 2017, a Kansas man answering police on his front porch was fatally shot after a false report of a hostage situation. Even celebrities aren’t immune: twice this year, Gordon Ramsay’s Los Angeles home was swatted, most recently by a caller claiming he had shot two men—fortunately, Ramsay was out of the country at the time.

“Tragedies like these highlight a critical question: Should a simple call to emergency services be enough to justify sending heavily armed officers into someone’s home, or should stricter safeguards be required? The U.S. Supreme Court will weigh in on that issue when it hears Case v. Montana on October 15. Case centers on a Montana Supreme Court ruling allowing police to enter a home without a warrant under a ‘community caretaking’ exception to the Fourth Amendment.”

Read the rest here.

The Supreme Court begins a new term next week. In the coming months, the justices will consider cases touching nearly every corner of American life. Among the cases the Court is being asked to take up is one presenting an important question about digital privacy: can the government demand access to your location data from companies like Google without a warrant based on probable cause?

That question is at the heart of Chatrie v. United States. The case arises from a “geofence warrant” which let law enforcement sweep up information about everyone near the scene of a robbery—including many innocent bystanders. Pacific Legal Foundation filed a friend-of-the-court brief on behalf of an amicus client urging the Court to hear the case and restore crucial Fourth Amendment protections for the digital age.

Read more here.

Memorial Day

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We remember heroes who

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Died for our virtues

I couldn’t decide

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Between rhyming and Haiku.

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Is it versicide?

Last week I attended my first PLF all-staff retreat, which got me thinking of the long road I’ve taken between finishing law school and taking on a role working primarily as a lawyer. Hope you enjoy!

Long and winding is the road

On which I’ve traversed

Labels kind (and not so kind)

Garnered (or aspersed)

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Evolution, when it’s slow

Tries patience (and much more)

What matters in the end is

Reality keeps score

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Excellence is my lodestone

Clarity my muse

Ken of nothing more than these

Decimates the blues

"Six month" follow-up on the progress of what I am now calling my bionic neck. (Cervical fusion.) I was about a month and a week late with this visit, but since the initial part of my recovery was quite hellish, we'll say I was only fashionably late

All the hardware is still in place, and the PA says she sees the expected amount of bone growth, so the fusion is on track. (It usually takes a year for full fusion.) Disc spaces above and below look good, the same as previous, so that's on track, too.

Overall, she says I have an excellent chance of avoiding further surgery for ten years, and a good chance of avoiding further surgery altogether. She's sending me for PT to help that happen. (I'll be continuing HIT as well.)

A new, fancy bionic neck...if I can keep it, right?

*I have some niggling issues with swallowing (pills are a no-go), and I sometimes get sore with singing or too much loud speaking. But she said that swelling can also be an issue after this surgery for up to a year(!) In any event, I'll see an ENT soon for those issues. Long term, after the fusion is complete, she said they could remove that metal plate, which might do the trick and would be a minor procedure.

“Nice encryption there…

except we’ll need a back door.”

“What encryption? Where?”

(Inspired by Apple’s decision to pull its iCloud end-to-end encryption feature from the UK rather than install a back door. Reference: https://techcrunch.com/2025/02/21/apple-pulls-icloud-end-to-end-encryption-feature-for-uk-users-after-government-demanded-backdoor/)

As you can see, one roof panel broke as I was building the house, and so required a "fusion". You may have read earlier posts, including the most recent, in which I mention the cervical fusion I unfortunately had to undergo in July. The blue candies were the best I could do for titanium:

The second roof panel I decided to have some fun with, given the good turn that life took after the surgery: I was fortunate enough to be able to co-author an amicus brief in a geofence warrant case with a Senior Attorney from The Pacific Legal Foundation. Moreover, I will be joining PLF in late January as a Litigation Fellow! You heard it here first!

As always, thanks for reading. I hope you have a restorative week or so before the excitement of the New Year is upon us!

The NYT can no longer deny that they and their cronies in the MSM and Washington, DC have failed to recreate America according to their preferred narratives.

But that doesn’t mean *our* sense of the nation has changed. It’s their sense of their power to mold our beliefs that has changed.

So, they conclude, if they’re failing to mold our beliefs—then Trump must be doing it!

They simply cannot fathom that we as individuals can think for ourselves, that we can demand the right to do so, and that this is why so many of us voted for Trump.

Their loss. (Pun intended.)

Here’s the link, for those who didn’t follow me back in my Parler days:

https://www.newsweek.com/parler-amy-peikoff-says-tech-giants-use-1984-like-instruction-manual-1560730

Any politician or government official who suggests government force as the solution for “misinformation” should be required to read 1984 (again).

Or maybe brush up on their introductory logic. The appeal to force, or as Aristotle called it, “argumentum ad baculum,” is a LOGICAL FALLACY!

Sorry for the all caps, but wow, do our politicians and government officials really think they can be “unburdened by what has been” or “turn a page” on the facts of reality?

BREAKING: It is not possible to escape the facts of reality by censoring those who recognize and share them.

Can someone educate the Aussie officials, please?

Whether the continuation of programs pursuant to Section 702 of FISA in any form would provide Americans significant protection from foreign threats is open to debate. What is not open to debate is that, at least as currently authorized, Section 702 of FISA is a blatant violation of Americans’ rights under the Fourth Amendment. In particular, the warrantless collection, storage, and querying of Americans’ communications pursuant to this program is premised on the so-called “third-party doctrine,” which was recently called into question in Carpenter v. United States. Further, careful examination of that doctrine’s history shows that our Supreme Court took a wrong turn in the infamous 1970s cases, Smith and Miller. This historical understanding calls into question the entire edifice upon which all government warrantless surveillance programs have been built in the decades since.

In a nutshell, I believe the SAFE Act:

1. Fails to restore the full Fourth Amendment protections that all Americans, in justice, deserve. Not only would it permit the warrantless collection and storage of Americans’ communications to continue unabated, but the warrant requirement for queries would come in to play only after a query returned a positive result. Here's an excerpt from the section-by-section summary provided by the Senate Committee on the Judiciary:

2. May in fact be worse than the status quo, because it would implement a hierarchy of protections whereby those in politics and the media would get the highest level of protection from abusive database queries, followed by those involved in religious groups, with the average “US Person” receiving only the barest level of additional protection. I believe that, if anything, our elected officials should expect to have less privacy than the average American, because they work for us. And yet the SAFE Act would create a heightened level of protection for them. Here's the relevant excerpt:

Moreover, as Matthew Guariglia and Andrew Crocker over at EFF have pointed out:

Unfortunately, the SAFE Act contains at least one truly nasty addition to current law: an entirely new crime that makes it a felony to disclose “the existence of an application” for foreign intelligence surveillance or any of the application’s contents. In addition to explicitly adding to the existing penalties in the Espionage Act—itself highly controversial— this new provision seems aimed at discouraging leaks by increasing the potential sentence to eight years in prison. There is no requirement that prosecutors show that the disclosure harmed national security, nor any consideration of the public interest. Under the present climate, there’s simply no reason to give prosecutors even more tools like this one to punish whistleblowers who are seen as going through improper channels.

https://www.eff.org/deeplinks/2024/03/safe-act-two-steps-forward-one-step-back

3.  Finally, the SAFE Act does not go far enough in addressing the unconstitutional practice known as the “data broker loophole,” under which our government uses tax dollars to purchase private information about us from data brokers. By codifying and not fully closing this "loophole," the SAFE Act may inadvertently legitimize the very sort of practice that Congress should be prohibiting. No one using his Starbucks card (or similar) believes he is consenting to Bentham's Panopticon.

Accordingly, at a minimum, I would like to see an amendment to the SAFE Act, or a separate legislative proposal, addressing the above concerns.

In particular, I would suggest an amendment or bill that:

1. Instituted a blanket warrant requirement to collect, store, or query communications of any US Person. (A FISA Title I order would be an acceptable alternative for a warrant insofar as it requires involvement in some form of illegal activity.) Equality before the law regardless of profession or religious affiliation, and full restoration of Americans’ Fourth Amendment rights.

2. Closed the “data broker loophole” entirely by requiring government to obtain either consent from the subject of inquiry or investigation, or a warrant based on probable cause and particularized suspicion, before obtaining any non-public data about Americans.

(Traditional warrant requirement exceptions would apply to both of the above.)

3. Ensured that no new avenues are created for punishing whistleblowers. There is every reason to believe that, even with the addition of new safeguards, the abuses will continue. We deserve to know about them, and those who expose them deserve rewards, not punishments.

So far, with the exception of the EFF, the reception for the SAFE Act has been generally positive. Some seem to think this compromise bill is about the best we can expect in today's political climate. But I can't help but wonder whether the special protections the Act affords to the political class, media organizations, and religious organizations, are designed to get buy-in from those who could help influence the bill's passage.

Your thoughts?

In December, Congress rushed through a National Defense Authorization Act which included a short-term reauthorization of Section 702 of the FISA Amendments Act of 2008. Section 702 permits warrantless interception, collection, storage, and searching of communications related to “foreign intelligence information.” At the time, Senator Mike Lee warned that the reauthorization, although set to expire next month, would permit the program to continue until April 2025. It seems he was right.

Last month, when the House was considering a new package for reforming Section 702, heated debate broke out over whether a warrant should be required to search the vast database of communications collected pursuant to the program. Republican House Speaker Mike Johnson abruptly postponed consideration of the bill, his spokesman tweeting, “In order to allow Congress more time to reach consensus on how best to reform FISA and Section 702 while maintaining the integrity of our critical national security programs, the House will consider the reform and reauthorization bill at a later date.” Judging by the bill then under consideration, the integrity of our critical national security programs requires not only warrantless collection of innocent Americans’ communications into a vast database, but also warrantless searches of that database. The proposed reforms were merely window dressing, limiting the number of FBI personnel who could query the database and providing more “oversight” of the process. 

One might think that the continuation of a controversial bulk warrantless surveillance program, without the express authorization of a representative legislative body, would be contrary to our country’s founding principles. But Section 702 provides for just such a loophole, allowing the program to continue during the duration of annual orders from the court, even if the underlying statutory authorization has expired. Assistant Attorney General for National Security Matthew Olsen stated that the Justice Department’s request was consistent with “standard annual practice” and was necessary to avoid a “dangerous gap in collection.” But should this be “standard annual practice”? Now, nearly eleven years after Edward Snowden’s revelations in spring of 2013, many Americans have come to believe that the “gap in collection” should in fact be a complete discontinuation of this immoral and unconstitutional program.

No longer subdued by the pablum that if they have nothing to hide, they shouldn’t be concerned about invasions of their privacy, many Americans realize that there is something very wrong with allowing our government to vacuum up our communications and store them indefinitely in a vast database, ready and available for government agents to search at any time—all without probable cause or particularized suspicion. While the recent contentious debate in Congress was over whether a warrant should be required to search the database, there is good reason to object to warrantless collection and storage of the communications as well.

To understand why even collection and storage under Section 702 should require a warrant, we must examine the constitutional legal doctrine on which bulk warrantless surveillance programs have rested for decades: the “third-party doctrine.” This doctrine, as expanded by the Supreme Court in the 1970s, denies Fourth Amendment protection to any information shared with “third parties,” such as your telephone company, bank, or email service provider. No warrant is required when government obtains that information, even if the sharing is only for the purpose of receiving services pursuant to an ordinary legal contract. 

Prior to the Supreme Court’s rulings in Smith and Miller, the doctrine was applied only when the information had been shared with a third party as part of a criminal endeavor—involving what the common law would have referred to as an “illegal contract.” In a 2014 law review article, I examined this history, distinguishing the “reasonable expectation of privacy” you and I have when we share information with, e.g., our cellular service provider, from the expectation a Tony Soprano might have when he shares information with a criminal co-conspirator. I concluded that the Supreme Court had gotten it wrong: our expectations of privacy when we share information with third parties should be respected, and the Fourth Amendment’s warrant requirement should apply when government obtains that information.

Returning now to Section 702, we can see how the issue goes beyond what some refer to as “accidental collection”, collection of conversations exclusively between Americans. I submit that government should not be collecting any American’s side of any conversation—even explicitly authorized “incidental collection” of Americans’ conversations with foreign persons located abroad—on the basis of the targeting standard of Section 702. That standard explicitly permits surveillance of “any foreign person located abroad who is believed to possess ‘foreign intelligence information.’” “Foreign intelligence information” is a notoriously broad concept which is apparently so vital to our national security that its definition is secret. Set aside for now the question whether targeting anyone according to this standard is morally justified. Should an American be deemed to have relinquished his or her reasonable expectation of privacy, simply for communicating with a person who has been so targeted?

In my view, a proper reform of Section 702 would require not only a warrant to search the program’s database, but also a warrant to collect and store any American’s side of any communication. It’s disheartening that those who have sworn an oath to uphold the Constitution, those with the power to reform this unconstitutional program, seem resigned to allowing it to continue for another year. Rumor has it that there aren’t enough votes for a warrant requirement, even to search the database. But we can’t know for sure, as our elected representatives have chosen the cowardly, well-worn path of concealing their true position by attaching a program to a “must-pass” piece of legislation, hoping to avoid accountability for just one more election cycle.  

The laws’ proponents argue that they are necessary to protect the First Amendment rights of users—particularly those of conservative users. Ken Paxton, Texas’s attorney general, refers to social media as “the world’s largest telecommunications platforms” and the Texas law, he argues, “just enables voluntary communication…between speakers who want so speak and listeners who want to listen.” NetChoice, which is challenging both laws, argues that the First Amendment protects users against only government censorship, that so long as the platforms are making decisions purely as private companies and not as state actors, they are not violating any free speech rights of their users when they throttle or remove content.

It is the First Amendment rights of the platforms, NetChoice argues, that are impacted by the legislation:

Just as Florida may not tell The New York Times what opinion pieces to publish or Fox News what interviews to air, it may not tell Facebook and YouTube what content to disseminate. When it comes to disseminating speech, decisions about what messages to include and exclude are for private parties—not the government—to make.

In addition, NetChoice argues, the laws run afoul of the First Amendment in a second way: the laws’ compelled disclosures are “unduly burdensome,” would “chill[] protected speech,” and therefore do not fall under a narrow First Amendment exception carved out for compelled commercial disclosures of “purely factual and uncontroversial information.” The 11^th Circuit agreed, finding that Florida’s mandated disclosures, to be enforced by means of steep fines, were likely to chill “platforms’ exercise of editorial judgment.”

So far so good. I agree that platforms have First Amendment rights, just as do The New York Times and Fox News. And I agree that these rights should not be infringed by state laws. But there’s one problem: when The New York Times and Fox News exercise their “editorial judgment” in deciding “what messages to include and exclude,” they are unable to rely upon the broad immunity from liability enjoyed by social media platforms under Section 230 of the Communications Decency Act. If the message a newspaper editor or television producer decides to disseminate happens to defame someone, their employer can be held liable in civil litigation.

Thanks to Section 230, platforms enjoy not only the same First Amendment rights as everyone else, but also legal immunity for their exercise of “editorial judgment” in the removal or amplification of content. At the same time, Section 230 ensures that liability for any “messages” they decide to “include”—or even amplify—rests squarely on the users who “generated” them. If only our “expressive activities,” as the U.S. Solicitor General called them, were given equal treatment! As it stands, Section 230 grants blanket immunity for platforms’ removal of content, even content protected by the First Amendment. It’s true that, so long as there’s no state action involved, those harmed by a platform’s removal or amplification decisions still enjoy their First Amendment rights. But they are almost always left without the legal recourse to which they would be entitled were their injuries caused by The New York Times or Fox News (just ask Dominion Voting Systems).

Justice Neil Gorsuch gets me. Today he told Paul Clement, who represented NetChoice and another trade group challenging the laws, that he perceived “a tension between the idea that a tech company can’t be held liable for its users’ speech and the idea that moderating that content is the tech company’s speech. Is it speech for purposes of the First Amendment, he asked, but not for purposes of Section 230?”

NetChoice is correct in challenging these unconstitutional Florida and Texas laws. Two wrongs don’t make a right, and the solution to Section 230’s negative externalities isn’t the utter denial of platforms’ First Amendment rights, any more than the solution to racism is affirmative action. That’s why I invite NetChoice (and everyone else) to join me and my colleague Jeffrey Wernick in our call to eliminate “platform privilege” at its root: amend Section 230 to allow for potential legal liability when a platform’s “expressive activity” modifies the reach of user-generated content in relation to other content.  Unless and until we do that, our government will continue to invent new ways to use our tax dollars to exploit platforms’ liability loophole in service of its chosen narratives.