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Forced apology shows the colleges foremost interest is its public perception

As far as meaningful apologies go, this is one of the best ones Ive seen from a college.

Arizonas Maricopa County Community College District not only apologized for trampling on the academic freedom of a Scottsdale Community College professor, but promised an immediate independent investigation into its handling of the situation.

Its also creating a Committee on Academic Freedom to ensure that the districts longstanding commitment to the value of inclusion does not come at the expense of academic freedom.

The Monday announcement from interim Chancellor Steven Gonzales came four days after the Foundation for Individual Rights in Education warned SCC that its actions were flatly inconsistent with its First Amendment obligations and would chill faculty expression.

Nicholas Damask, chair of the political science department, teaches a world politics class that includes a module called Islamic Terrorism. Three quiz questions in the module asked whom terrorists strive to emulate, which Islamic verses encourage terrorism, and when terrorism is justified in Islam, according to FIREs letter.

A student complained to Damask that the questions were in distaste of Islam and didnt accept his explanation of the legitimacy of the quiz questions. Soon the same complaint had been shared online and SCCs Instagram account started getting bombarded with complaints about the quiz.

In an Instagram post that has since been removed but remains archived, interim SCC President Chris Haines not only agreed that the quiz questions were inaccurate, inappropriate, and not reflective of the inclusive nature of our college, but said Damask will be apologizing to the offended student.

The college was also permanently banning those questions from future quizzes. Haines implied they violated the colleges nondiscrimination policy.

We applaud the student for bringing this to our attention and encourage any student or employee to speak out when offended by quiz questions, Haines said. (Side note: Please use Archive.Today to document online posts you think may be removed. Haines post does not display on the most popular archive service despite being saved more than 200 times in a single day.)

MORE: UCLA censors book on Islamic Totalitarianism at free speech event

Not only did Damasks dean tell him the districts governing board was reviewing the matter, and that a leader in the Islamic faith would now be screening his course content, but the college refused to tell a local newspaper if the professor was facing discipline. (Investigating protected speech by itself can violate the First Amendment, nevermind issuing sanctions at the end of the investigation.)

Damask left these calls [with Dean of Instruction Kathleen Iudicello] feeling that his job security was in jeopardy, FIRE program officer Katlyn Patton wrote to President Haines.

As for that apology that the president promised? Marketing and Public Relations Manager Eric Sells wrote it, sent it to multiple administrators and warned that senior leadership would probably want to review it. The draft apology pledged, in Damasks name, to ensure theres no additional insensitivities in course material. (Sells grammar is incorrect here.)

The college committed the trifecta of censorship with this course of action, violating not only the First Amendment and core tenets of academic freedom but also state law protecting faculty against compelled expression of a particular view,Patton wrote. She reminded Haines that the district already paid a six-figure settlement in the past year to resolve a First Amendment lawsuit brought by faculty.

(The settlements mandated training on freedom of expression and academic freedom apparently didnt work, which is too bad, because those are explicit conditions of its accreditation.)

Patton warned the president that she doesnt want to litigate this, because the 9th U.S. Circuit Court of Appeals (whose rulings are binding on SCC) has already exempted academic freedom from a precedent that lets employers regulate employee speech pursuant to their official duties. That 2014 ruling went even further than Damasks quiz, protecting speech related to scholarship orteaching.

SCCs ludicrous overreaction to the quiz questions sets a dangerous precedent for Damasks entire department, Patton wrote:

Further, the study of political scienceand particularly world politics and terrorismwill almost inevitably venture into sometimes-uncomfortable territory and include topics on which many students will have both varying and deeply-held beliefs. That students may experience discomfort, and even anger, in the course of their studies should have no bearing on a professors right to select relevant materials and test students on their knowledge of those materials as they see fit. The students in Damasks class are adults in a college-level course and should be treated as such.

MORE: Six-figure settlement with student punished for Islamic terrorist spoof

The forced apology is a stark admission that the colleges foremost interest is its public perception, which it has shamefully elevated above the well-established expressive and academic freedom rights of its students and faculty, Patton concluded. (FIREs blog post Monday gives no suggestion the college responded by its May 8 deadline.)

Mondays announcement from Chancellor Gonzales left out names and other details of the dispute, but made clear that the quiz questions were taken out of context and their subject was within the scope of the course. Some people even made threats against the unnamed professor.

Gonzales said he was troubled by what appears to be a rush to judgement in how the college responded to the controversy, including by violating its own policy and procedure:

I apologize, personally, and on behalf of the Maricopa Community Colleges, for the uneven manner in which this was handled and for our lack of full consideration for our professors right of academic freedom.

Perhaps alluding to FIREs warning that an investigation itself can trigger legal liability, the chancellor cleared up misinformation that the districts governing board was investigating the professor or might be planning to. Damask is not in jeopardy of losing his position.

As for the academic freedom committee, its members will be identified by the end of the week, he said. Their task is to champion academic freedom education and training and to resolve academic freedom disputes in the hope of ensuring this fundamental academic value is better understood and realized alongside our longstanding commitment to the value of inclusion.

If theres one thing folks like FIRE can tell you, however, its that promises made in the midst of a PR disaster can go unfulfilled if the public loses interest. The first test of the districts commitment will be whom it appoints to the new committee, and the second will be its transparency with the results of the independent investigation.

MORE: American university punishes prof for refusing to proselytize Islam

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Public college backs off threat to censor professor's course on Islamist violence after legal warning - The College Fix

The British magazine was extremely popular with readers but not with the Irish censor. Its portraits of ireland are timeless, however

In his memoir thelong-time editor of the Irish Press Tim Pat Coogan recalls a story that the firms controlling director, Vivion de Valera, once told him.

It concerned Vivions schooldays at Blackrock College and how he had once been summoned to the college presidents office. There, the future Catholic archbishop of Dublin John Charles McQuaid instructed Vivion to review a pile of newspaper cuttings of full-page adverts for Clearys department store. The adverts, Coogan recounts, included small line drawings of women modelling underwear of a design which reflected the modest standards of the Ireland of that era. To the somewhat baffled Vivion, McQuaid pointed out the insidious immorality of the drawings. Some of them, if one used a magnifying glass, indicated the outline of a mons veneris.

The hint was duly delivered by Vivion to his father, amon de Valera, then taoiseach and controlling director of the Irish Press. But ecclesiastical policing of the press extended beyond Irish newspapers: the presence of undesirable British newspapers, particularly the hugely popular Picture Post, represented a contagion of immorality, indecency and obscenity.

Published in London as a photojournalismmagazine between 1938 and 1957, it sold more than 1.5 million copies a week, and quickly attracted the ire of Irish clerics because of what the magazines historian David J Marcou has called the vitality, humour, and pathos of its reflections and dreams, as well as the intelligence of its layouts and interests.

The human interest aspect of its photoessays covered everything from swimwear contests to urban life, crime and art and would lead the Picture Post to be the most frequently banned British publication in Ireland. Less than three months after its launch came the first complaint to the censorship of publications board. In February 1939 the Rev JA Twomey protested against the indecent and suggestive pictorial matter contained in several editions of the Picture Post, which has a wide sale in each week in Cork.

The following month brought a letter from the Rev MJ Hennelly of Tuam, who lodged an official complaint with the censorship board on the grounds that the magazine was indecent and obscene. It seems that photographs of art were the source of this objection, with Hennelly declaring that such images may be alright for the art-lover, but for the ordinary boy and girl they are abominably suggestive.

But for a publication to be banned it had to be found to have been indecent or obscene over several sequential issues;isolated instances could not be punished. In an attempt to demonstrate the sequential indecency of the magazine, John Charles McQuaid, while still president of Blackrock College, lodged a lengthy and detailed official complaint with the censorship board. He alleged that obscenity and indecency had occurred 12 times in the issue of January 21st, 1939; eight times in the edition of January 28th; six times in the February 4th edition; 12 times in the February 11th edition; and eight times in the February 25th edition.

Among the items that McQuaid objected to in the latter two editions were a photograph of a woman model in a swimsuit; a photograph showing the lower legs of women roller-skaters; photographs of statues of the female form at Crystal Palace in London; photographs of women mud wrestlers; and a photograph of a painting of a nude woman sleeping on a couch.

Despite McQuaids complaint the magazine was not banned, though Picture Post was obviously informed of Irish sensitivities as it voluntarily removed two pages Painters of Paris from an April 1939 edition. Despite this attempt at sanitising the magazine for Irish readers, complaints continued.

In October 1939, Ellie Kelly, a Dublin newsagent, complained that the magazine had a huge circulation in the city and noted that its terrible to think this awful filth is in a Christian country. She also recorded how she had refused to stock the magazine and had refereed it to the priests of the parish.

Those priests would no doubt have been aghast at the description of Ireland in the November 4th edition. Drawing on his time in Dublin earlier in the decade, Orson Welles declared that censorship of books and controlled education have produced a crop of young men as blankly ignorant of the modern world as if they lived in the thirteenth century, mentally concentrated upon the idea of bringing the Protestant North under Catholic control in the sacred name of national unity.

Referring to the IRAs bombing of Coventry the previous August, Welles asserted that the attack had been carried out by young priest-taught men who purify their souls at mass and confession before they leave a bomb in a London underground station.

Describing the Catholic Church as that clumsy system of frustration, that strange compendium of ancient traditions and habit systems, he declared it as the most formidable single antagonist in the way of human adjustment.

Unsurprisingly, complaints flooded into the censorship board: one letter described it as nothing short of a national scandal that such journals should be allowed to enter Irish homes; another described Welless article as highly blasphemous; yet another described Picture Post as not fit reading for the family in our Catholic state.

The Rev Thomas Burke from Connemara asked: in the name of God and Ireland, why has this indecent, blasphemous production even been allowed to enter this country? He hastened to add that the edition that he had read was given to me recently by a friend.

Official complaints also flowed in, with Francis OReilly, secretary of the Catholic Truth Society of Ireland, itemising content from four sequential editions as being indecent or obscene. Similarly, McQuaid lodged an official complaint itemising content from three sequential editions as indecent or obscene. On this occasion, Picture Post was, on the advice of the censorship board, banned by the minister for justice, Gerry Boland, for three months.

The date of the ban was December 16th, 1939, but, at the request of the magazines distributor, Eason and Sons, the justice department held back publishing the official notice in the government gazette, Iris Oifigiuil. This allowed Easons to distribute the edition of December 20th, 1939, which had already arrived in Ireland. However, a request that the December 27th edition 26,000 copies of which were in Liverpool awaiting dispatch to Dublin be allowed to circulate in the State, subject to the justice department clearing its content, was denied.

The ban prompted a rare protest from members of the public. In January 1940 a petition signed by 35 people from Waterford, Kilkenny, Louth and Dublin was sent to the censorship board. Describing Picture Post as one of the most human, impartial, and democratic papers recently circulating in Eire, the petition argued that an occasional representation of nudity or semi-nudity, in a periodical which aims at giving a comprehensive view of modern life, does not constitute a general tendency to indecency. It concluded by noting that any action whose chief effect is to hinder the free circulation of varying opinions is detrimental to the moral and intellectual interests of the country.

The three-month ban expired at the end of March 1940 and in an attempt to mend fences Picture Post decided to do a special issue The Story of Ireland in July 1940. Writing to taoiseach amon de Valera, editor Tom Hopkinson noted that the special issue tried to treat the whole subject in a way that would be at once friendly and impartial.

However, as if to prove the maxim no good deed goes unpunished, the issue was immediately banned under wartime censorship regulations. It had unfortunately referred to a news item that the censorship authorities had prohibited Irish newspapers from revealing:the capture of a boat off the Irish coast containing two Germans and a cargo of explosives.

Subsequent complaints by members of the public to the censorship board centred on adverts that one reader viewed as selling filthy contraceptives. Despite this, Picture Post continued to circulate in Ireland. Writing a profile of the state for New Statesman in 1941, Elizabeth Bowen noted that English newspapers and periodicals can be obtained on order. Picture Post is in constant demand.

In its final years it was banned numerous times: between July 1948 and June 1956 it was banned no fewer than 10 times, with each ban being lifted on appeal or following assurances given the censorship board. But perhaps Picture Post had the last laugh. Its January 1957 edition carried a feature, This is Ireland, in which it noted that the most delightful thing about Ireland is that in many ways it is foreign, but it is still British in quite a few others... You can understand the language unless the peasants talk Gaelic at you; the pubs are open all hours and the churches are crammed full on Sundays.

The visitor also took delight in the native sport of hurley, a dashing form of hockey, and the fact that nobody is really expected to be strictly on time for an appointment.

Five months later Picture Post ceased publication. A row in 1950 between publisher Edward Hulton and long-time editor Tom Hopkinson over Hultons spiking of an article on atrocities committed by the South Korean army had led to Hopkinsons departure. The magazine never recovered.

On its demise one reviewer from this newspaper noted that while Picture Post had begun as a vigorous weekly picture paper with a serious interest in social and economic problems, by the late 1950s it was aiming at a fairly low common denominator which presumably prefers its pictures to be thrown on the television screen.

The loss of advertisers to television and a drop in circulation to below 600,000 saw the Picture Post publish its last edition in June 1957, a move no doubt welcomed by the ever-alert guardians of Irelands morality.

Mark OBrien is an associate professor at Dublin City University and the author of The Fourth Estate: Journalism in Twentieth-Century Ireland (2017)

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Immoral, indecent and obscene, or timeless portraits of Ireland? - The Irish Times

I blogged recently on the Massachusetts high court's ruling on how the Fourth Amendment should apply to querying automated license plate reader (ALPR) databases. Here's a new ruling on the topic that deepens the plot: In United States v. Yang, the Ninth Circuit ruled that a driver's Fourth Amendment rights were not violated by querying an ALPR database to learn the car's location when the car was a rental that was been driven beyond the contract and the rental car company had tried to repossess the car. In those circumstances, the court reasoned, the driver lacked standing in the location of the car.

I'm not sure I agree with the reasoning of the decision. But it's certainly interesting, so I thought I would blog more about it.

I. The Facts

Yang was spotted committing a crime while driving a GMC Yukon. Investigators traced the Yukon's license plate to a rental car company, Prestige Motors. The rental car company told the officers that the Yukon had been rented to Yang but that he hadn't returned the car on time. But by the time investigators contacted the rental car company, it was already six days beyond the return time. Prestige Motors had tried to locate the Yukon through its company-owned GPS, but that the GPS had been disabled.

In an effort to find the Yukon, investigators entered the license plate number of the Yukon into an ALPR database called LEARN. LEARN is a database run by a private company that is available only to law enforcement. The LEARN database receives about 35% percent of its images from law enforcement vehicle cameras and the remaining 65% percent of its images from commercial vehicle cameras. It contains more than 5 billion scans of license plates.

The LEARN database was queried on April 13th, and it revealed a single scan in the database that had been taken on April 5th at 11:24pmslightly more than 12 hours after the Yukon was supposed to be returned to the rental car company. The scan revealed that, on April 5th at 11:24pm, the Yukon had been spotted on a road near a particular intersection. Immediately after getting the database hit, also on April 13th, the officer went to that intersection and was able to locate the Yukon in a parking lot nearby.

II. The Ninth Circuit's Reasoning

Here's the question: Did the querying the ALPR database constitute a "search" that violated Yang's rights?

The Ninth Circuit's answer, in an opinion by District Judge Piersol joined by Judge Ken Lee: No. Yang didn't have standing in the car that was supposed to have been returned to the rental car company, so his rights weren't implicated in the scanning. Here's the reasoning:

While the mere expiration of the rental period does not automatically end a lessee's expectation of privacy, see United States v. Dorais, 241 F.3d 1124, 1129 (9th Cir. 2001), we conclude that Yang has failed to establish that he has a reasonable expectation of privacy in the historical location information of the Yukon under the facts of this case. There is no evidence in the record that Prestige Motors had a policy or practice of allowing lessees to keep cars beyond the rental period and Prestige had made affirmative attempts to repossess the vehicle by activating the GPS unit to locate and disable the vehicle.

In so holding, we find instructive our decisions in United States v. Dorais and United States v. Henderson, 241 F.3d 638 (9th Cir. 2000) which both analyze a lessee's expectation of privacy in rental property after the expiration of the rental period. [Editor: The gist of these cases is that you eventually lose Fourth Amendment rights in rented property after the rental period has ended.] . . . .

At the outset, we reject Yang's argument that the above-mentioned cases are inapposite because they regard an expectation of privacy in property or premises rather than an expectation of privacy on the whole of one's movements that is at issue in this case. We are simply unwilling to conclude that a person has a reasonable expectation of privacy in his movements as revealed by the historical location data of a rental vehicle after failing to return the vehicle by the contract due date, when there is no policy or practice of the rental company "permitting lessees to keep cars and simply charging them for the extra time." See Dorias, 241 F.3d at 1128 (citing Henderson, 241 F.3d at 647).

In this case, the rental contract provided that vehicles not returned by the due date will be reported as stolen to the proper authorities. Yang contends that Prestige Motors' decision not to immediately file a stolen vehicle report after the rental contract expired is evidence that the company does not strictly follow this policy. However, unlike in the cases discussed above, Yang presented no evidence at the suppression hearing of any other custom or practice by Prestige that led him to believe that rather than adhering to the rental contract terms and reporting the vehicle as stolen, Prestige would, absent any request by him, simply extend the lease term and charge him the additional fees.

While the rental agreement provided that "[a] charge of $20.00 per day will be applied to the rental for every day the vehicle is late," the contract also provided that "[i]f a customer wishes to extend, he or she must notify the company 1 day in advance to make arrangements and additional payments." There is no evidence in the record to suggest that Yang notified Prestige of any intent on his part to extend the rental period. In addition, the rental contract warned lessees that Prestige may repossess a vehicle if not returned by the contract due date and that a $250.00 repossession fee will apply.

And in case there were any lingering doubts about whether Yang had a reasonable expectation of privacy in the location of the Yukon at the time Inspector Steele searched the LEARN database on April 13, 2006, we conclude that Prestige's private attempts to repossess the Yukon by activating the GPS and disabling the vehicle placed Yang, the sole authorized driver, on notice that Prestige did not intend to extend the lease term, but rather sought to repossess the vehicle.

At oral argument, Yang also argued that he had standing to object to the query of the LEARN database because it revealed his location on April 5, 2016, at approximately 11:24 p.m., at which time, he alleges, he still had a reasonable expectation of privacy in his movements. Given the rental agreement provided that vehicles not returned by the "due date" would be reported as stolen, Yang contends that he had a reasonable expectation of privacy in his movements, as revealed by the location data of the Yukon until 11:59 p.m. on April 5th even though the vehicle was due back by 10:48 a.m. that day. Because the ALPR camera captured the Yukon's location information well after the close of Prestige's business hours, as clearly advertised on the rental agreement, we need not determine whether a defendant has standing to object to a "search" of a rental vehicle's historical location information that was captured and uploaded to a database prior to the expiration of the rental agreement.

III. Judge Bea's Concurrence

Judge Bea concurred in the judgment. Judge Bea reasoned that Yang had standing because "in Carpenter, the Supreme Court was clear that the relevant inquiry, at least where location data is concerned, is what personal location information is revealed by a search of the records, not what type of data was collected and under what circumstances."

But according to Judge Bea, no search had occurred because this particular query had not revealed the whole of Yang's physical movements:

Looking at the specifics of this case, it's clear that the LEARN database did not contain information that revealed the whole of Yang's physical movements. Despite its 5 billion total records, the LEARN database contained a single entry for the Yukon that Yang had rented. Yang was unlucky that the one observation was recorded when he was in possession of the vehicle and was made near his residence. But even accepting that the search of the LEARN database revealed where Yang lived, it exposed nothing else about his "particular movements" whatsoever. Carpenter, 136 S. Ct. at 2217.

. . . It would be folly to hold that searches of ALPR databases require a warrant without identifying even one case where the "whole of [one's] physical movements" was implicated in an ALPR database search. Id. at 2217. If the technology evolves in the way that amici hypothesize, then perhaps in the future a warrant may be required for the government to access the LEARN database, but this should only be the case if the database evolves to provide comparable location information to the records at issue in Carpenter.

IV. A Few Thoughts

The issue of Carpenter standing is fascinating. Traditionally, people have Fourth Amendment rights in a search of a particular placepersons, houses, papers, and effects, as the constitutional text puts it. To have standing, the search needs to be a search of "their" persons, houses, papers, and effects. So when we conduct a traditional standing analysis, we ask if the person has enough of a relationship with the property searched for the property to be effectively theirs.

The complication is that Carpenter recognized a new theory of Fourth Amendment searches.Under Carpenter, people now also have a new Fourth Amendment right in the "whole of their physical movements."This creates a standing puzzle. Does standing to challenge a Carpenter search hinge on whether a person has enough of a relationship with the property that was surveilled to learn about the person's movements? Or does standing to challenge a Carpenter search depend only on whether the government did in fact learn the person's movements?

The majority takes the former view, looking to Yang's rights in the car. Judge Bea's concurrence takes the latter view, looking to whether Yang's location was obtained.

Based on my read of Carpenter, and the opinions on which it is based, I would think that Judge Bea's approach is probably more consistent with those cases. Carpenter focused on the fact that the location of Carpenter's phone was revealed. The Court didn't dwell on whether Carpenter had paid the bill or was a legitimate user of the phone.

Granted, the idea of standing being based only on the location of property merely thought to be linked to a person is pretty weird. After all, we don't know that Yang was actually driving the car when the car was spotted. Who is to say that locating the car at that time was even actually locating Yang? But I take that oddity to be largely brought on by Carpenter. We didn't know Carpenter was using the phone that was located using the cell-site location information (CSLI). And yet the Supreme Court treated revealing the CSLI of the phone thought to be linked to Carpenter as effectively revealing Carpenter's location. The same would seem to be true here, I would think. Perhaps the fact that the Yukon was thought to be linked to Yang meant that his rights were implicated in locating the Yukon even if he wasn't in the car at the time. It's odd, but it's plausibly an oddness caused by Carpenter.

Back to Yang, with just one more thought on standing. Even if majority was right that Carpenter standing is based on rights in the car, I wonder if I'm alone in finding it somewhat misplaced that the majority focused so much on the specific language of the rental contract. I would think that this kind of standing would be governed by the Supreme Court's recent decision in Byrd v. United States, which was expressly about standing to search rental cars outside the terms of the contract. And yet the opinion doesn't citeByrd, although it was discussed extensively in Yang's reply brief.

Finally, I'm also fascinated by the timing issue, a question I keep mentioning when I write on Carpenter and the mosaic theory that keeps getting more interesting. The question is, when does a Carpenter search occur: When the information was first collected? When it was requested by the government? When it has given to the government? When it was analyzed by the government? Some combination of the above? This matters if standing is based on the property surveilled, as a person can have standing in property at one time but not at another time.

In the Yang case, the panel majority focuses on whether Yang had standing at the time the query was made, on April 13th. By the time of the April 13th query, the court reasons, Yang lacked standing. But the panel then also offers the idea that Yang lacked standing when the snapshot of the car was originally taken, on April 5th, because the car was already overdue by a few hours by then. The court then expressly leaves unresolved whether Yang would have had standing had the April 13th query returned a hit that revealed the car's location from an earlier time when the car was still properly rented to Yang. If I'm reading the opinion correctly, the court seems to be slightly hedging its bets here on which timing matters.

As always, stay tuned. Carpenter's novel conceptual puzzles are the gift that keeps on giving, at least for academics. It's like Einstein's theories meeting Newtonian physics.

Link:
Ninth Circuit on ALPR Surveillance and the Fourth Amendment - Reason

At the direction of Attorney General Bill Barr, the Justice Department last week moved to dismiss a false-statements charge against Michael Flynn, President Trumps former national security adviser. The reason stated was that the continued prosecution would not serve the interests of justice.

The motion was signed by Timothy Shea, a longtime trusted adviser of Mr. Barr and, since January, the acting U.S. attorney in Washington. In attempting to support its argument, the motion cites more than 25 times the F.B.I.s report of an interview with me in July 2017, two months after I left a decades-long career at the department (under administrations of both parties) that culminated in my role as the acting assistant attorney general for national security.

That report, commonly referred to as a 302, is an interesting read. It vividly describes disagreements between leadership of the Justice Department and the F.B.I. about how to handle the information we had learned about Mr. Flynns calls with the Russian ambassador Sergey Kislyak and, more specifically, Mr. Flynns apparent lies about those calls to incoming Vice President Mike Pence.

But the report of my interview is no support for Mr. Barrs dismissal of the Flynn case. It does not suggest that the F.B.I. had no counterintelligence reason for investigating Mr. Flynn. It does not suggest that the F.B.I.s interview of Mr. Flynn which led to the false-statements charge was unlawful or unjustified. It does not support that Mr. Flynns false statements were not material. And it does not support the Justice Departments assertion that the continued prosecution of the case against Mr. Flynn, who pleaded guilty to knowingly making material false statements to the FBI, would not serve the interests of justice.

I can explain why, relying entirely on documents the government has filed in court or released publicly.

Notably, Mr. Barrs motion to dismiss does not argue that the F.B.I. violated the Constitution or statutory law when agents interviewed Mr. Flynn about his calls with Mr. Kislyak. It doesnt claim that they violated his Fifth Amendment rights by coercively questioning him when he wasnt free to leave. Nor does the motion claim that the interview was the fruit of a search or seizure that violated the Fourth Amendment. Any of these might have justified moving to dismiss the case. But by the governments own account, the interview with Mr. Flynn was voluntary, arranged in advance and took place in Mr. Flynns own office.

Without constitutional or statutory violations grounding its motion, the Barr-Shea motion makes a contorted argument that Mr. Flynns false statements and omissions to the F.B.I. were not material to any matter under investigation. Materiality is an essential element that the government must establish to prove a false-statements offense. If the falsehoods arent material, theres no crime.

The department concocts its materiality theory by arguing that the F.B.I. should not have been investigating Mr. Flynn at the time they interviewed him. The Justice Department notes that the F.B.I. had opened a counterintelligence investigation of Mr. Flynn in 2016 as part of a larger investigation into possible coordination between the Trump campaign and Russian efforts to interfere with the presidential election. And the department notes that the F.B.I. had intended to close the investigation of Mr. Flynn in early January 2017 until it learned of the conversations between Mr. Flynn and Mr. Kislyak around the same time.

Discounting the broader investigation and the possibility of Russian direction or control over Mr. Flynn, the departments motion myopically homes in on the calls alone, and because it views those calls as entirely appropriate, it concludes the investigation should not have been extended and the interview should not have taken place.

The account of my interview in 2017 doesnt help the department support this conclusion, and it is disingenuous for the department to twist my words to suggest that it does. What the account of my interview describes is a difference of opinion about what to do with the information that Mr. Flynn apparently had lied to the incoming vice president, Mr. Pence, and others in the incoming administration about whether he had discussed the Obama administrations sanctions against Russia in his calls with Mr. Kislyak. Those apparent lies prompted Mr. Pence and others to convey inaccurate statements about the nature of the conversations in public news conferences and interviews.

Why was that so important? Because the Russians would have known what Mr. Flynn and Mr. Kislyak discussed. They would have known that, despite Mr. Pences and others denials, Mr. Flynn had in fact asked Russia not to escalate its response to the sanctions. Mr. Pences denial of this on national television, and his attribution of the denial to Mr. Flynn, put Mr. Flynn in a potentially compromised situation that the Russians could use against him.

The potential for blackmail of Mr. Flynn by the Russians is what the former Justice Department leadership, including me, thought needed to be conveyed to the incoming White House. After all, Mr. Flynn was set to become the national security adviser, and it was untenable that Russia which the intelligence community had just assessed had sought to interfere in the U.S. presidential election might have leverage over him.

This is where the F.B.I. disagreed with the Justice Departments preferred approach. The F.B.I. wasnt ready to reveal this information to the incoming administration right away, preferring to keep investigating, not only as part of its counterintelligence investigation but also possibly as a criminal investigation. Although several of us at Justice thought the likelihood of a criminal prosecution under the Logan Act was quite low (the act prohibits unauthorized communications with foreign governments to influence their conduct in relation to disputes with the United States), we certainly agreed that there was a counterintelligence threat.

Thats exactly why we wanted to alert the incoming administration. Ultimately, after our dispute over such notification continued through the inauguration and into the start of the Trump administration, the F.B.I. without consulting the Justice Department arranged to interview Mr. Flynn. By the time Justice Department leadership found out, agents were en route to the interview in Mr. Flynns office.

The account of my July 2017 interview describes my departments frustration with the F.B.I.s conduct, sometimes using colorful adjectives like flabbergasted to describe our reactions. We werent necessarily opposed to an interview our focus had been on notification but any such interview should have been coordinated with the Justice Department. There were protocols for engaging with White House officials and protocols for interviews, and this was, of course, a sensitive situation. We objected to the rogueness of the decision by the F.B.I. director, Jim Comey, made without notice or opportunity to weigh in.

The Barr-Shea motion to dismiss refers to my descriptions of the F.B.I.s justification for not wanting to notify the new administration about the potential Flynn compromise as vacillating from the potential compromise of a counterintelligence investigation to the protection of a purported criminal investigation. But that vacillation has no bearing on whether the F.B.I. was justified in engaging in a voluntary interview with Mr. Flynn. It has no bearing on whether Mr. Flynns lies to the F.B.I. were material to its investigation into any links or coordination between Mr. Trumps presidential campaign and Russias efforts to interfere in the 2016 election.

And perhaps more significant, it has no bearing on whether Mr. Flynns lies to the F.B.I. were material to the clear counterintelligence threat posed by the susceptible position Mr. Flynn put himself in when he told Mr. Pence and others in the new administration that he had not discussed the sanctions with Mr. Kislyak. The materiality is obvious.

In short, the report of my interview does not anywhere suggest that the F.B.I.s interview of Mr. Flynn was unconstitutional, unlawful or not tethered to any legitimate counterintelligence purpose.

Mary B. McCord, the former acting assistant attorney general for national security at the Department of Justice, is legal director for Georgetown Laws Institute for Constitutional Advocacy and Protection and a visiting law professor.

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Since the onset of the COVID-19 pandemic, which in these parts was in early March, I have found the data-gathering practices on actual cases, hospitalizations, and deaths unhelpful.

Everyone has.

In full disclosure, I had to take college algebra twice to get a passing grade.

This is no slight on Mrs. Haines or GSHS, but you may want to take with a grain of salt anything I might write related even obliquely to math (unless, of course, it has to do with the Electoral College, where numerical reason always gets offended and leaves the room in a snit).

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Youd think that in the 21st Century, U.S. data gathering and reporting would be spit-polished by ubiquitous technologies like iPhones and wireless networks, but alas, the garbage-in-garbage-out proposition still applies, perhaps now more than ever.

Despite my questionable math background, early on in the pandemic I dumped TV news in favor of Bings COVID-19 Tracker to get a clearer picture about where and how quickly the virus was spreading.

However, I soon gave up on Bing for some of the same reasons I soured on TV news.

Unlike the news, Bings COVID-19 Tracker allocates a spot for recoveries. Like the news, they dont put a number to it usually.

Even as I write, the map lists no recoveries in Colorado and most other states.

I thought maybe recovery data gets protected by HIPPA or the Fourth Amendment, and perhaps some of it does, but some states do cite recoveries.

Wyoming, for example, showed 596 cases earlier this week, 391 of which had recovered. Colorado, on the other hand, shows no recoveries but dutifully updates the total number of cases daily, which on Wednesday exceeded 17,000.

In fairness, KDVR did cite Colorado recovery statistics from CDPHE for about three days. KDVR still leads every broadcast with a fuss over cumulative cases, hospitalizations and fatalities, but apart from an occasional human interest piece on a patients hospital departure, theres little mention of recoveries.

Its not just the absence of recovery data that makes data on COVID-19 unhelpful.

Last month I watched as a news anchor unashamedly reported on live TV that a spike in COVID fatalities was partially due to previously unreported deaths attributed to the virus. The gist of the story was something like, CDPHE found numerous COVID-19 fatalities from previous weeks, so they have been added to todays number.

Its like they had no idea what to do, so they plugged them into the nearest slot.

The tendency of fatality reporting to gin up foreboding has been well-understood since the days of Walter Cronkite, but this kind of sloppy data gathering turns a new leaf. Yet, Colorado and communities like Glenwood Springs base decisions on whether to end mask-wearing ordinances and lift restaurant restrictions on this data.

Modeling based on solid data testing, active cases, hospitalizations, recoveries and mortality strikes me as a valid basis for making decisions about precautionary measures, but that validity unravels if you ignore recoveries, dismiss the temporal integrity of deaths, and focus mainly on cumulative active cases, hospitalizations and fatalities.

That focus yields one grim picture.

Holy moly, Myrtle, you end up saying as you smack your forehead with the palm of your hand, Theres over 17,000 COVID cases in Colorado!

View that number through the prism of recoveries and a different picture emerges.

Of course, we dont see that picture because somewhere along the way someone decided recoveries dont matter as much as active cases and fatalities, or something like that.

Last month Gov. Jared Polis referenced the use of cellphone metadata to analyze human movement and determine the efficacy of stay-at-home orders. He could certainly get his hands on recovery data if he wanted it Fourth Amendment rights or not.

So, listen carefully, friends, whenever someone trots out COVID-19 statistics. The vision of what a hopeful future looks like is often in what the voices of public trust dont say.

Mitch Mulhall is a husband, father and longtime Roaring Fork Valley resident. His column appears monthly in the Post Independent and at postindependent.com.

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