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Why Has East Timor Built the Strongest Democracy in Southeast Asia? – Council on Foreign Relations

Part of a blog series on Southeast Asian and South Asian Democracy.

On the face of it, East Timor would not seem like the most natural place to have built a democracy ranked by Freedom House, in its 2021 edition of Freedom in the World, as Free. In fact, this ranking makes East Timor the only country in Southeast Asia, where democracy has been regressing for over a decade, to be ranked Free by Freedom House. (I serve as a consultant for some Freedom House reports, but not for the report on East Timor.)

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A wide range of other data and anecdotes suggests how far East Timor has come toward democracy. It has built a solidly free state some two decades after Timor was leveled in the conflict that erupted, in 1999, after over 78 percent of Timorese voted to separate from Indonesia after the end of the Suharto dictatorship.

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That 1999 conflict in Timor, led by ravaging militias backed by the Indonesian security forces, not only killed roughly 2,600 but also wrecked much of the infrastructure in tiny Timor, which already was one of the poorest places in Asia. Timor was ravaged again, in 2006, by clashes between its own soldiers and security forces. Timor did rebuild some of its infrastructure, and received significant amounts of foreign aid and a share of the revenues from the petroleum in the Timor Gap.

Still, it remains the poorest country in Asia, a far cry from the high rises of Bangkok or Singapore. Indeed, an article by Jonas Guterres, a former advisor to the Office of the Commissioner at the Anti-Corruption Commission of Timor-Leste, notes that: The 2017 Global Hunger Index categorized the countrys [East Timors] hunger levels as serious, although over the past decade the hunger level has been reduced from 46.9 percent to 34.3 percent. Levels of malnutrition and stunting remain worryingly high.

And Timor certainly still has massive economic problems. With its share of the oil from the Timor Gap, its biggest earner, eventually going to dwindle, and the small size of Timor and remote location deterring tourism even before COVID-19, it is still searching for more sustainable drivers of the economy. The vast majority of the population is under age thirty, which could be a boon for the work force but also could lead the country to have large numbers of unemployed young men, always a dangerous situation.

And yet it has taken several important initiatives to build a consolidated democracy. Timor has brought elections down to the community level as physical infrastructure has improved, and community level elections have increased popular participation in democracy. Overall, both the long independence struggle and more recent efforts by Timorese civil society and leaders have convinced many Timorese of the importance of democracy, and turnout for elections is extremely high. With such public interest, and increasingly improved electoral commissions, elections have been held in recent years with minimal or no violence, and minimal if any irregularities.

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It also has worked hard to ensure that women play a major role in elections and governing. And its constitution and norms have strong protections for civil society and an independent media, a far cry from the recent crackdown on reporters in neighboring states like Myanmar, Thailand, the Philippines, and Cambodia, among other countries in the region. Shoestring but aggressive local media outlets put tough questions to politicians in Timor.

Indeed, Freedom House notes that East Timor has held competitive elections and has undergone multiple transfers of power something that cannot be said about many other Southeast Asian states these days. Freedom House also notes that East Timor boasts independent media, a vibrant civil society, and robust discussion among citizens about the government and other related issues.

At a time when Myanmar has been taken over by the army, Indonesia is sliding away from democracy, Philippine president Rodrigo Duterte seems to want to extend his grip on power, and Thailand is run by a military-installed regime, perhaps these Southeast Asian regional powers should look to tiny Timor for how to run a democracy.

This publication is part of the Diamonstein-Spielvogel Project on the Future of Democracy.

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Why Has East Timor Built the Strongest Democracy in Southeast Asia? - Council on Foreign Relations

Taiwan and the Fight for Democracy: A Force for Good in the Changing International Order – Foreign Affairs

The story of Taiwan is one of resilienceof a country upholding democratic, progressive values while facing a constant challenge to its existence. Our success is a testament to what a determined practitioner of democracy, characterized by good governance and transparency, can achieve.

Yet the story of Taiwan is not only about the maintenance of our own democratic way of life. It is also about the strength and sense of responsibility Taiwan brings to efforts to safeguard the stability of the region and the world. Through hard work and courage, the 23.5 million people of Taiwan have succeeded in making a place for themselves in the international community.

Emerging from the COVID-19 pandemic, authoritarian regimes are more convinced than ever that their model of governance is better adapted than democracy to the requirements of the twenty-first century. This has fueled a contest of ideologies, and Taiwan lies at the intersection of contending systems. Vibrantly democratic and Western, yet influenced by a Chinese civilization and shaped by Asian traditions, Taiwan, by virtue of both its very existence and its continued prosperity, represents at once an affront to the narrative and an impediment to the regional ambitions of the Chinese Communist Party.

Taiwans refusal to give up, its persistent embrace of democracy, and its commitment to act as a responsible stakeholder (even when its exclusion from international institutions has made that difficult) are now spurring the rest of the world to reassess its value as a liberal democracy on the frontlines of a new clash of ideologies. As countries increasingly recognize the threat that the Chinese Communist Party poses, they should understand the value of working with Taiwan. And they should remember that if Taiwan were to fall, the consequences would be catastrophic for regional peace and the democratic alliance system. It would signal that in todays global contest of values, authoritarianism has the upper hand over democracy.

The course of the Indo-Pacific, the worlds fastest-growing region, will in many ways shape the course of the twenty-first century. Its emergence offers myriad opportunities (in everything from trade and manufacturing to research and education) but also brings new tensions and systemic contradictions that, if not handled wisely, could have devastating effects on international security and the global economy. Chief among the drivers of these tensions is the rise of more assertive and self-assured authoritarianism, which is challenging the liberal democratic order that has defined international relations since the end of World War II.

Beijing has never abandoned its ambitions toward Taiwan. But after years of double-digit investment in the Chinese military, and expansionist behavior across the Taiwan Strait and in surrounding maritime areas, Beijing is replacing its commitment to a peaceful resolution with an increasingly aggressive posture. Since 2020, Peoples Liberation Army aircraft and vessels have markedly increased their activity in the Taiwan Strait, with almost daily intrusions into Taiwans southern air defense identification zone, as well as occasional crossings of the tacit median line between the island and the Chinese mainland (which runs along the middle of the strait, from the northeast near Japans outlying islands to the southwest near Hong Kong).

Despite these worrying developments, the people of Taiwan have made clear to the entire world that democracy is nonnegotiable. Amid almost daily intrusions by the Peoples Liberation Army, our position on cross-strait relations remains constant: Taiwan will not bend to pressure, but nor will it turn adventurist, even when it accumulates support from the international community. In other words, the maintenance of regional security will remain a significant part of Taiwans overall government policy. Yet we will also continue to express our openness to dialogue with Beijing, as the current administration has repeatedly done since 2016, as long as this dialogue proceeds in a spirit of equality and without political preconditions. And we are investing significant resources to deepen our understanding of the administration in Beijingwhich will reduce the risks of misinterpretation and misjudgment and facilitate more precise decision-making on our cross-strait policies. We look to maintain a clear-eyed understanding of the external environment, both threats and opportunities, in order to ensure that Taiwan is prepared to meet its challenges.

At the same time, Taiwan is fully committed to working with other regional actors to ensure stability. In March, for example, Taiwan and the United States signed a memorandum of understanding on the establishment of a coast guard working group. This working group will improve communication and information sharing between the U.S. and Taiwanese coast guards, while also facilitating greater collaboration on shared objectives, such as preserving maritime resources and reducing illegal, unreported, and unregulated fishing. Such an understanding should serve as a springboard for greater collaboration on nonmilitary matters with other partners in the Indo-Pacific.

Taiwan has also launched a series of initiatives to modernize and reorganize its military, in order to be better prepared for both present and future challenges. In addition to investments in traditional platforms such as combat aircraft, Taiwan has made hefty investments in asymmetric capabilities, including mobile land-based antiship cruise missiles. We will launch the All-Out Defense Mobilization Agency in 2022, a military reform intended to ensure that a well-trained and well-equipped military reserve force stands as a more reliable backup for the regular military forces. Such initiatives are meant to maximize Taiwans self-reliance and preparedness and to signal that we are willing to bear our share of the burden and dont take our security partners support for granted.

At a Taiwanese military exercise in Pingtung, Taiwan, May 2019

Taiwans efforts to contribute to regional security do not end there. We are fully committed to collaborating with our neighbors to prevent armed conflict in the East China and South China Seas, as well as in the Taiwan Strait. Taiwan lies along the first island chain, which runs from northern Japan to Borneo; should this line be broken by force, the consequences would disrupt international trade and destabilize the entire western Pacific. In other words, a failure to defend Taiwan would not only be catastrophic for the Taiwanese; it would overturn a security architecture that has allowed for peace and extraordinary economic development in the region for seven decades.

Taiwan does not seek military confrontation. It hopes for peaceful, stable, predictable, and mutually beneficial coexistence with its neighbors. But if its democracy and way of life are threatened, Taiwan will do whatever it takes to defend itself.

Taiwans history is filled with both hardship and accomplishments, and the authors of this history are the people of Taiwan. Over the past few decades, we have overcome adversity and international isolation to achieve one of modern political historys most successful democratic transitions. The key ingredients of this achievement have been patience, resourcefulness, pragmatism, and a stubborn refusal to give up. Understanding both the delicate balance of power in the region and the need for support, the Taiwanese know that practical collaboration is often better than being loud or adventurous and that a willingness to lend a hand is better than trying to provoke or impose a system on others.

While the people of Taiwan have not always achieved consensus, over time, a collective identity has emerged. Through our interactions with the rest of the world, we have absorbed values that we have made our own, merging them with local traditions to create a liberal, progressive order and a new sense of what it means to be Taiwanese.

At the heart of this identity is our embrace of democracy, reflecting a choice that the Taiwanese made and fought for after decades of authoritarian rule. Once the Taiwanese had made that choice, there was no looking back. Imperfect though it may be, democracy has become a nonnegotiable part of who we are. This determination gives Taiwan the resilience to meet the challenges of the twenty-first century and provides a firewall against forces, both internal and external, seeking to undermine its hard-won democratic institutions.

A fundamental part of this embrace of democracy is a firm belief that the future of Taiwan is to be decided by the Taiwanese through democratic means. Although Taiwanese in some ways differ in their sense of what exactly this future should look like, we are united in our commitment to democracy and the values and institutions that allow us to fight back against external efforts to erode our identity and alter the way of life we cherish. The great majority of us regard democracy as the best form of government for Taiwan and are willing to do what is necessary to defend it. Those beliefs are tested every day, but there is no doubt that the people would rise up should the very existence of Taiwan be under threat.

Civil society has always played a major role in Taiwan. During the period of authoritarian rule under the Kuomintang, the Dangwai movement pushed to lift martial law and democratize Taiwan; even after being instrumental in ending martial law, it continued to offer an active and effective check on government power. Today, the extent of Taiwanese civil societys role in governance is unmatched anywhere in the regiona reflection of the trust between elected officials and citizens, who as a result are able to influence policy both through and between elections.

Taiwans civil society has also proved integral to the islands international standing. Taiwans exclusion from the United Nations and most other international institutions could have led to isolation, but Taiwan instead tapped into the tremendous creativity and capacity of its people, allowing us to establish global connections by other meansthrough small businesses, nongovernmental organizations, and various semi-official groupings. Rather than being an impediment, the refusal of many countries to officially recognize Taiwan compelled us to think asymmetrically, combating efforts to negate Taiwans existence by deepening our engagement with the world through nontraditional channels.

In short, despite decades of isolation, the people of Taiwan have succeeded in making a place for themselves within the international communityand transforming Taiwan itself into an economic powerhouse and one of the most vibrant democracies in the Indo-Pacific.

Taiwans ability to survive and even thrive as a liberal democracy despite the extraordinary challenges to its existence has important implications for the prevailing rules of international relations. Our bid to play a more meaningful role in the international community is evolving in the context of changing regional politics, with more assertive challenges to the liberal international order, backed by the economic and political power to turn those ambitions into action. With increasing awareness of the potential impact of such authoritarian ambitions, more and more countries have been willing to reexamine their long-standing assumptions about, and self-imposed limitations on, engagement with Taiwan.

Through its evolution as an economic powerhouse and a participatory democracy, Taiwan seeks to beand in many ways already ispart of the solution to emerging challenges with ramifications on a planetary scale, from climate change and new diseases, to proliferation and terrorism, to human trafficking and threats to supply chains. The COVID-19 pandemic has shown that the world is now so interconnected that the outbreak of a disease in one corner of the planet can, within a matter of months, reach pandemic proportions. In many cases, the speed with which new emergencies arise and spread is beyond the ability of states and existing international institutions to respond. To prepare for future emergencies, the international community must move toward inclusiveness rather than rigidly adhering to current structures.

Getting vaccinated against COVID-19 in Taipei, Taiwan, September 2021

Even as it experienced a flare-up in COVID-19 cases last spring, Taiwan has demonstrated to the world that democratic systems can respond effectively to a pandemic, harnessing the powers of artificial intelligence, big data, and surveillance networks while ensuring that the information gathered is used responsibly. The pandemic has also given Taiwan an opportunity to share its experience with the world and to provide much-needed medical assistance to struggling countries. This is so despite its long exclusion from global institutions such as the World Health Organization, which has left Taiwan little choice but to develop its own methods of cooperating and communicating with international partners. Being left out of the United Nations and other multilateral institutions has encouraged resilience and spurred novel approaches to dealing with challenges and crises of all kinds.

Despite being kept out in the cold, Taiwan has strived to adhere to international protocols, such as the UN Framework Convention on Climate Change, amending its domestic laws and seeking its own formulas for meeting increasingly complex challenges. Taiwan is also working proactively with its partners on the development of its region. In 2016, we launched the New Southbound Policy, which facilitates regional prosperity through trade and investment partnerships, educational and people-to-people exchanges, and technological and medical cooperation with countries in South and Southeast Asia, as well as Australia and New Zealand. Taiwan is also making investments in these partners through its business community, simultaneously fostering secure supply chains and regional development.

Indeed, with its high-tech leadership and educated and globalized workforce, Taiwan is well positioned to help create secure global supply chains in sectors such as semiconductors, biotechnology, and renewable energyall areas where international cooperation is needed now more than ever. Our semiconductor industry is especially significant: a silicon shield that allows Taiwan to protect itself and others from aggressive attempts by authoritarian regimes to disrupt global supply chains. We are working to further strengthen our role in securing global supply chains with a new regional high-end production hub initiative, which will solidify our position in the global supply chain. Besides making computer chips, Taiwan is active in high-precision manufacturing, artificial intelligence, 5G applications, renewable energy, biotechnology, and more, helping create more diverse and global supply chains that can withstand disruption, human or otherwise.

Taiwan derives additional soft power from expertise and capabilities in a variety of other fields, including education, public health, medicine, and natural-disaster prevention. And these are fields in which our experts and institutions are taking on a growing regional role. Our universities, for example, are prepared to work with other universities in the region to develop Chinese-language training. Our medical facilities are sharing expertise in medical technology and management with partners around Asia. And we are ready to work with major countries to provide infrastructure investment in developing countries, leveraging efficiency while promoting good governance, transparency, and environmental protection. Similar efforts are being made through an agreement with the United States to enhance cooperation on infrastructure financing, investment, and market development in Latin America and Southeast Asia. In short, Taiwan can be a crucial force in the peaceful development and prosperity of our region and the world.

Sitting on the frontlines of the global contest between the liberal democratic order and the authoritarian alternative, Taiwan also has an important part to play in strengthening global democracy. In 2003, we established the regions first nongovernmental organization devoted to democracy assistance and advocacy, the Taiwan Foundation for Democracy. Following the models set by the United States National Endowment for Democracy and the United Kingdoms Westminster Foundation for Democracy, the TFD provides funding for other nongovernmental organizations, international and domestic, that advocate democratic development and human rights. It also works to promote public participation in governance through mechanisms such as participatory budgeting and to encourage youth engagement through initiatives such as the annual Asia Young Leaders for Democracy program. In 2019, the TFD organized its inaugural regional forum on religious freedom, and my government appointed its first ambassador-at-large for religious freedom.

Taiwans strong record on democracy, gender equality, and press and religious freedom has also made it a home for a growing number of global nongovernmental organizations, which have faced an increasingly difficult environment in Asia. Organizations including Reporters Without Borders, the National Democratic Institute, the International Republican Institute, the European Values Center for Security Policy, and the Friedrich Naumann Foundation for Freedom have set up regional offices in Taiwan. From Taiwan, they are able to continue their important work in the region without the constant threats of surveillance, harassment, and interruptions by authorities. We have also made ourselves hospitable to international institutions interested in establishing a presence in the Indo-Pacific, helping turn Taiwan into a hub for advancing the interests of the democratic community.

Meanwhile, the Global Cooperation and Training Frameworka platform jointly administered by Taiwan, the United States, and other partners that allows us to share our expertise with countries around the worldhas fostered creative cooperation on issues such as law enforcement, public health, and good governance. One recent round of GCTF activity, for example, focused on media literacy and how democracies can combat disinformationan area in which Taiwan has an abundance of experience.

Over the past five years, more than 2,300 experts and officials from more than 87 countries have attended GCTF workshops in Taiwan, and the forum will continue to expandoffering a path to greater collaboration between Taiwan and countries around the world, including the United States. Indeed, Taiwan works closely with the United States on many issues, in the service of regional peace and stability. Our hope is to shoulder more responsibility by being a close political and economic partner of the United States and other like-minded countries.

The threat posed by authoritarian regimes has served as an important wake-up call for democracies, spurring them to emerge from their complacency. Although extraordinary challenges remain, democracies around the world are now working to safeguard their values and renew their ossified institutions. Alliances are being rekindled to serve the interests of the international community.

Taiwan may be small in terms of territory, but it has proved that it can have a large global presenceand that this presence matters to the world. It has persevered in the face of existential threats and made itself an indispensable actor in the Indo-Pacific. And through it all, the Taiwanese commitment to democracy has never been stronger: the people of Taiwan know that democracy is the lasting path and the only game in town.

Over the past two years, our handling of the COVID-19 pandemic, and our assistance to and collaboration with countries around the world, has offered one more example of the crucial role that Taiwan can play and of why Taiwan matters. Going forward, our high-tech industries, and especially our production of advanced semiconductors, will continue to fuel the global economy. And Taiwans ability to balance ties to various countries while defending its democratic way of life will continue to inspire others in the region.

We have never shied away from challenges. Although the world faces an arduous journey ahead, this presents Taiwan with opportunities not seen before. It should increasingly be regarded as part of the solution, particularly as democratic countries seek to find the right balance between the need to engage and trade with authoritarian countries and the need to defend the values and democratic ideals that define their societies. Long left out in the cold, Taiwan is ready to be a global force for good, with a role on the international stage that is commensurate with its abilities.

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Taiwan and the Fight for Democracy: A Force for Good in the Changing International Order - Foreign Affairs

Events | Credible threat: Attacks against women online and the future of democracy – Loughborough University

Activists. Journalists. Elected Representatives. Public Intellectuals.

When women are vocal about political and social issues, too often they are attacked via social networking sites, comment sections, discussion boards, email, and direct message. Rather than targeting their ideas, the abuse targets their identities. Identity-based attacks are particularly severe for those women from racial, ethnic, and religious minority groups or who work in domains dominated by men. Feminists and women who challenge traditional gender norms are also frequently targeted.

This toxicity comes with economic, professional, and psychological costs for those targeted, but it also exacts societal-level costs that are rarely recognized: it erodes civil liberties, diminishes our public discourse, thins the knowledge available to inform policy and electoral decision-making, and teaches women that activism and public service are high-risk endeavours to be avoided. Sarah Sobieraj traces these underexplored effects, showing that when identity-based attacks succeed in constraining women's use of digital publics, there are democratic consequences that cannot be ignored.

Sarah Sobieraj is an award-winning teacher and researcher with expertise in US political culture, extreme incivility, digital abuse and harassment, and the mediated information environment. Her most recent book, Credible Threat: Attacks Against Women Online and the Future of Democracy (Oxford University Press, 2020), examines the impact of identity-based digital abuse on womens participation in social and political discourse. She is also the author of The Outrage Industry: Political Opinion Media and the New Incivility (Oxford University Press, 2014) with Jeff Berry, and Soundbitten: The Perils of Media-Centered Political Activism (NYU Press, 2011).

Professor Sobieraj edited (with Rob Boatright, Danna Young, and Tim Schaffer) A Crisis of Civility?: Political Discourse and Its Discontents (Routledge, 2019). Additionally, she is currently co-editing the Oxford Handbook on Sociology and Digital Media with Deana Rohlinger, which is due out in 2021. Professor Sobierajs most recent journal articles can be found in Information, Communication & Society, Social Problems, PS: Political Science & Politics, Poetics, Political Communication, and Sociological Theory.

Her work has also been featured in venues such as the New York Times, the Washington Post, the Boston Globe, Politico, Vox, CNN, PBS, NPR, the American Prospect, National Review, the Atlantic, Pacific Standard, and Salon. Sobieraj serves on the advisory board of the Social Science Research Councils Disinformation Research Mapping Initiative, is a member of the National Institute for Civil Discourse Research Network, and is a faculty associate with the Berkman Klein Center for Internet & Society at Harvard University.

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Events | Credible threat: Attacks against women online and the future of democracy - Loughborough University

History Teaches that Constitutional Reforms Come in Waves. We May Be Approaching One Now. – POLITICO

What this suggests is that a new round of constitutional revisions might be possible in the not-too-distant future.

Our national charter has been reformed and its principles renewed in four waves of constitutional change that occurred during the most turbulent times in American history. The first was from 1789 to 1804, when the founding generation added a dozen amendments in a 15-year period. Chief among them was the Bill of Rights, the first 10 amendments, adopted in a single bundle to reassure skeptics that a strong national government could be tempered with respect for individual liberty. They also adopted the 11th and 12th Amendments that, respectively, limited citizens lawsuits against states and fixed some defects in the Electoral College.

Then all was quiet on the constitutional front for 61 years, until after the Civil War. Between 1865 and 1870, Republican lawmakers used six years of supermajority control of Congress to drive a second era of amendments that abolished slavery, promised equal citizenship for 4 million newly freed African Americans and barred racial discrimination in voting. Taken together, these amendments laid a second founding for a nation sundered by war. They gave Congress robust new powers to remedy racial injustice while imposing meaningful limits on the excesses of state governments.

And then there was another four decades of polarization and gridlock, marked by the pervasive corruption and vast inequities of the Gilded Age. Eventually, the political pendulum swung and brought a progressive political coalition to power. At the prodding of social movements from the populists to the suffragists to the temperance warriors, lawmakers sought to reverse the extravagance of the previous era. Between 1909 and 1920, Progressive Era reformers added four amendments that authorized the income tax, provided for the popular election of senators, launched Prohibition and extended the franchise to women. The spectacular failure of the nationwide liquor ban notwithstanding (the 21st amendment repealed Prohibition in 1933), these amendments established the foundation for the modern U.S. government.

Finally, a fourth wave, inspired by the political activism of the 1960s civil rights era, added three voting rights amendments to the Constitution: presidential electors for the District of Columbia, abolition of the poll tax, and the lowering of the voting age to 18. A fourth amendment, the 25th, updated and clarified the rules of presidential and vice presidential succession amid the doomsday fears of the nuclear age. The last of this wave was the 26th Amendment, the voting age measure, ratified in 1971.

Today, we find ourselves five decades into the latest dry spell. After the defeat of the Equal Rights Amendment in the 1980s, many progressives concluded that the Constitutions arduous amending process is not worth the effort. For their part, conservative activists have launched campaigns to win a balanced budget amendment and other ideological policies, which has only bolstered a sense among many that its unwise and even dangerous to tinker with the framers handiwork.

But this sense of defeatism is not new. In 1904, the Washington Post dismissed reformers amendatory schemes, offering the hard-boiled take that our fundamental law is practically unamendable by peaceful and regular methods. And yet, just a half-decade later, that pessimistic prognosis was proven wrong when Congress proposed the first of the Progressive Era amendments.

The presence of certain factors that have prompted past generations of Americans to push for constitutional amendments suggests that a new wave may already be building. Discontent over controversial Supreme Court rulings, for instance, has proven to be a predictable galvanizer of amending activity in previous eras. In fact, seven amendments were motivated by the desire to reverse high court decisions. Today the amendment option is on the table for activists working to overrule Supreme Court decisions such as Citizens United, which has allowed corporations and outside groups to spend unlimited amounts of money on campaigns.

During periods of gridlock, states sometimes look for workarounds for some of the Constitutions most problematic provisions, and that experimentation is another driver of constitutional amendments. In the early 20th century, when the Senate blocked an amendment giving voters the right to directly elect its members (a power originally given to state legislatures), reformers in the states responded with measures such as the Oregon Plan, which allowed voters to express their Senate preference in a popular referendum. By establishing a de facto system of popular election in much of the country, they forced the Senates hand.

In a similar vein, some states today are pushing to circumvent the Electoral College through the adoption of the National Popular Vote Interstate Compact, which would award the presidency to the winner of the popular vote an innovative reform that could lay the groundwork for an amendment to change how we choose the president. Even the Equal Rights Amendment, introduced nearly a century ago, might be back on the agenda thanks to state lawmakers who have revived the effort to ratify it.

It may be hard to imagine, but todays political impasse may eventually give way to a new governing coalition. Look at the Gilded Age a century ago, when mounting social problems fueled a rare consensus for reform. Then, as now, economic inequality was widening as restraints on corporate power eroded and moneyed interests dominated our elections. The nation was polarized along regional lines that mirror todays red state-blue state divide. Immigration was changing the country to the alarm of traditionalists. Elections were won by narrow margins, producing gridlock. And all the while, a conservative Supreme Court stood in the way of needed change. In time, the pressure for reform caused a dramatic leftward swing in national sentiment that few saw coming an earthquake that divided the Republicans, lifted the Democrats and led to the adoption of four amendments after years of fruitless advocacy.

That all sounds a lot like 2021. The country has been going through demographic and economic changes comparable to those in the Gilded Age and a new, diverse generation of voters is on the rise. Like their predecessors in the early 20th century, the new generation has decidedly progressive politics and is leading important social movements.

So theres hope for our Constitution and the political system it governs. While todays partisan rancor and gridlock may currently thwart important national reforms, they may also signal the coming of a new era of constitutional change that could kick-start our countrys journey toward a more perfect Union.

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History Teaches that Constitutional Reforms Come in Waves. We May Be Approaching One Now. - POLITICO

Court Tells Child Sexual Abuse Investigators That The Private Search Warrant Exception Only Works When There’s A Private Search – Techdirt

from the thus-answering-the-question-'when-is-a-search-not-a-search' dept

Private searches that uncover contraband can be handed off to law enforcement without the Fourth Amendment getting too involved. Restrictions apply, of course. For instance, a tech repairing a computer may come across illicit images and give that information to law enforcement, which can use what was observed in the search as the basis for a search warrant.

What law enforcement can't do is ask private individuals to perform searches for it and then use the results of those searches to perform warrantless searches of their own. A Ninth Circuit Appeals Court case [PDF] points out another thing law enforcement can't do: assume (or pretend) a private search has already taken place in order to excuse its own Fourth Amendment violation. (h/t Rianna Pfefferkorn)

Automated scanning of email attachments led to a series of events that culminated in an unlawful search. Here's the court's description of this case's origination:

The events giving rise to Luke Wilsons conviction and this appeal were triggered when Google, as required by federal law, reported to the National Center for Missing and Exploited Children (NCMEC) that Wilson had uploaded four images of apparent child pornography to his email account as email attachments. No one at Google had opened or viewed Wilsons email attachments; its report was based on an automated assessment that the images Wilson uploaded were the same as images other Google employees had earlier viewed and classified as child pornography. Someone at NCMEC then, also without opening or viewing them, sent Wilsons email attachments to the San Diego Internet Crimes Against Children Task Force (ICAC), where an officer ultimately viewed the email attachments without a warrant. The officer then applied for warrants to search both Wilsons email account and Wilsons home, describing the attachments in detail in the application.

You can see where things went wrong: the warrantless search engaged in by the officer to view images neither of the other parties had actually opened or inspected. Apparently, Fourth Amendment violations are standard practice at the San Diego ICAC.

NCMEC then forwarded the CyberTip to the San Diego Internet Crimes Against Children Task Force (ICAC). Agent Thompson, a member of the San Diego ICAC, received the report. He followed San Diego ICAC procedure, which at the time called for inspecting the images without a warrant whether or not a Google employee had reviewed them.

A footnote attached to this paragraph states the new "standard procedure" is to obtain a warrant before opening a CyberTip "when the provider has not viewed the images." The court notes it is "not clear from the record" that this is standard practice at other ICAC offices, or whether they've also been instructed to obtain warrants first from now on. So, more challenges are likely on the way.

The lower court refused to suppress the evidence obtained from Wilson's email account and home, deciding the private search that had never actually occurred was a private search, salvaging the warrantless search that immediately followed the forwarding of the tip by NMCEC.

The Appeals Court disagrees.

First, the government search exceeded the scope of the antecedent private search because it allowed the government to learn new, critical information that it used first to obtain a warrant and then to prosecute Wilson. Second, the government search also expanded the scope of the antecedent private search because the government agent viewed Wilsons email attachments even though no Google employeeor other personhad done so, thereby exceeding any earlier privacy intrusion. Moreover, on the limited evidentiary record, the government has not established that what a Google employee previously viewed were exact duplicates of Wilsons images. And, even if they were duplicates, such viewing of others digital communications would not have violated Wilsons expectation of privacy in his images, as Fourth Amendment rights are personal.

Matching hashes is not enough. And that's all Google and NMCEC had when they forwarded the tip down the line to law enforcement. Just because both entities retain hashes (NMCEC retains images as well) that matched the hashes of the attachment doesn't mean there's no subjective expectation of privacy in one's own email account. A strong probability that the files were child porn is the perfect basis for a warrant request. Unfortunately, the officer decided to engage in a search without one.

Wilson did not have an expectation of privacy in other individuals files, even if their files were identical to his files. The corollary of this principle must also be true: Wilson did have an expectation of privacy in his files, even if others had identical files. If, for example, police officers search someone elses house and find documents evidencing wrongdoing along with notes indicating that I have identical documents in my house, they cannot, without a warrant or some distinct exception to the warrant requirement, seize my copies. I would retain a personal expectation of privacy in them, and in my connection to them, even if law enforcement had a strong basis for anticipating what my copies would contain. A violation of a third partys privacy has no bearing on my reasonable expectation of privacy in my own documents. The government does not argue otherwise.

All of the evidence is suppressed, since it all relies on the initial lawless search. The ICAC in San Diego has, belatedly, put a warrant requirement in place. It won't salvage this conviction, which has been reversed. And it may result in similar suppressions and reversals if the same search-first procedure was used in other child porn cases. But it's always easier to bypass the warrant and get to the searching. After all, not every court will see the facts the same way, as is evidenced by the lower court's refusal to suppress the evidence. But it's now crystal clear in the Ninth Circuit: get a warrant.

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Filed Under: 4th amendment, child sexual abuse materials, scanning, warrant

Read more:
Court Tells Child Sexual Abuse Investigators That The Private Search Warrant Exception Only Works When There's A Private Search - Techdirt