The Volokh Conspiracy - The First Amendment and Information Gathering:

Prof. Mark Kleiman (The Reality-Based Community) and Prof. Michael Froomkin (Discourse.net) rightly condemn this move by some New York officials:

Richard Falkenrath, the NYPD's deputy commissioner for counterterrorism, ... and Mayor Michael Bloomberg have asked the City Council to pass a law requiring anyone who wants to own [machines that detect traces of biological, chemical, and radiological weapons] to get a permit from the police first. And it's not just devices to detect weaponized anthrax that they want the power to control, but those that detect everything from industrial pollutants to asbestos in shoddy apartments. Want to test for pollution in low-income neighborhoods with high rates of childhood asthma? Gotta ask the cops for permission. Why? So you "will not lead to excessive false alarms and unwarranted anxiety," the first draft of the law states.

Last week, Falkenrath made his case for the new law before the City Council's Public Safety Committee, where Councilman Peter Vallone introduced the bill and chaired the hearing. Dozens of university researchers, public-health professionals, and environmental lawyers sat in the crowd, horrified by the prospect that if this law passes, their work detecting and warning the public about airborne pollutants will become next to impossible. But Falkenrath pressed on, saying that unless the police can determine who gets to look for nasty stuff floating in the air, the city would be paralyzed by fear.

"There are currently no guidelines regulating the private acquisition of biological, chemical, and radiological detectors," warned Falkenrath, adding that this law was suggested by officials within the Department of Homeland Security. "There are no consistent standards for the type of detectors used, no requirement that they be reported to the police department—or anyone else, for that matter—and no mechanism for coordinating these devices.... Our mutual goal is to prevent false alarms ... by making sure we know where these detectors are located, and that they conform to standards of quality and reliability." ...

As the opposition mounted, Vallone pulled the proposed legislation just before the meeting's end and agreed to give it a second look.... He and his colleagues will try to accommodate all the concerns when they redraft the bill, he said, but one way or another, the cops are going to have this new power....

This is the very model of government paternalism, and likely counterproductive government paternalism at that. But Mark asks: Does it violate the First Amendment, because it deliberately interferes with information gathering?

I think the answer has to be: Nobody knows. The Supreme Court has said surprisingly little about restrictions on information gathering (as opposed to restrictions on information dissemination, which is what most of the Court's Free Speech/Press Clause caselaw is about).

We do know that generally speaking there's no First-Amendment-based information gathering defense to generally applicable laws, such as bans on travel to Cuba and the like. We also know that there's generally no First Amendment right of access to information that's in the government hands (except for a historically sanctioned presumptive right of access to criminal trials, which lower courts have reasonably extended to civil trials and to most court filings in civil and criminal cases).

But here the government is proposing the licensing of certain products precisely because of a fear that the products will be used to gather information, and then to disseminate the information in ways that the government claims might be misleading. That sure sounds bad, because the government's rationale is frankly concerned with the communicative impact of the speech that will eventually flow from use of the devices.

Moreover, the fear isn't just that the devices and the speech they facilitate will infringe privacy (a rationale for banning certain forms of information gathering, such as unauthorized recording of conversations, and potentially even the distribution of certain kinds of eavesdropping restrictions). Rather, it's that it will lead to speech that will mislead and frighten the citizenry into doing foolish things — a classically disfavored rationale in First Amendment law.

So I think there's a perfectly credible First Amendment argument against any such ban — as well as lots of first-rate policy arguments (for some plausible-seeming examples, see this American Industrial Hygiene Association letter). But there's no Supreme Court caselaw squarely confronting this subject, so predictions are hard to make (though if anyone can point me to some useful lower court caselaw on the subject, I'd love to read it).

UPDATE: Thanks to John Wilson from the UCLA Law Library, I now have the text of the proposed amendment:

(Show the proposed language.)

Proposed Int. No. 650-A

By Council Members Vallone Jr., Addabbo Jr., Comrie, Fidler, Gentile, Nelson, Recchia Jr., Stewart and White Jr. (by request of the Mayor)

A Local Law to amend the administrative code of the city of New York, in relation to permits for biological, chemical and radiological detectors.

Be it enacted by the Council as follows:

Section 1. Legislative purposes. The Council recognizes the need to protect the citizens of New York City from possible terrorist attacks involving chemical, biological, radiological, or nuclear devices or weapons. As part of this effort, the Council understands the importance of the deployment of certain instruments designed to detect the presence of certain chemicals, biological agents, and radiation in the environment. While the proliferation of these capabilities may represent a positive development in furthering public safety, such instruments should be deployed and operated only with the knowledge of the Police Department and other appropriate City agencies. Moreover, the City has an interest in the reliability and effectiveness of these instruments so that their deployment will not cause excessive false alarms and unwarranted anxiety that a large-scale public emergency is occurring. Therefore, the Council finds that, to further the public safety, the possession and deployment of biological, chemical and radiological detectors should be regulated by the issuance of permits and the promulgation of standards for such detectors and their use, and that alarms triggered by such detectors should be immediately reported according to prescribed procedures.

§ 2. Title 10 of the administrative code of the city of New York is amended by adding a new chapter 8 to read as follows: ...

§ 10-801 Definitions. For the purposes of this chapter, the following terms shall have the following meanings.

a. The term “alarm” shall mean any alarm or other indication of a biological, chemical or radiological detector that indicates the presence of a biological agent, chemical agent, radiation or radioactive substance at the level or levels prescribed pursuant to section 10-807 of this chapter.

b. The term “biological agent” shall mean any micro-organism, including bacteria and viruses, or structural components or products of such micro-organisms, including toxins, whether engineered or naturally-occurring, that are capable of causing death, disease or other biological malfunction in a living organism, deterioration or poisoning of food or water, or deleterious alteration of the environment.

c. The term “biological detector” shall mean an instrument used for the purpose of monitoring the release or presence of one or more biological agents, including an instrument which samples the atmosphere for such purpose.

d. The term “chemical agent” shall mean a chemical which through its chemical action on life processes can cause death, serious physical injury or permanent harm to humans or animals and shall include but not be limited to toxic industrial chemicals and chemical warfare agents as identified by the commissioner.

e. The term “chemical detector” shall mean an instrument used for the purpose of monitoring the release or presence of one or more chemical agents, including an instrument which samples the atmosphere for such purpose.

f. The term “commissioner” shall mean the police commissioner of the city of New York or his or her designee.

g. The term “deploy” shall mean use or operate a biological, chemical and radiological detector, and “deployment” shall mean the use or operation of such a detector.

h. The term “permit” shall mean the permit issued by the commissioner for possession or deployment of a biological, chemical or radiological detector.

i. The term “radioactive substance” shall mean a substance that emits ionizing radiation including alpha, beta, gamma or neutron radiation.

j. The term “radiological detector” shall mean an instrument used for the purpose of monitoring the release or presence of radiation or a radioactive substance.

§ 10-802 Permits for possession or deployment of biological, chemical and radiological detectors.

a. It shall be unlawful for any person to possess or deploy a biological, chemical or radiological detector in the city of New York unless such person holds a valid permit therefor, provided that the commissioner in his or her discretion may exclude by rule any class or type of biological, chemical or radiological detector that shall not require such permit because requiring a permit therefor would not further the purposes of this chapter.

b. This section shall not apply to biological, chemical and radiological detectors:

(1) possessed or deployed by the department of health and mental hygiene, the fire department, or any other city agency authorized by the commissioner to possess or deploy a biological, chemical or radiological detector without a permit; or

(2) possessed by any person, without deployment, for the sole purpose of (i) selling such detector to another person for deployment by another person or (ii) transporting such detector from one location to another.

§ 10-803 Application for permit.

a. Application for a permit to possess or deploy a biological, chemical or radiological detector, or for renewal of such permit, shall be made to the commissioner upon such form as the commissioner shall prescribe and shall contain such information as the commissioner may require, including but not limited to a detailed description of the biological, chemical or radiological detector to be possessed or deployed, the manner in which such detector will be installed and maintained, the manner by which such detector will indicate or transmit an alarm, and the proposed emergency action plan to be implemented in the event of an alarm. Applicants shall affirm the truth of the contents of the application under penalty of perjury.

b. There shall be no fee required for processing such application.

c. The commissioner shall review the application and investigate the information contained therein, requesting and receiving from the applicant any further information as may be necessary for his or her determination. The commissioner may consult as appropriate with other city agencies with respect to such application or investigation, including but not limited to the department of health and mental hygiene, the fire department and the department of environmental protection.

d. Applicants also may be required to meet with the police department and other appropriate city agencies in order to coordinate potential emergency responses to an alarm indicated or transmitted by a biological, chemical or radiological detector.

e. An application for a permit or for renewal thereof will be approved and a permit will be issued by the commissioner if he or she determines that the application and the biological, chemical or radiological detector to be possessed or deployed meet the requirements of this chapter and any rules promulgated hereunder. Such permit shall be issued upon such terms and conditions the commissioner may prescribe, including but not limited to the requirements set forth in section 10-807 of this chapter. If the application is disapproved, the commissioner shall so notify the applicant, including any reasons for the disapproval.

§ 10-804 Permit term. A permit issued pursuant to this chapter shall expire on the last day of the fifth December after the date of issue and may be renewed for five-year terms thereafter by submission of an application for renewal as described in section 10-803 of this title.

§ 10-805 Notifications. a. Following issuance of the permit, the permit holder shall immediately notify the commissioner of any material change in the information contained in the application or of other relevant circumstances established by rule of the commissioner, including but not limited to the acquisition of a biological, chemical or radiological detector different from the detector for which the permit was issued. Upon notification of such change, the commissioner may suspend, revoke or amend the permit and/or direct that the holder submit an application for a new permit.

b. Any person deploying a biological, chemical or radiological detector shall immediately notify the police department if such detector indicates an alarm, notwithstanding whether the person holds a permit for such detector, by following such procedures as are prescribed by rule of the commissioner and/or are included as a term of the permit itself....

§ 10-807 Rules. a. The commissioner is authorized to promulgate such rules as he or she deems necessary to implement the provisions of this chapter.

b. To promote the legislative purposes of this chapter, such rules may include but are not limited to:

(1) minimum technical standards and capabilities that must be met by biological, chemical and radiological detectors, as determined in consultation with other appropriate city agencies, including but not limited to the department of health and mental hygiene and department of environmental protection;

(2) requirements relating to the manner in which such detectors will indicate or transmit an alarm;

(3) the thresholds of an indicated biological agent, chemical agent, radiation or radioactive substance, as determined in consultation with the department of health and mental hygiene and the department of environmental protection, at which the police department must be notified by the permit holder or other action by such permit holder must be taken;

(4) requirements relating to the installation and maintenance of such detectors;

(5) requirements relating to the means by which the police department will be notified in the event of an alarm;

(6) emergency response protocols and any other requirements for the emergency action plan to be implemented in the event of an alarm, including a requirement that permit holders comply with the instructions of police department personnel and cooperate in any investigation resulting from such alarm;

(7) requirements relating to the character and fitness of applicants to possess or deploy such detectors;

(8) requirements relating to the responsibility of applicants and permit holders to provide additional information upon material change to information contained in the permit application or circumstances affecting the permit;

(9) circumstances under which the commissioner may direct those possessing or deploying a biological, chemical or radiological detector to surrender possession and/or discontinue deployment of such detector; and

(10) the grounds for the refusal to issue, revocation or suspension of a permit and the procedures to be followed in the event of such refusal to issue, revocation or suspension.

§ 10-808 Penalties.

a. Any person who violates subdivision a of section 10-802 or section 10-805 of this chapter or any rule promulgated pursuant to section 10-807 of this chapter shall be guilty of a misdemeanor.

b. The commissioner may suspend or revoke a permit upon his or her determination that: (1) an application contains a material false statement; (2) the permit holder or his or her authorized employees or agents have failed to comply with this chapter, the rules promulgated hereunder, or the terms and conditions of a permit; (3) the biological, chemical or radiological detector for which a permit was issued has failed to be in compliance with such chapter, rules or permit; or (4) the permit holder or his or her authorized employees or agents have failed to comply with the instructions of the police department or cooperate in any investigation relating to the permit or to the biological, chemical or radiological detector for which a permit was issued....

(Hide the proposed language.)

	[Eugene Volokh, January 30, 2008 at 6:47pm] Trackbacks The First Amendment and Information Gathering: Prof. Mark Kleiman (The Reality-Based Community) and Prof. Michael Froomkin (Discourse.net) rightly condemn this move by some New York officials: Richard Falkenrath, the NYPD's deputy commissioner for counterterrorism, ... and Mayor Michael Bloomberg have asked the City Council to pass a law requiring anyone who wants to own [machines that detect traces of biological, chemical, and radiological weapons] to get a permit from the police first. And it's not just devices to detect weaponized anthrax that they want the power to control, but those that detect everything from industrial pollutants to asbestos in shoddy apartments. Want to test for pollution in low-income neighborhoods with high rates of childhood asthma? Gotta ask the cops for permission. Why? So you "will not lead to excessive false alarms and unwarranted anxiety," the first draft of the law states. Last week, Falkenrath made his case for the new law before the City Council's Public Safety Committee, where Councilman Peter Vallone introduced the bill and chaired the hearing. Dozens of university researchers, public-health professionals, and environmental lawyers sat in the crowd, horrified by the prospect that if this law passes, their work detecting and warning the public about airborne pollutants will become next to impossible. But Falkenrath pressed on, saying that unless the police can determine who gets to look for nasty stuff floating in the air, the city would be paralyzed by fear. "There are currently no guidelines regulating the private acquisition of biological, chemical, and radiological detectors," warned Falkenrath, adding that this law was suggested by officials within the Department of Homeland Security. "There are no consistent standards for the type of detectors used, no requirement that they be reported to the police department—or anyone else, for that matter—and no mechanism for coordinating these devices.... Our mutual goal is to prevent false alarms ... by making sure we know where these detectors are located, and that they conform to standards of quality and reliability." ... As the opposition mounted, Vallone pulled the proposed legislation just before the meeting's end and agreed to give it a second look.... He and his colleagues will try to accommodate all the concerns when they redraft the bill, he said, but one way or another, the cops are going to have this new power.... This is the very model of government paternalism, and likely counterproductive government paternalism at that. But Mark asks: Does it violate the First Amendment, because it deliberately interferes with information gathering? I think the answer has to be: Nobody knows. The Supreme Court has said surprisingly little about restrictions on information gathering (as opposed to restrictions on information dissemination, which is what most of the Court's Free Speech/Press Clause caselaw is about). We do know that generally speaking there's no First-Amendment-based information gathering defense to generally applicable laws, such as bans on travel to Cuba and the like. We also know that there's generally no First Amendment right of access to information that's in the government hands (except for a historically sanctioned presumptive right of access to criminal trials, which lower courts have reasonably extended to civil trials and to most court filings in civil and criminal cases). But here the government is proposing the licensing of certain products precisely because of a fear that the products will be used to gather information, and then to disseminate the information in ways that the government claims might be misleading. That sure sounds bad, because the government's rationale is frankly concerned with the communicative impact of the speech that will eventually flow from use of the devices. Moreover, the fear isn't just that the devices and the speech they facilitate will infringe privacy (a rationale for banning certain forms of information gathering, such as unauthorized recording of conversations, and potentially even the distribution of certain kinds of eavesdropping restrictions). Rather, it's that it will lead to speech that will mislead and frighten the citizenry into doing foolish things — a classically disfavored rationale in First Amendment law. So I think there's a perfectly credible First Amendment argument against any such ban — as well as lots of first-rate policy arguments (for some plausible-seeming examples, see this American Industrial Hygiene Association letter). But there's no Supreme Court caselaw squarely confronting this subject, so predictions are hard to make (though if anyone can point me to some useful lower court caselaw on the subject, I'd love to read it). UPDATE: Thanks to John Wilson from the UCLA Law Library, I now have the text of the proposed amendment: (Show the proposed language.) Proposed Int. No. 650-A By Council Members Vallone Jr., Addabbo Jr., Comrie, Fidler, Gentile, Nelson, Recchia Jr., Stewart and White Jr. (by request of the Mayor) A Local Law to amend the administrative code of the city of New York, in relation to permits for biological, chemical and radiological detectors. Be it enacted by the Council as follows: Section 1. Legislative purposes. The Council recognizes the need to protect the citizens of New York City from possible terrorist attacks involving chemical, biological, radiological, or nuclear devices or weapons. As part of this effort, the Council understands the importance of the deployment of certain instruments designed to detect the presence of certain chemicals, biological agents, and radiation in the environment. While the proliferation of these capabilities may represent a positive development in furthering public safety, such instruments should be deployed and operated only with the knowledge of the Police Department and other appropriate City agencies. Moreover, the City has an interest in the reliability and effectiveness of these instruments so that their deployment will not cause excessive false alarms and unwarranted anxiety that a large-scale public emergency is occurring. Therefore, the Council finds that, to further the public safety, the possession and deployment of biological, chemical and radiological detectors should be regulated by the issuance of permits and the promulgation of standards for such detectors and their use, and that alarms triggered by such detectors should be immediately reported according to prescribed procedures. § 2. Title 10 of the administrative code of the city of New York is amended by adding a new chapter 8 to read as follows: ... § 10-801 Definitions. For the purposes of this chapter, the following terms shall have the following meanings. a. The term “alarm” shall mean any alarm or other indication of a biological, chemical or radiological detector that indicates the presence of a biological agent, chemical agent, radiation or radioactive substance at the level or levels prescribed pursuant to section 10-807 of this chapter. b. The term “biological agent” shall mean any micro-organism, including bacteria and viruses, or structural components or products of such micro-organisms, including toxins, whether engineered or naturally-occurring, that are capable of causing death, disease or other biological malfunction in a living organism, deterioration or poisoning of food or water, or deleterious alteration of the environment. c. The term “biological detector” shall mean an instrument used for the purpose of monitoring the release or presence of one or more biological agents, including an instrument which samples the atmosphere for such purpose. d. The term “chemical agent” shall mean a chemical which through its chemical action on life processes can cause death, serious physical injury or permanent harm to humans or animals and shall include but not be limited to toxic industrial chemicals and chemical warfare agents as identified by the commissioner. e. The term “chemical detector” shall mean an instrument used for the purpose of monitoring the release or presence of one or more chemical agents, including an instrument which samples the atmosphere for such purpose. f. The term “commissioner” shall mean the police commissioner of the city of New York or his or her designee. g. The term “deploy” shall mean use or operate a biological, chemical and radiological detector, and “deployment” shall mean the use or operation of such a detector. h. The term “permit” shall mean the permit issued by the commissioner for possession or deployment of a biological, chemical or radiological detector. i. The term “radioactive substance” shall mean a substance that emits ionizing radiation including alpha, beta, gamma or neutron radiation. j. The term “radiological detector” shall mean an instrument used for the purpose of monitoring the release or presence of radiation or a radioactive substance. § 10-802 Permits for possession or deployment of biological, chemical and radiological detectors. a. It shall be unlawful for any person to possess or deploy a biological, chemical or radiological detector in the city of New York unless such person holds a valid permit therefor, provided that the commissioner in his or her discretion may exclude by rule any class or type of biological, chemical or radiological detector that shall not require such permit because requiring a permit therefor would not further the purposes of this chapter. b. This section shall not apply to biological, chemical and radiological detectors: (1) possessed or deployed by the department of health and mental hygiene, the fire department, or any other city agency authorized by the commissioner to possess or deploy a biological, chemical or radiological detector without a permit; or (2) possessed by any person, without deployment, for the sole purpose of (i) selling such detector to another person for deployment by another person or (ii) transporting such detector from one location to another. § 10-803 Application for permit. a. Application for a permit to possess or deploy a biological, chemical or radiological detector, or for renewal of such permit, shall be made to the commissioner upon such form as the commissioner shall prescribe and shall contain such information as the commissioner may require, including but not limited to a detailed description of the biological, chemical or radiological detector to be possessed or deployed, the manner in which such detector will be installed and maintained, the manner by which such detector will indicate or transmit an alarm, and the proposed emergency action plan to be implemented in the event of an alarm. Applicants shall affirm the truth of the contents of the application under penalty of perjury. b. There shall be no fee required for processing such application. c. The commissioner shall review the application and investigate the information contained therein, requesting and receiving from the applicant any further information as may be necessary for his or her determination. The commissioner may consult as appropriate with other city agencies with respect to such application or investigation, including but not limited to the department of health and mental hygiene, the fire department and the department of environmental protection. d. Applicants also may be required to meet with the police department and other appropriate city agencies in order to coordinate potential emergency responses to an alarm indicated or transmitted by a biological, chemical or radiological detector. e. An application for a permit or for renewal thereof will be approved and a permit will be issued by the commissioner if he or she determines that the application and the biological, chemical or radiological detector to be possessed or deployed meet the requirements of this chapter and any rules promulgated hereunder. Such permit shall be issued upon such terms and conditions the commissioner may prescribe, including but not limited to the requirements set forth in section 10-807 of this chapter. If the application is disapproved, the commissioner shall so notify the applicant, including any reasons for the disapproval. § 10-804 Permit term. A permit issued pursuant to this chapter shall expire on the last day of the fifth December after the date of issue and may be renewed for five-year terms thereafter by submission of an application for renewal as described in section 10-803 of this title. § 10-805 Notifications. a. Following issuance of the permit, the permit holder shall immediately notify the commissioner of any material change in the information contained in the application or of other relevant circumstances established by rule of the commissioner, including but not limited to the acquisition of a biological, chemical or radiological detector different from the detector for which the permit was issued. Upon notification of such change, the commissioner may suspend, revoke or amend the permit and/or direct that the holder submit an application for a new permit. b. Any person deploying a biological, chemical or radiological detector shall immediately notify the police department if such detector indicates an alarm, notwithstanding whether the person holds a permit for such detector, by following such procedures as are prescribed by rule of the commissioner and/or are included as a term of the permit itself.... § 10-807 Rules. a. The commissioner is authorized to promulgate such rules as he or she deems necessary to implement the provisions of this chapter. b. To promote the legislative purposes of this chapter, such rules may include but are not limited to: (1) minimum technical standards and capabilities that must be met by biological, chemical and radiological detectors, as determined in consultation with other appropriate city agencies, including but not limited to the department of health and mental hygiene and department of environmental protection; (2) requirements relating to the manner in which such detectors will indicate or transmit an alarm; (3) the thresholds of an indicated biological agent, chemical agent, radiation or radioactive substance, as determined in consultation with the department of health and mental hygiene and the department of environmental protection, at which the police department must be notified by the permit holder or other action by such permit holder must be taken; (4) requirements relating to the installation and maintenance of such detectors; (5) requirements relating to the means by which the police department will be notified in the event of an alarm; (6) emergency response protocols and any other requirements for the emergency action plan to be implemented in the event of an alarm, including a requirement that permit holders comply with the instructions of police department personnel and cooperate in any investigation resulting from such alarm; (7) requirements relating to the character and fitness of applicants to possess or deploy such detectors; (8) requirements relating to the responsibility of applicants and permit holders to provide additional information upon material change to information contained in the permit application or circumstances affecting the permit; (9) circumstances under which the commissioner may direct those possessing or deploying a biological, chemical or radiological detector to surrender possession and/or discontinue deployment of such detector; and (10) the grounds for the refusal to issue, revocation or suspension of a permit and the procedures to be followed in the event of such refusal to issue, revocation or suspension. § 10-808 Penalties. a. Any person who violates subdivision a of section 10-802 or section 10-805 of this chapter or any rule promulgated pursuant to section 10-807 of this chapter shall be guilty of a misdemeanor. b. The commissioner may suspend or revoke a permit upon his or her determination that: (1) an application contains a material false statement; (2) the permit holder or his or her authorized employees or agents have failed to comply with this chapter, the rules promulgated hereunder, or the terms and conditions of a permit; (3) the biological, chemical or radiological detector for which a permit was issued has failed to be in compliance with such chapter, rules or permit; or (4) the permit holder or his or her authorized employees or agents have failed to comply with the instructions of the police department or cooperate in any investigation relating to the permit or to the biological, chemical or radiological detector for which a permit was issued.... (Hide the proposed language.)