The Limits of Abortion Sanctuary Laws

Episode Transcript
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Speaker 1 (00:04):
Welcome todake it happened here a podcaster. We occasionally have
introductions and mostly we have this and yeah that it's
it's the podcast. Things fall apart, things come back together again,
they fall apart again, we put them back together again. Yeah,
you know, you know the drill um. Yeah. And with
me is James. Hello, James, Hello, And speaking of things

(00:26):
falling apart, we're we're talking today about the what what
what it looks like when this sort of the interconnectivity
of the American judicial system comes apart under the weight
of dueling abortion laws. And with us to talk about
that is a lot of people who have written a
lot of very good stuff about this. So with us

(00:48):
is Ali Handra car Baio, who is a clinical instructor
at Harvard Law School Cyberlaw Clinic, where she works on
the intersection of gender and technology. Hello, welcome to the show. Um.
We also have Michelle McGrath who is a public defender
in New York City for like almost a decade and
specializes in bail and parole litigation. Michelle, Welcome to the show. Hey,

(01:11):
happy to be here. And finally we have Eva Pierre,
who's a senior litigation counselor where she works at the
intersection of reproductive and criminal law, and she is on
cases where folks are criminalized for their pregnancy laws. So
if you welcome, welcome to the show as well. So

(01:32):
y'all have written, Actually, I don't it occurs to me
that it's been long enough. This is still not published yet, right, Yes,
it's so, it's basically we submitted it to Cuney Law
Review waiting for edits. We expect our Law Review article
to be published in December. Um. So, but you know,
we've we've basically created a t l d R that

(01:54):
we we are collaborated for Slate, so we you know,
there's a hundred word article on Slate. You can read
that kind of condenses down our article from words as
much as we can. I we were we were graciously
provided the long one, and so we read the long one.

(02:14):
We're gonna really talk about it because yeah, it's it's
it's a it's a really interesting look at I don't know,
there's a lot of sort of points of Okay, so
I guess we should rerun and talk about what this
actually is, which is that one of the things that's
been happening in the last I mean, basically, since jobs

(02:35):
is a series of questions about what Okay, So it
is a series of questions about what happens if you
are in a state where abortions are illegal and you
go to another state and you get an abortion there,
and yeah, and there. There's lots of jurisdictional questions here
and yeah, and this article is a very very sort

(02:59):
of in depth and really interesting look at it. And
I guess, okay, I want to jump into this at
a kind of weird place, but I wanted to start
with one of the things that one of the things
that's in this article that's I haven't really seen much
discussion of is about the way that the sort of
safe harbor laws that states have been setting up are

(03:20):
being like if well, okay, the way that they can
potentially be in the way that previous safe harbor laws
for immigration stuff were sabotaged by the fact that like
all of the cops are sending like all of their
stuff to each other. So yeah, I was wondering if
you could talk a bit about that. I guess it's
like a lead into it. Yeah, I mean I with

(03:41):
respect to specifically, like how all the law enforcement is
talking to each other. I think Alejandro might know a
little more with respect to that. But when it comes
to the way these laws are being written there, they
really don't have the kind of teeth that sort of
the politicians are spinning to the public. They're sort of

(04:01):
letting folks think that, well, we would never we in
New York would never send you to Texas for anything
related to the criminalization of a pregnancy laws. Um. And
because of the way the law of extradition works in
the United States, which is actually a constitutional law, um,

(04:22):
it's going to be hard in a lot of ways
for them to resist that. And so we have our
article does talk about a little bit um in actually
great detail about how they could actually craft the craft
laws that would be a little bit different. Yeah. I
think one of the things that you know this just
this past week there was the story that came out
of Nebraska where Facebook provided the d MS of someone

(04:44):
who is uh being charged with you know, it wasn't
even charged with like like there wasn't a formal charge
of like committing an abortion, like the person that was
being charged it was like disposing of a body, like
and uh be hiding a body, And so Facebook like
released a statement and was saying like, well, we weren't

(05:05):
told that this had anything to do with an abortion,
and like that's the exact problem, right, is that when
states are going to seek extradition, they're going to bring
charges that have probably nothing to do with it in
the immediate like on its face to do with abortion.
It could just be like, you know, they can repurpose
all kinds of laws like endangerment of a minor, right, Like,

(05:27):
they can do all these things that like would ordinarily
like never apply in a pregnancy, but they can just
kind of do it just bring charges. Um. And so
you know, um, my colleague who's for training out here
said their content cook has has written about this successively
about like the criminalization aspect. But in terms of like
how you know, these these safe harbor states, you know,

(05:47):
these laws like are going to be very difficult. I
think it is just really what we're dealing with the
effects of surveillance capitalism. Right. So, like Facebook turned over
these d m s. Facebook has been in the process
of moving to end to end encryption, which basically would
have made this impossible to do in the first place
because it would have been similar to signal but what

(06:08):
Facebook did is because they realized that they would have
lost access to data around people's messages and what they're
talking about, they made it optional instead of buy default.
And suppose people who are not very tech savvy are
very familiar or understanding of you know, who has access
to the messages and whether the government can get access,
they might not know that they can set this to

(06:29):
end end to end encryption, And so essentially, like in
pursuit of profit, Facebook doesn't enable this privacy feature. But
this is the exact same kind of stuff, right, So,
like Facebook has access to this data, but there's also
this whole shady system of data brokers that gets access
to all kinds of data. And that's exactly how I
think we alluded to when you ask this question about

(06:52):
Ice having access to basically all this information on immigrants
that Eates had swore they would never share with federal
immigration officials. Like ICE is basically built this entire shadow
system where they're purchasing data about driver's licenses and all

(07:12):
this stuff basically by the purchasing it on the open market,
and that bypasses all kinds of formal data requisition requests, warrants, subpoenas,
all those things that would normally be required because it's
just freely available. So you know, suffice to say, as
much as these states may want to protect things on
that end in terms of data, it's going to be

(07:32):
incredibly hard to do so. And I think they're the
previous efforts around uh, safe Harbor for immigrants UM and
asylum states and things like that. Um, it's just gonna
be really hard to enforce. Some practice, however, on the
extradition side, when when like criminal charges are actually brought
that there there is some things that states can actually

(07:53):
do to help protect folks who are caught up with
any kind of abortion related charges in their states. UM.
I just also want to jump into say that the
system works the way that it works because nobody's monitoring it.
So when we're talking about law enforcement officials that are
talking to one another and getting information through very informal means, right,

(08:16):
things that probably by the book would take a warrant
to go from one place to the other just takes
Marcy calling over Janice that works at the other system
and getting something faxed over, even if they're not doing
it out of malice. It's just, oh, this is out
of convenience. It makes life a lot easier to get
information from this place to that place. And folks have

(08:38):
these informal systems that are set up that even when
the law says that they cannot do it, if we
don't have safeguards that I hate to say go after
people because it seems so carceral, but like that protects
what the intent of the law is. It has no teeth. Right,
If your law doesn't stop Marcy from calling Janice and

(08:58):
getting information on someone that they're not supposed to have
in your law, doesn't matter. It's kind of in a
nothing sandwich, right, um and I have plenty of thoughts
and stuff to say about the criminalization when we get
there later, because that's a lot of my work. But
I think that gets to what Michelle and Alhandra and
what um Conci who's not here have found. It's just

(09:20):
you gotta have something more than nothing sandwich. Is something
more than something that seems good on the surface and
doesn't actually help the people that we want to help.
And I want to sort of help folks sort of
understand how this plays out on the grounds when the
article we we give an example, right, So maybe I've
got a New Yorker who gets prescribed a medication that

(09:41):
would induce abortion, and you know, they bring it to
their friend in a state where that's criminalized, and they
give their friend the medication, the pregnancy ends. Maybe the
person is concerned and they go to the hospital. Um
quite often nurses and doctors are part of the criminalization
proce sess and so you know, maybe they call law

(10:02):
enforcement official based on this information, they get a subpoena
for that person's phone. So now they're in the phone
and they can find out, Wow, they got this medicine
from the New Yorker. Well, now now the person who
took the medication, perhaps it's charged with homicide. Right. I
think what's key here is that they're not necessarily going

(10:23):
to be charged with abortion. Maybe they're charged with homicide.
They're charged with the fanticide. And guess what, the person
who came from New York is now probably going to
be charged as an accomplice. So now we have a
warrant for for a homicide for the person in New York.
Because of all the national databases that we have, the NYPD,

(10:44):
the any of the law enforcement in New York is
going to see oh that New Yorkers wanted for homicide,
let me go get that person. Um. And so when
then that person comes in front of a judge, even
though New York is saying or Connecticut is saying, you know,
we're not going to give any resources to extradite someone

(11:05):
related to the determination of pregnancy, Well, they're just being
brought before law enforcement in front of a judge who
sees that they're one of the homicide right and so
on the ground, these laws don't have anything to stop them.
And and so we've sort of suggested things that involved
immediate rights to council people need to be released for

(11:26):
extradition um. And we can talk about some of those more,
but I think it helps to sort of give that
example to see how it's happening, how it would happen
in real life. There's something else I wanted to sort
of talk about with this, because one of the things
that on the surce surveillance front has been the way

(11:47):
in whish like what we're seeing now is sort of
the culmination of like a bunch of the types of
surveillance that have been inflicted on a bunch of different
groups of people. Do you have the anti sex worker stuff.
You have the deservation, the surveillance stuff that's music because
in Ograncy you have h the sort of post nine
eleven like I mean, this is where the sort of
fusion centers um come from, is the sort of like
post nine eleven security state build up. And then you

(12:10):
have the stuff that's been used to go after activists.
And I think that's been really interesting to me to
sort of, I mean incredibly like depressing too to watch
has been Yeah, Like I don't know, like I remember
like the few like one of the things if you
these fusion centers where like all of these sort of
like law enforcement agencies like share information with each other,
Like I don't know, like I remember in like they

(12:31):
were like sending one of my friends tweets around because
that was one of the things they were doing to
like go after people doing the protests. And like, I
don't know, I was interested in in in this question
of of these fusion centers because it's it's this I
don't know, it's this real sort of like like it
really seems like the sort of like the the next

(12:53):
step of where all of this stuff goes is, you know,
the fusion centers becomes becomes this place where it's really
really easy to bypass the law because you know, all
of this stuff is just getting shared anyways. And it
brings up this other problem which I was interested in,
which is about, like to what extent can the state
even control law enforcement? Because like, okay, like law enforcement,

(13:18):
are those like cops in general, very reactionary. There there's
you know, if if you you know, if if if
you go back into the history of the anti Bush movement,
there's a lot of them being like aided to better
by the cops. And I was wondering, I don't know
what what you think about, like like what what what
do you even do if the cops just decide they

(13:40):
don't want to follow the law at all, and they're
just you know, they're gonna they're just gonna keep passing
information on no matter what you do. I think Alejandra
and I probably uh different on views about where things
are going next, probably just because of the nature of
our our work and the things that we're dealing with
the most. So this is gonna be fine. So I
I actually think it's oh, well, yesterday, two days ago,

(14:02):
whenever this airs. However, many days ago, one of our
colleagues at IF When How. My colleague Laura Hus, who's
brilliant UM, has been working on this research project for
like the last two years tracking cases of when folks
are criminalized for self managed abortion. Why self managed abortion
because that is the abortions that were happening outside of
clinical spaces, right that were there were always questions about

(14:26):
who can be criminalized for self managing their care. There
weren't as many protections in the law for a lot
of helpers and things like that in self managed care.
So when her and her team looked at this data, UM,
what they found was that the biggest risk of criminalization
didn't actually necessarily come from UM external forces looking at

(14:48):
big data, right, but was actually cut like the hell
is other people because what they were finding was that
nearly the majority of cases of folks coming to the
attention of law enforcement was coming from medical professionals. So
I want to say, I have the numbers in front
of me somewhere it's UM. Well, so it's something like

(15:10):
of folks that were reported to the police were reported
by some sort of medical professional, whether that's a doctor
or a social work or a nurse or whoever that
was at a hospital when they were seeking care or
they were getting prenatal care at some point when they
found out they were pregnant. That's how they came to
the attention of law enforcement. Another of those folks that
came to the attention of law enforcement came to people

(15:30):
that they told information to that they entrusted, whether that
was a family member, a partner, a former partner, whoever
the heck right. So, what we're finding is that the
vast majority of people that came to the attention of
law enforcement was because of folks like actual people that
had the information, and then that turned into them being
individually targeted by police, and then that turned into their

(15:54):
data being mined on their actual physical devices, not like
big brother down but small other up right. So, uh,
when I certainly think about kind of how big data
can be used and manipulated and like absolutely messed up
to do a dragnet of folks, that's always kind of
a possibility that's swimming. But I think the immediate possibility is, like,

(16:17):
how do you protect your individual data on your individual devices?
What safety plan do you have in place about how
you use the internet wholesale? Because I'm a lawyer, I
can't tell people to commit crimes, but I can tell
people to be very careful about how you manage your
devices and how you manage information. Who do you tell
your business to full stop? Right, because that's how folks

(16:39):
are coming to the attention of law enforcement. But can
the laws control cops? I think what we generally see
is like probably not, um, But will the courts respond
to cops that work outside of the law? I think
the loyally awful answer is it depends on the jurisdiction
that you managed to find yourself in. Yeah, I think

(17:01):
I think Keith Gas just head it right on the head. Um.
You know, it's cybersecurity or weakest like as always a
human element, So like that's always going to be the
biggest concern, right, Like who are you telling about any
of this? Like who knows about it? Um? Like you know,
you know on at tentiontional as you're like with genderforming
care in Texas, like one of the one of the
plaintiffs in the lawsuit against Texas, like one of the

(17:25):
trans boys like that that was like you know, found
out about you know, Governor Abbott's letter to like basically
equate gender affirming care as child abuse attempted suicide and
then when was taken to the hospital, the hospital staff
then made a report to like the Department of Yeah,
so I mean this was all in in the A c.

(17:48):
L US lawsuit, and it's like it's just insane, right, So,
like that that's exactly the thing. Like the biggest risk
is always gonna be the human element, Like you're like
the doctors, the nurses, your friends, like family members, you know,
and it might even be people like you deeply trust
you just never know. And so that's always going to
be an aspect. But I think one of the biggest

(18:09):
risks as well is is that the amount of data
that we have now, like even if that can't be
used like in a proactive way to like target people
on the back ends, like once you do have that
kind of friend turning you in, like all of a sudden,
they have intent. They have like all of these things
from messages, they have location data. They show exactly where
you were at what time. Like it's it's just like

(18:31):
the perfect surveillance system that basically makes like any kind
of reasonable defense nearly impossible, right, Like they can show
where you were, who you talk to, um, And so
like I think that The best tweet that I saw
about this is from from someone who works at Digital
Defense Fund, and they're basically like there um actually might
not have been them. I just remember it was just

(18:52):
like there there is no conversation about criminal activity. There
is only conspiracy. Like basically it's like any time you're
chatting about any of this stuff, like it's basically like
that that in itself can be potentially considered like criminal conduct,
and like that can be used like as intent and
like all these things and like um in prosecution. So

(19:12):
like there's all of those aspects and I think just
to answer your your question like more broadly on on
what police can be done, like like to be honest,
I guess, attorney, it's been very very frustrating seeing qualified
immunity just being like increased, right like so so basically
there's been no appetite by the courts to like like

(19:33):
remove this doctrine or whittle it away actually like being
rapidly expanded, especially the aspect around um federal agents. Right
and now like there's some can you explain, sorry briefly
just what that is for people who don't know. So,
qualified immunity basically means that you can't bring a civil
rights lawsuit particular with it call like a nineteen eighty
three lawsuit, which is like the federal statute that allows

(19:55):
you to bring civil rights lawsuits against state and federal
in individuals for um any kind of civil rights abuses.
And it's everything from like discrimination on basis of race
to basically you know, the cop beating someone you know
within an inch of their life though so basically any
any kind of civil rights violations. It's called a three case,
which is like the citation is the actual law that

(20:17):
like dates back to the nineteenth century, like it's part
of um like the ku Klux Klan Act, which like,
so this is a long running like civil rights statute
that really gained prominence in the last sixty years. But
you know, so basically what qualified immunity does is it
basically says it, well, if it wasn't a clearly established
right when this abuse or violation of your civil rights happened,

(20:39):
the officer or the government official, it can't be held
liable for it. So basically like and the way that
they do it is very strictly interpreted. It was like
clearly established right. So it's like, well it wasn't clearly
established right that you weren't supposed to be able to
be beaten with a baton, like and it's just like
what like it's some of these cases get really crazy.

(21:00):
I'm not an expert on this by any means, but
like I've I've you know, come across a few, and
it's it's absolutely insane, Like how how like narrowly they'll
they'll oftentimes like define what like clearly like it's not like,
you know, broadly defined right of like maybe police officers
shouldn't beating people, um, but you know, and I think
it was it was even crazier is that this large

(21:21):
or there's an upcoming lar of the article by this
professor that I was just came across the other day
and like apparently there is a whole provision of nineteen
of the section that has been omitted from the Federal
Register for a hundred and like forty years. Basically like
a clerk omitted a section and this large like this

(21:43):
this um like this lari Arga basically uncovered this omission
that should have been in the rest it passed in Congress.
I like, but hey, if you we didn't, it wasn't
a clearly established, right, Alejandra, So does it really apply?
I The one that I'm like haunted by that that
I read about that was that was one of the

(22:04):
qualified beaut cases was like there was a guy who
got lit on fire by a cop with the taser,
and the courts ruled that because because there hadn't been
a prior instance of someone typing like that, you don't
have clearly established right for a cop you on fire
with the taser. Yeah, and you know you can sky
burned to death because again you got lit on fire
with a taser because because there wasn't a clearly things
like this is like this is like the worst, Like yeah,

(22:26):
the secret is it's never it's never clearly established like
like mostly folks lose these lawsuits. And I mean this
is where you know, I think folks need to recognize
and I say this very much as a lawyer, that
the law is not, at the end of the day,
was going to save us like collective organizing and working

(22:47):
together to keep each other safe. Is because the law
is not designed to hold police accountable. It is not
designed to keep people out of jail and back to
designed to do the opposite right, And I think We're
going to see a whole lot of folks start to
understand how criminalization works in a way that they may

(23:09):
not have realized before. And to your question, like as
a public defender in New York City who spent many
of those years in the bronx, like, no, the police
are not accountable to anyone, and they continually do unlawful
things all day. And this is part part of one
of the solutions. And again, all of these are stock

(23:29):
gap measures so that people have time to plan and
plot and organize and and and do what they need
to do. But is that in these states that are saying, oh,
we're not you know, we're going to keep state resources away. No,
no one shall use state resources to move someone for
any of these you know, criminalization of pregnancy. Um. But

(23:50):
we imagine that law enforcement is generally a rather conservative
group of people will simply disagree with that law and
probably at times do things anyway, right, And we can
file a lawsuit later, but that's not really preventing the
harm in the interim, right, Like someone's going to be incarcerated.
All of these things are going to happen. And so
one of our proposals is that it should be crystal

(24:12):
clear that any any state actor who does participate in
such extradition can be sued individually. They will have none
of this qualified immunity. It will not exist. Now. Listen,
this seems very reasonable to me and to us. But
do I think it's something that the legislature will actually pass.

(24:33):
I'm not particularly optimistic about most of our proposals on
this because it will mean a lot of other folks
who will not be criminalized in addition to m folks
whore criminalized proportion. But so so I do think that
that that does police. You have a problem with rampant
police impunity uh in this country, UM, and it will

(24:54):
show up here just like it does in many other sectors.
I think sometimes when we talk about criminalization of abortion wholesale,
for folks that have not been working in and about
repro it feels very new, like this is something that
we need to kind of like gird our loins and
prepare for. But folks that have been working in in
the r hr J movements, reproductive rights, health injustice movements, UM,

(25:19):
we have been talking about criminalization for a long time.
And the reason that we've been talking about criminalizations because
it's been happening for a long time. So I was
talking about my colleagues research that, um, the preliminary and
FO just came out. So when she was combing through
all of these like different clerks offices all over the country,
she unearthed like sixty one cases of folks being criminalized

(25:41):
with self managed abortion in twenty states. Now we only
have three states that have laws criminalizing self managed abortion
left on the books. So holy crap. The fact that
there have been prosecutions in twenty states when only I
think at the time that some of these cases were
about only like five or six states. Add these laws
on the books tell us that prosecutors are very, very

(26:04):
creative in the ways that they go after people. So
the likelihood of always seeing abortion written at the top
of the warrant is going to be low. And then
in some states we are going to start seeing it
because they are going to if they haven't already criminalized
abortion wholesale, any kind of abortion right, all abortions are
going to become self managed because their folks are not

(26:25):
able to get clinical care. So it's it's not new,
and I think that's one of the things that I
want to make sure that folks understand that there, like
criminal defense attorneys can and can deal with this because
it's just the same messed up ways that they charge
people in a variety of other cases. But I think
the shock and awe um that's hitting some folks who

(26:49):
the criminal legal system doesn't move within their lives is
I need folks to get out of shock and all
quick and get into work mode because some of the
things that I'm seeing on the Internet while we're talking
about how hell is other people and how we can
protect ourselves in our communities, Um, some of the ways
that folks are talking about this on the Internet shows

(27:10):
that they're not people that have had the impact of
the criminal legal system necessarily touched their lives, right like
folks that think they're doing op set on Twitter by
like if you want to get a manicure, you can
come to my state and I'll pick you up for
your manicure. And that's when we talk about how cases

(27:32):
get put together on the back end. And I think,
um Michelle can probably speak to this too, like as
a public defender, when you're seeing how when you have
a very motivated prosecutor a cop that actually knows how
to do their job in the information that they're able
to gather when they investigate. Yes, they will pull your tweets. Yes,
even if it's not your case, they will pull your

(27:54):
tweets and connect that person that got their abortion to
the tweets that you put online to show that they
intended to go to your place to go and get
an abortion, and then try to use those things to
prosecute them over here. So, even if you're willing to
take the risk with your own life, if you're trying
to help people, don't put them in a position that
they can be harmed by some of the things that

(28:15):
we say out loud. Because if you're living in a
state where you're not afraid of criminalization, but the person
you are trying to help is in a state that
and they have to go back to somewhere they can
be criminalized, you've got to think about how you're protecting them.
That's my soapbox. Rant. I think that's really valuable. Actually,
this like we start let in the Trump administration to

(28:35):
this like legal constitutional magic that like like the steth Abrimson,
the the Twitter thread guy right like it it's us. Yeah,
it distracts from useful organizing a mutual aid because people
are just like, well if this and this and this
and this and this, and then like I understand this
and no one else does and this is a special secret.

(28:56):
And then if we do this and turn around three
times and go through the wardrobe, indulge up will be
impeached or you know, I can give you it a
safe a safe of safe access to reproductive healthcare rather
than just doing the work. And I think another part
of what was going on here and this has been
something that like you know, if if you talk to
people who've been doing this, like okay, if if if

(29:20):
this is the thing you genuinely want to do, there
are people who have been doing this kind of work
for decades and decades and decades of decades, and they
know largely what is safe and what isn't and more
stuff is the factor for not And the way that
this sort of like like the kind of sort of like, hey,
I'm gonna go do this on my own. I have
I've never done this before. I don't know what I'm doing,
but here I'm going to sort of signal that I

(29:42):
can do this thing. Like go talk if you want
to do this, go talk to people who have been
doing it. For ages and go support them because, like,
you know, again, like the reason the reason we're here
in the first place is because that this whole, like
the entire right to abortion has for literally decades, been
support by just a really tiny number of incredibly underfunded

(30:04):
and understaffed people in organizations. So like, go help them,
don't like strike out on your own to boldly get
you and everyone you're working with arrested. Yeah, I think
you know, some of that is. You know, I think
some people have some good intentions, but my god, like
that energy can be spent in so much more productive ways,
and it's it's kind of unfortunate. I think that the
worst aspect of it, though, is like the tech bros

(30:26):
coming in and being like I'm going to save this
face with We're going to create a dow and like
distribute funds, and I'm like, oh my god, Like I'm
just sitting here, like you know, because this is something
like you know, I've looked into a students like this
earlier this year, like you know, how payment transactions could

(30:46):
be used, um and basically how there's basically almost no
security with with payment transactions, right, like like if you're
using Venmo, which which in and of itself has like
a social media functions, so like you know, you can
see when you're your friend, you know, Joe is like
getting brunch on Sunday, and like, you know, they could
you know, if you're not sending that to private by

(31:07):
default like that that's already a problem. But basically, like
you know, they can get access to those records pretty easily,
um in a much easier way. And you know, one
of the things we we we started to look at,
like towards the end was like, oh, you know, as
you know, had some some students being like we can
you can you use crypto? Can you use like bitcoin?
It's like you still have to interact at some point
with a financial institution and they can tie these things back.

(31:29):
It is not that exceptionally hard, especially like now it's
been shown that like coin bases like cooperating with the
FEDS and basically acting like a giant honeypot. So like
I just I finally wish that people just like realize
that like technology is not going to save us here,
like it can help if used wisely and creatively, but

(31:49):
don't think that like you're just gonna like do this
one little neat trick, like as James was saying, and
then suddenly we're gonna fix this because it's not right,
Like this is going to take a million different solutions
with a million different people doing all the little things
that they can to push back, and like that's one
of the things I think we we tried to be
very hopble about in our papers, like, look, none of
this is a silver bullet. We're just trying to provide

(32:11):
some concrete solutions that states can take and some stuff
that they can take. But we realize that nothing is
ever going to be perfect to solve this kind of
Pandora's box. It's been opened by Aldo and all these
like right wing reactionaries on the court. So like, I

(32:36):
guess speaking of things that are not silver bullets will
not save us. Um, yeah, I guess could we get
a bit more into looking at what the sort of
like It's like a lot of the article is talking
about I guess the that the history of extradition, uh,

(32:57):
and how how that sort of been understood and interpreted,
And so I guess I was wondering, can we go
into talking about what the sort of legal stuff is
going to look like when it's like, you know, if
if we start getting these large showdowns between like states
with like actually sort of like you know, if states
actually start trying to have sanctuary laws that are like

(33:17):
have teeth and are good, what what what is that
sort of what is that going to look like? Yeah,
so this is a kind of part that I focused
on in the article. And so basically a lot of
people aren't aware about this because it's not really a
contested area of the Constitution. But basically when the Constitution
was drafted um and ratified, it contained what was called
the Extradition Clause, and basically what it said is that,

(33:38):
you know, all the states have a duty to turn
over fugitives from other states that have been charged with
the crime and have fled into those states. Is the
United States kind of were It's a federal system, so
like every state is still considered kind of its own
sovereign in some ways, in a very like quasi sovereign way.
And so there was a question about you know, since

(33:59):
all criminal prosecutions, basically, especially the inception of the United States,
were done at the state level, you know, what what
happens when somebody crosses and across state lines, Like, how
are we going to handle that. And so basically this
was you know, one of the drafts. And initially they
tried to set it at a higher bar, like to
be like high crimes and misdemeanors, similar to kind of

(34:20):
the impeachment clause, and you know, they whittled it down
to and basically made it very applicable to set all
crimes um. But it really did not get much play
until basically in the eighteen forties when obviously the tension
around slavery picked up, right, so you had enslaved people

(34:42):
escaping to the north and the South being very angry
about that and wanting the North to to return um
the escaped enslave folks and the North being like no.
And Congress tried to figure out a way to like
threads some kind of needle, but made it ten times
worse and put us on an accelerating path towards Civil

(35:03):
war by passing the Fugitive Slave Act of eighteen fifty,
and a bunch of radical abolitionists in the Northeast were like,
we don't ever want to comply with this right, So
like Vermont passed this bill called the Habeas Corpus Act,
which basically created all kinds of legal procedures so that
Southern bounty hunters wouldn't just come into the state and

(35:24):
just kidnap, you know, the first black person they saw,
because they assumed that they were been an escaped and
slave person rather than a free person, and you know,
and it was trying to stop that kind of issue
of kidnappings and also just not to comply with this,
you know, the institution of slavery, because there were people
who had escaped slavery and more in the North, and

(35:44):
so it was causing all kinds of tension. And while
like the Vermont Law was never fully tested, it did
create a lot of incendiary back and force between the
North and the South and the press. And it was
really interesting like reading some of these old like newspaper
articles from the eighteen like from eighteen fifty, because it
was like basically the press and Richmond and the press

(36:06):
in Boston like taking stabs at each other, and it
was like the eighteen fifty version of ship posting, because
they were like one person was just like this is
nullification made easy, and like basically with like it's just
it was. It was the surreal thing like if you know,
if you get a chance when when our full article
comes out in December, there'll be some some highlights from

(36:28):
that and the notes UM. But basically what it really
got tested was in eighteen sixty one. The case started
in eighteen fifty nine, though it's called Kentucky be Dennistent,
and so what essentially happened is there was someone who
aided Um and it's like person escape Kentucky and get
to Ohio. And basically the governor of Ohio was an
abolitionist and was like, I don't want to comply with

(36:50):
this right and I do not want to I don't
believe this is a crime because this is not a
crime in our state, And the Attorney Journal of Ohio
basically wrote a long legal memo stating that this this
is a crime not known to the laws of civilization
or man. So basically, yeah, they find it want to
read to the Supreme Court. And Chief Justice Taney also
notable for dread Scott decision, so like absolutely just terrible

(37:14):
court like they were. This came I think about like
three weeks before the Civil War, so this was like
I think it'sould in like March of eighteen one, so
basically like three weeks before Fort Sumter got like sacked
by by the South. Um. But basically what it did
was is that it said states actually can't utilize any
discretion in extradition, So like the like the governor of

(37:38):
Ohio can't say, like, I have concerns about human rights
and that this isn't a crime in our state. Right,
there's not this dual criminality analysis, and we're concerned about
human rights and all these things. So the Supreme Court
basically said, no, states don't have that discretion, which you know,
but they essentially split the baby by by then saying
federal courts can't issue a ridom and damus, which is

(37:59):
basically an order for a government official to do something. Um,
they said that federal courts couldn't do that to a
state governor an extradition. So basically it means that like,
states don't have a discretion, but federal courts can enforce it.
So therefore it's just a non issue. Right. Fast forward
a hundred and twenty years and we get to a
case called Pero Rico v. Brand's Dad, which basically, somebody

(38:20):
committed murder in Perto Rico led back to Iowa and
then was software extradition back to Perrico. And there's a
huge element of racism here because you know, they were
concerned that a white man couldn't get a fair trial
in Puerto Rico, which is just deeply offensive. Um. And
so they were. And there was also a question of
like territoriality, right, because Perdorico is a territory. I wasn't

(38:40):
sure if they had to comply with the extradition clause.
And so essentially the Supreme Court said, yes, federal courts
can comply with or can issue it a rid of
mandamus to to ensure extradition. So essentially what it did
was it partially overturned the Kentucky v. Does in case,
but upheld the central ruling of basicist states have no discretion.

(39:04):
So what does that mean? Basically that states can't really
stop the extradition of someone in their in their um jurisdiction,
even if they have extreme concerns. Right. So if you
have like, let's like going back to Michelle's example earlier,
someone who sends their friends like abortion pills um from
New York to let's say Texas, right, and Texas is

(39:26):
seeking extradition in New York. It's like, well, that's not
a crime. Here, so we don't want to extradite Um,
you know, the states will typically be hard pressed. But
there's kind of two kind of or there's one major
issue with like the extradition part right, actually has to
apply to someone who's quote unquote an actual fugitive, meaning
that they had to actually be present in the state

(39:47):
when the crime occurred. And the commission of the crime
can't in itself create what's called constructive presence. You have
to be corporeally present in the state, meaning you have
to be physically present. You can't just like the commission
of the crime doesn't constitute that. So in this instance, um,
you know, the person who says a pill in New

(40:08):
York technically like constitutionally does not have to be extradited, right, Like,
they can contest that. The problem is, as Michelle pointed out,
is that, you know, the extradition causes it exist today
is pretty much almost entirely just a formality that is
waived basically almost every single time. And so the courts,

(40:30):
the like the state attorneys, the district attorneys, even defense
attorneys might not be familiar with that and might not
know that that's something that they could potentially contest or
it's even something that they can um that that is
a potential constitutional issue, right, And so that's one of
the things that we focused on is our potential solution,
UM is to ensure that people who were not present

(40:53):
in the state where the actor occurred are able to
mount a challenge to the extra shiit um. You know,
it creates all kinds of other problems because there's still
federal extradition and meaning like if you leave this the
country and come back in, like border patrol could potentially
get you. We still don't have a clear understanding of
how that necessarily would work, um, you know, and because

(41:17):
that's never been a question that's like fully resolved. So
you know, basically, you know, at the end of the day,
like we want to make sure that like folks are
aware of that, but like the folks that like leave Texas, right, So,
like if you've committ an abortion, you were charged in
Texas and you go to New York, like New York
is not going to have very many options to protect
you from being extradited back to Texas. Um. And so

(41:39):
you know, one of the things that you know, I
fundamentally believe Kentucky be Dennison was wrong was wrongly decided
on the sense that state shouldn't be able to have
a concern around human rights because it essentially acts as
a one way ratchet where the states with the most
regressive anti human rights criminal justice laws get to have,

(42:00):
like get to dictate that over all of the other states,
similar to how UM slavery, like the southern states were
trying to enforce the institutional slavery on northern states that
had that had abolished slavery decades ago. So it's a
very complicated issue. And again I reached back to that
slavery analysis because not because I think that, you know,

(42:23):
the slavery and abortions should be compared directly, but because
like this is funaventually the last time where you have
criminal laws that are so different between states, Like one
state's human right is another state's capital crime. Like if
you can't get further apart than that. Yeah, And I
wanted to just clarify for folks, if I drove the

(42:48):
pill to Texas, then I would have committed the crime
in Texas and New York could extradite me. Um and
I what I also think I'm sort of here is
the what happens on the ground right, So if you
to be clear, while as Alejanda correctly points, if I
just mailed it to Texas and they have the warrant
while we're sorting out this extradition warrant, I am very

(43:11):
likely incarcerated, and the sorting out of the extradition warrant
will probably take ninety days. So just because I think
folks get confused with this a lot, just because something
is illegal doesn't mean or your lawyers arguing it's illegal
doesn't mean it just magically stops um or the process ends.
And so this is something where we think that, um,

(43:36):
really there should be a basis to contest your extradition
on a human rights ground on two grounds. Either there
is no dual criminality, that is, this is not actually
a crime, and the other state interestingly, here, handing someone
a prescription pill in New York is actually a felony,
whether or not you get money for it. Most folks
don't know that he's smiling because she also has a

(43:58):
public defender in New York City. Um, because it blows
your mind. You're like, wait, they just handed it to them.
There's no money exchange. Yeah, that's a felony drug sale.
So we might have dual criminality. New York might actually say, um,
you did do a crime, so I will extradite you.
Which is why we think there also needs to be
a human rights defense. And this may also extend to, well,

(44:19):
we're not going to extradite them to Texas because they
have the death penalty and we think that is a
clear contravention of human rights. Maybe we can extend it
to prison conditions. I don't know how that far that goes. Again,
these are things I don't know they'd be likely to
be codified. But if we're actually dreaming up the world
that we think where this could work, like I, as
your attorney, should be able to come in and say
there's no dual criminality, this isn't contravention of human rights.

(44:41):
And once I mount that defense, then the court is
bound to release you while we sort that out. Um.
And and that is sort of our vision. Another thing
that that Alejandro mentioned the ver the Vermont law um
in the eight hundreds, and one of the things that
it's said was you could get a jury of your

(45:02):
peers in a situation like this. There's no jury in
an extradition case. But the idea, of course is that
a jury is going to say this is morally wrong.
I don't care what the law says. We're not sending
this person back to enslavement. And the idea here is
if you put a jury in and you assert of
human rights defense, perhaps the jury will say, no, we're

(45:22):
not sending you. So these are these are a lot
of ideas that we've been coming up with. So we're
doing the plan. There was jury nullification, yes, and it
absolutely was. That absolutely was jury nullification. Love love love
love love love jury nullification. Anybody with the law review
that's listening to this, let me write about jury nullification

(45:45):
for you. And I feel like, but but we we we.
I feel like I have been wanting to explain jury
unification on this show literally sensive, Like I asked if
I could do an episode on it the first week,
coming back for the next one. So there's something that
I don't want to be lost. And that's the idea
of like people don't necessarily know what they're being charged

(46:08):
with in the state that's asking for them to go
back because there's not really a requirement that that so
for an extradition, like thinking through what you actually need,
like the bare bones of an extradition. It needs to
be like a piece of paper that's signed by the governor,
but not necessarily the governor of the state, but somebody
with authority to ask for you to return back. And

(46:31):
that's in essence it, right, just like a piece of
paper signed by somebody that says x y Z birthdate,
x y Z did a crime in our state? Give
them back to us. Right, they don't have to say
what crime? Not really a requirement. It usually says it,
but it doesn't. It doesn't require a probable cause affid David,

(46:52):
which I think is really the more important part. It
doesn't require you to prove that there is enough to
charge them with a crime in the sin Ding state. Right,
So we're saying that's a bare minimum change that we
can make two laws to make the state that's asking
for you to use your resources to put somebody in
a cage and then put them in a traveling cage

(47:13):
to bring them to our cages. Um. And I keep
saying the word cage because I don't want us to
move away from what like prisons and jails actually are.
It's like bars and cages and boxes, right, So it
doesn't really harm the system, doesn't really teary all apart
to say, and here's what they're being charged within the

(47:34):
reason why, because that would be the bare minimum for
someone to be charged for a crime in New York.
You would need to have probable cause for the arrest.
And then a judge that's sitting on the bench gets
to say, Yep, there's enough probable cause for this person
to be charged next court date, you know. And but
we don't have that with extradition. We just trust that
the wheels of bureaucracy are turning the way that they

(47:56):
need to. Holy crap, that can harm so many people.
So we're just saying, hey, make them write it down.
So maybe a judge that's sitting in Illinois can look
at this warrant from Missouri that says we want X
y Z back here because of a self managed abortion,
and then they can see whether or not Illinois's new
fancy extradition law, which they haven't written up and I'm

(48:17):
sure they will, applies, right. I think that's a bare
minimum that we can do. And as much as I
crave shaking systems and searing them apart, I don't think
that's going to be a thing that does it. But
it might you know, have y'all ever played Mario Kart,
You know, when you're driving and you're able to throw
like the turtle shell or the banana, that might be

(48:37):
the banana that might slow down the process of somebody
kind of getting dragged along on this course. Well, and
I think I think there's like there's another thing that
that would do too, which is that that vice time
for community response, because like you know, if if we
go back to sort off the ice stuff, it was like, well, yeah, okay,
like ice raids weren't stopped by the sanctuary laws. The

(48:58):
thing that like did slow them down was massive community response. Yeah,
I think I think that's very Uh, it's certainly I've
seen that happen here, Like in San Diego. It wasn't
any of our performative Democrats laws. It was people getting
out into the street. Now I was gonna say, there's
It's also like in the UK in the last couple
of months, there's been a lot of really really impressive

(49:20):
community defense things and like cops showing up and like
just entire communities and neighborhoods showing up with the cops
just like running away. And it's been it's been incredible
to watch, and you two can also do this. But
performative democrats keep giving us good laws like give us something,

(49:41):
give anything, like a nub of a thing that folks
can hang their hats on. Um. I just don't want
any politician out there to think that they're absolved from
the job of protecting people. Yeah, well, and I think
I think again to think with these laws, right, it's
like you you actually like with this extraditions stuff, Like

(50:01):
I don't know how, Like I don't I don't know
how you would even like try to stop it unless
like because like you don't know, like I mean, I like,
unless unless're gonna commit to try to stop trying to
stop every person who gets arrested, which I think is
like a noble goal. But like there's no, we don't
have a capacity for that. Like if we lived in

(50:21):
a world where we could do that, like the world
will be much better and the state would be running
for its life. But yeah, it's like like it seems
like a thing that like it gives like it gives
time for the law to act. More importantly, it's like
it gives time for us to act. And that seems

(50:42):
absolutely one of the most important thing is that it's
buying time for people to organize and people to be
able to push back, and also creates a lot of
higher barrier right Like at the end of the day,
like these systems are still made up people, and people
are incredibly lazy and oftentimes like the police and other
folks like don't want to have to deal with like
engage and going with like an extradition request because of

(51:02):
the actual process for dealing with that is actually very onerous, like, um,
they have physically go to the state to pick them up,
and they have to like do all these things, right,
And so what we're doing is like we're suggesting make
it even harder, like make it absolutely hard for them
to go through this and actually have to litigate in
courts and like bring all this stuff, um and just
basically like so down the process and raise that kind

(51:23):
of buried entry on it. But you know, I thinks,
like I think that's you know, very um important to say.
Is like, you know, the commune defense aspect cannot be
overstated because at the end of the day, like laws
are just words on paper, right, Like it's it's the
people that give them the effect and the power. So
really what we need is like people say, like this
is morally wrong, right, Like we're not going to prosecute

(51:45):
people for for exercising their bodily autonomy, engaging in a
fundamental human right. And so you know when one of
the things I have been heartened by is you know,
um like um for John Brown gun Club and Dallas
like what they've been doing, like protecting houseless folks like
under the overpasses, Like they show up and like you know,
in Texas they can open carry, and like the police

(52:06):
don't want to deal with them. So they're like buying
a few more days so that the Dallas police doesn't
um come in and sweep you know, the only belongings
that these people have. And like that in and of
itself brought so much attention that like brought so much
scrutiny to Dallas p D's actions. So like is that
kind of community defense? And I think it also harks

(52:26):
back to how these extraditions issues like prior to like
the Civil War worked out. It wasn't necessarily like these
formal systems in Vermont that like stopped you know, escaped
as like persons from being returned back to the South.
It was like entire mods of people coming and like
being like, you're not taking this person out of our town,

(52:48):
and if you try to, you're not gonna leave here.
Like as a whole person, I guess it's probably the
best way to put that, um shoot your local bounty hunters. Yeah,
and so like essentially like that that's how it worked, right,
And like you know, at the end of the day,
I feel like, you know, I don't want to do
some kind of violence, but like it like what really
what it means is like when people show up and
they physically put themselves in the way, it makes it

(53:11):
so much harder for the like this kind of wheel
of injustice to continue. And so that's really what it's
going to take. I'm like you were mentioning with like
the with the ice raids and everything like that, Like
it took people sometimes physically putting their bodies in front
of ice fans to stop them from driving away and
like chaining themselves to stuff, and like that's the kind
of like non violent like direct action that I think

(53:34):
is like gonna be like needed. Yeah, And I think
folks seem to have figured out that their district attorneys
are elected and the person bringing the fugitive case, which
I don't think I've been crystal clear about is the
district attorney. So then the police officer is going to
go to the district attorney's office, and that is the
person who's going to bring the court case to help

(53:55):
facilitate sending the person um. And I know in New
York intently it has seen a number of successes of
folks organizing around individual People would be saying, you need
to drop these charges. This conviction got overturned, you should
not be continuing with the case. This person is a
for whatever reason, folks are organizing around, right, And so

(54:16):
if we can create some delays whereby the person is free, right,
because this is the key thing. We don't want people incarcerated.
Incarceration in of itself is extreme violence. Right, So if
the person is not incarcerated, then we can sort of
delay this process and organize around, pressuring whoever needs to

(54:38):
be pressured, particularly the two Democratic politicians who say there
against all of this stuff. But then at the end
of the day, are they going to ignore the homicide
extradition warrant? Like that's where the rubber meets the rule.
Are you going to do it or not? Right, and
and and I think that's a much harder question when
it comes down to that for them, because they're like, well,

(54:58):
it's a homicide warrant, right, and so that's where they
need the pressure, because um, all the wild ideas go
out the door in that moment. Yeah, I think, like,
I think that's the thing with with these people. It's
like ideologically like they don't care enough to do it,
do it? But if you but you can force them
to care about having a Yeah, well it's not not

(55:18):
even just so much that like there there are long
established ways of putting pressure on people and systems that
can force them to do things they don't want to do.
And yeah, go do that because we're going to need it. Frankly,
I think part of this is also destigmatizing work, right, um,
because when we have kind of these big divergent ideas,

(55:42):
when we find ourselves at the split of like good
versus evil, right, like slavery versus not slavery, bodily autonomy
versus not bodily autonomy. Um, sometimes the good guys compromise
to the point that we get ourselves to this position
later on down the line, and what we can do

(56:03):
is kind of galvanized community response and also civic engagement
by forcing folks to take a look at the laws
that we so rely on and questioning why does this
thing exist this way? Why is this process moving that way?
Someone that didn't know that. Folks facing an extradition warrant
like often have to make the decision at an arrayment.
Am I going to waive my right to extradition and

(56:25):
wait for them to come get me because they said
that takes thirty days for them to come and get you.
But if you don't wait, if it's going to take
ninety days to them to come and get you, so
you'll be sitting there longer. And that's a decision that
you need to make. Kind of like in that moment,
if we're talking about extradition in normal conversation, we're moving

(56:45):
forward to a place where we're destigmatizing and frankly demystifying
what the criminal legal system really looks like. In the
nuts and bolts. It might end up with better conversations
and better output for folks in the future. It might
end up with you being able to talk about jury
and allification and having like and not having it be
kind of like a shaking the table conversation, because frankly,

(57:06):
these are all like civics. Civics, it's rights, it's things
that are written in the constitution that governs us, where
the cops don't need to know the law, but we're
all expected to write. So it takes all kinds, it
takes all responses for us to just get to the
place that's better than the stop gap that Row had
been giving us for the last forties some odd years.

(57:28):
And I'll say, like, the one thing that does terrify
me in this end is like, or I guess like
really concerns me is like what Ronda Santis just did
in Florida in Hillsboro County. Like I grew up in
Hillsboro County, so I'm from there. So it's like, like
the twice elected UH state attorney there was just suspended
because he said he would refuse to um prosecute crimes

(57:49):
related to abortion and gender firm me carry like also
refused to prosecute trans people using the bathroom. Right, So
like these kinds of things, and the Santis just like
sacked him, Right, an elected person that reflects the values
of that county, and so like that, That's the other
thing to be aware of. It's you know, like even
when you do exercise that power and like say like

(58:10):
this is our as a community, these are our values
on like who we should be prioritizing. Um, in the
criminal justice system. There are still people out there that
will will try to circumvent that in a very authoritarian
and autocratic way and so um, you know, I think
it's not just who you're voting for your local d A.
Who are you running for? A governor? Who are you
running for? Like you know, these people that have broader

(58:33):
powers over this. I wanted to briefly talk about this
because I know like it was proposed at least by
my representative the and I think it's being bandied about

(58:53):
as a solution, and uh, it doesn't seem like it is.
But this My Body, My Data Act, which I was
trying to read through it a little earlier. It seems
like it allows people to like sue tech companies for
selling their data that leads to their prosecution. I don't know,
if you're familiar with it, that maybe we could just

(59:14):
discuss a little bit what No, Okay, all right, I
mean so I'm not familiar, but based on what you
just said, right, I think there's this and I really
think it goes back to what EVCO is saying about
folks just like not not fully understanding precisely how the
criminal legal system just like runs over people. Okay, great,

(59:37):
so I can sue the tech company after the police
have put me in a cage and and convicted me
based on the day like like, Okay, I mean great,
maybe I'll have a lot of money on my commissary,
my family will have enough um like funds to come
drive and visit me at whatever state prison they've got
me locked up in, right, like like, this is where

(59:59):
we have to step back and think, is this is
this thing actually preventing the harm? Because I think a
lot of times folks are just like we can do them,
or we could get back at them. And I also
want folks to remember that just making something illegal does
not prevent harm, right, and and a whole another conversation

(01:00:20):
about criminalization as a solution to anything, which I think
it is not um but but just on on the
face of what you've said to me, that doesn't sound
like a solution that if I it wouldn't feel adequate
to me if if I were in that And also
thinking about how cases become cases. From what we know,

(01:00:40):
it's not again, it's not coming from big data down right.
For the most part. It certainly can happen, but really
what's happening is violations of people's Fourth Amendment rights. Cops
being able to access things on people's actual devices, oftentimes
without warrants, oftentimes by not fully explaining that people have

(01:01:01):
the right to say no. Um. And I'm sure Michelle
has had clients that were like, oh, they just took
my phone. How many times have we heard that? Right,
they just took my phone and started going through it.
A police officer that does that is not going to
write in their report. And I just took his phone
without any permission. It's always permission was granted. It was
in plane view. I saw it from the street. I

(01:01:23):
smelled it as he was walking by. Like, if the
laws that are being created are not actually responsive to
the harm that folks are experiencing in a way that
actually prevents it, then we need to kind of push
back at our legislators and say, Okay, this is great,
but is it responding to the thing that you're saying

(01:01:44):
it's responding to, because yeah, shout out to people being
able to sue big Tech for selling our data without
our permission? Bet, But is that gonna prevent prosecutors from
going after folks that have abortions? Probably not, Because even
in the Nebraska case that Alejandra mentioned at the top
of the hour, that was a warrant that was signed

(01:02:04):
by judge. It was a search warrant that was provided
to Facebook that didn't say the words abortion on it,
that didn't say that we're going after someone for abortion,
had I think the words like abuse of a corpse
or something of that nature on there, And for them
it was wrote what they normally do, bureaucracy search warrants,
stamp here's the data that you're looking for. A law

(01:02:24):
that prevents folks from selling your data doesn't prevent that
from happening. Something I think a lot about those. One
of my sort of like former political experiences was back
in like, I think this is something which isn't twelve
doesn't thirteen um, right after the revolution in Bahrain. So okay,
So the revolution in Bahrain, Saudi tanks roll in, they
crush it, they kill a bunch of people, and the

(01:02:46):
government starts doing this crackdown the way the government does
to crackdown is they go they go to Facebook and
they take stuff those on people's public accounts, and then
they go to Facebook and they asked them for information
and Facebook turns it over, and you know, the government
just goes to and finds everyone who's at a protest
and starts arresting them. And you know, Facebook was just
like m hm, and like that if if if if

(01:03:09):
if if if they if they will comply with a
literal monarchy who has had a second monarchy send an
army across the border in order to crush a bunch
of protests, Like they're going to comply with the US
and they're gonna keep doing this stuff to you. And
so yeah, I was like, I like, even if you
can sue them, they're still going to cooperate with the U. S.

(01:03:30):
Government because yeah, they have a great financial interest in
doing big tech doesn't give a funk about you. Yeah,
I think folks, again, as he was saying, like Eca saying,
it was just so like this is wrote, this is
what they do every day. This is not that serious
or that deep to them. And I think we need
to start asking bigger questions about why do we have

(01:03:51):
a system where so easy for the government to just
like come in and um, have a subpoena signed, like
the subpoenas are easy to get, like we have. These
mechanisms are all in place. And that's what I was
sort of saying earlier is that I think folks who
haven't been paying attention to this, who are all of
a sudden like, wow, how is this happening? Oh my goodness, Well,

(01:04:13):
these are the machines of massive coarceration that we have
spent a few decades really building up. And so now
when the person the people you're sympathetic with start to
get criminalized all of a sudden, we're very shocked. And listen, however,
you got here, great welcome. I'm glad folks are here
and saying like, wow, this is a problem. And I

(01:04:34):
want folks to think the If the abortion context and
the self managed abortion is your entry point, I hope
it is not the end point. I hope that you
are thinking bigger about how did all these systems get here?
Who do they serve? And and and I hope how

(01:04:55):
do we dismantle them? Because it's it's not just this
select few people group of people that we should care about.
I think is all the people who are who are
exposed to this on the daily. Um. So yeah, that's
my soapbox. I always wonder how many judges, um have
refused to sign a search warrant. That's like a big
wonder of mine. I don't judges don't hang out with me,

(01:05:19):
obviously for a lot of obvious reasons. But if I
were to like just whisper in my ear real quick,
how many times have you ever said no to a
police officer that comes to ask to swear a warrant
in front of you? How many times have you found
there is no probable cause? Dude? Like to to be fair,
there there there are, there have there There have to

(01:05:41):
be a certain number of times where they're trying to
go after another judge. Judges, I don't know, and it's
good to have happened once like that. There has to
have been one time where it was like this judge
piste me off, I'm going to go rd his car
or something. Never never that I can probably like that,

(01:06:02):
I can think about never happening. But I just wonder
how many times has somebody said we are going to
go search for drugs and X y Z house in
this specific neighborhood that that a judges says, huh, you
don't have enough here, try again, it doesn't happen. Yeah,
at least told in federal court maybe maybe you know,

(01:06:22):
they turned down one out of but in state court,
my experience is it's it's it's again, it's routine. It's
just how things go. I mean. One of the one
of the things that I came across when I was
you know, and I just not dealing with particularly judges
issuing warrants, but one of the things I did when
when I was looking into the payment Apple issue this
past uh spring, um, is you know, I talked to

(01:06:44):
a former prosecutor and was like, you know, what is
it like to get documents from or or data from
like Facebook and you know, Instagram or Meta whatnot, or
like Twitter or any of these other places. And they
were just like, oh, we just sent a requests like
we don't even like it's basically an administrative subpoena, and
they just like hand over everything like, um, it's basically

(01:07:06):
they're just like so routine. Oftentimes, especially if it's coming
from a district attorney's office or law enforcement like often
times these companies just like casually handover stuff all the time,
especially when it's like dealing with low level drug stuff
um or any kind of like issues like that. You know,
they like to say, oh, we're we're big on on

(01:07:28):
civil rights and stuff like that and making sure your
data is protected. In reality, like there's so many requests
around this stuff, and it's just, you know, the only
time they ever maybe make a standard when a case
is higher profile and that may damage their brands, right,
and that's that's the only time they actually ever care.
On the defense attorney side, it's hard as heck to
get your client's records for things like so hard, so

(01:07:51):
so hard. You're looking for information on a Facebook for
somebody that's incarcerated that might get them out of jail,
and they don't remember their password, you don't know how
to get into their stuff, and it needs to be
not a screenshot because that you might not be able
to get that authenticated and admissible in court. And it
is so hard when you're working on the other side
and not in law enforcement to get data and information.

(01:08:14):
But on the flip side, when it comes to like
people's medical information, which comes into play in a lot
of these cases, because we're at this intersection of bodily
autonomy and health in the criminal legal system. We've certainly
seen in cases where folks are having a medical emergency
and cops are able to just go and do a
bedside interview with somebody that's coming out of surgery still

(01:08:35):
drugged up. Right, They're able to just go up to
a charge and or something like so, how's he doing,
and they're getting information. That's wild because I have had
request for my clients medical records with signed HIPPA authorizations
returned because I signed with blue ink instead of black ink.
It's not wrote. It's not wrote when it's not coming

(01:08:58):
from law enforcements sometimes, and that's kind of the wild thing.
There's this assumption that folks and law enforcement have a
right to all information at all times forever, and that's
where things get rubber stamped, and that's the stuff that
we're not really looking at that have large impact on
how people access their rights. I was just as we

(01:09:19):
were talking about like Facebook doing everything about you and
loving the cops, I was like reminded of Foko's Panopticon
and like this idea that you'll start to internal life
discipline because you never know when you're being watched, right, um,
And so I wondered, like if obviously, like when UGO
talks about it, the idea is that you will do
you act like you think the state is watching because

(01:09:41):
the state could always be watching. Therefore you have to
act like it is watching. Uh, and like it's if
we're not there yet, right like that there have you
not heard the FBI and your phone joke? The FBI
on my computer? Like, I hope he likes my makeup today.
We're totally there, Like I think there's an assumption that
we're all you can watched. Well, I don't know. Even

(01:10:02):
sometimes I wish our clients I thought they were watched
more because sometimes people put too much on Facebook do well, yeah,
you're right, let me not keep myself from that because
I am very much included. Yeah. But yeah, so like
that's what I wanted to ask, right, Like how do
we not I you know, we don't want people to

(01:10:24):
listen to some do crimes, but like how should people
act in their interactions like in in a way that
is like I guess I don't know that it makes
them less vulnerable to like these very obvious upsets fails.
I guess, Um, I have some resources, so if one

(01:10:45):
how we have this thing called the repro Legal Helpline.
It's repro legal Helpline dot org. It's also a warm
line with the phone number that people can call and
ask questions like what are my rights when it comes
to my abortion my self managed abortion? And on that
way site, we have digital tips about how do you
protect yourself and sanitize your digital space just for safety

(01:11:06):
as a whole, not to hide information from everyone, but
how do you move and prevent and minimize your risks?
What does harm reduction look like to you? We also
have the repro Legal Defense Fund and that exists for
folks when they are actually being criminalized to pay for
things like bail, help out with attorneys fees, help out
with expert fees. So there are folks that are working

(01:11:28):
on this stuff that exists as resources, and there are
resources out there. But I would tell folks to really
think about who are you telling your business to UM
when you share information, is that information that's necessary for
treatment that you're being asked? UM? Just because we're used
to being in spaces where there is a power and
balance about sharing all of the information that's asked of us,

(01:11:51):
and I think when it comes to spaces and times
where we're more vulnerable, um to state actors causing harm
to us, being mindful about what questions are you being
asked and is that question necessary for you to be
able to receive care or services x y z um.
And it sucks to have to put work on the
back of folks that are already being oppressed by systems.

(01:12:12):
It's absolute trash. And I fully recognize it's it's it's
messed up. But um, when we're thinking, when we're thinking
about what does harm reduction look like, I think that's
one of those things that we have to keep in mind. Um.
And harm reduction also looks like folks knowing generally what
the law is and being able to advocate for themselves
in those spaces. Yeah, I'll just add from my side

(01:12:35):
from like kind of just you know, from from a
cyber perspective, it's, you know, just in general ways like
there's nothing that's gonna be bullet proof or a silver
bullet in terms of always protecting your privacy, but like
the quicker ways that you can kind of at least
make yourself generally safers. Use applex signal for for chatting.
UM also use like auto delete features. UM you know,

(01:12:57):
don't don't keep like years worth of text messages and
stuff like that. UM. Additionally, UM, you know, don't use
biometrics because you don't have a Fifth Amendment right for
yourself subcrimination for for biometrics right sos so long long.
The reason why that is in the courts. Use a password,

(01:13:18):
don't use a short pin. Use a password. I know
it's annoying. I know it's like, you know, if a
fingerprin in our face, like unlock is like much more convenient.
But you know, if you are at high risk or
you worry about this stuff and you're concerned about your privacy,
like use those things because they can't compel you to
do that generally. UM. You know. The other things is
UM the UK app e u k I UM, which

(01:13:41):
is a UM sexual health app that has a lot
of information about UM, you know, reproductive issues. UM. It
also is like a menstrual chracker, but it's all encrypted
client side, they get no data UM and it has
it prompts you for a password and pin to open
it UM. And it also has UH resources for self

(01:14:04):
managed abortion UM and and how to safely handle those, um,
And yeah, you know, just generally, you know, anything you
put out there on social media also like be careful
like what you you put out there, like stay to
end and end to end encryption, use VPNs if you can.
You know that these are just kind of like general
stuff like nothing is again ever gonna be full proof.

(01:14:26):
But yeah, there are some small stuff you can take
to at least increase some of your protections. And on
my end, you know you have a right to remain silent,
you should use it. Uh And thanks to the Supreme Court,
you have to say I want to be silent. In
order to invoke your right to be silent, you cannot
just be silent. Um. So you I would advise people

(01:14:49):
to say I want to be silent and I want
a lawyer. Those are the magic words. I also want
to hold that being can up shored by police officers
is a violent experience and a scary experience, and sometimes
asserting your rights can provoke more violence, and so people

(01:15:09):
do what they need to do to stay safe in
that moment um from all the law perspective, saying I
would I want to be silent and I want a lawyer,
um are the things that invoke all of your constitutional protections. Um,
and the police may lie about whether or not you

(01:15:30):
said that later, so you know, say it as many
times as you need to. But those are really the
only things you should say, which is a lot um
easier said than done, but that that is the thing
that folks should do if they do find themselves in
the custody of law enforcement. And also if you're on
the street, ask if you're free to go, and if
you're free to go, please walk, do not run away.

(01:15:53):
There's also a case about that God hate the cops. Well,
thank you also much for joining us, UM this this
has been really great, and yeah, don't talk to cops yep.
Would you like to plug anything before we leave with
the cook the cops? Yeah, I can just throw my

(01:16:15):
personal side. You can follow me on also shows on
Twitter and stuff at Square underscores like Portmanteau of Esquire
and Queer s E s q U E R Underscore
UM and also have a podcast called Queering the Law
um or talk about a lot of these issues as well. UM,
So if you want to give that a listen. UM,

(01:16:38):
don't follow me on social media because all my stuff
is closed, but I would recommend that folks follow at
IF when how on all socials because we're always uh
providing up to date information on what's actually going on
with criminalization of self managed abortion and resources from you know,
community partners that are on the ground, local that are

(01:17:00):
doing the work. So if folks are looking to get connected,
I would say reach out to IF one how and
we can usually point you in the right direction. You
could follow me on Twitter, but I don't really remember
what my handle is. So what I would suggest that
you do, uh pre trials, attention and bail litigation is
really my heart. You got folks locked up and they
haven't even been found guilty, not that anyone should be

(01:17:23):
locked up, So donate to your local bail fund if
you don't know who that is. There's a lot of organs,
National Bailout, the Bail Project, there's a lot of places
you can find that. But growing five, ten, fifteen dollars
at your local bail fund, we'll get someone free because
you can purchase your freedom here in America. So UM
do that. M Yeah, thank you so much that this

(01:17:50):
has been They can happen here. Uh, you can find
us in places don't talk to cops and yeah, if
there weren't any cops. You couldn't make things legal. It
could happen here as a production of cool Zone Media
or more podcasts from cool Zone Media. Visit our website
cool zone media dot com, or check us out on

(01:18:11):
the I Heart Radio app, Apple Podcasts, or wherever you
listen to podcasts. You can find sources for It could
Happen Here, updated monthly at cool zone media dot com
slash sources. Thanks for listening.

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