Category Archives: miscellaneous

Yeah, ok Mr. President, whatever you say…

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The administration’s argument for how violating our Fourth Amendment rights is “legal” under the Patriot Act.    – Yeah, ok.  Whatever, Mr. president.  Obama, Bush, all the same when it comes to this crap.  Can I have the money I gave you last year back??

Quick read on today’s decisions

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#DOMA is struck down on grounds of “equal liberty” under the 5th Amendment.    Kennedy makes reference to his decision in Lawrence v Texas.      Defense of Marriage Act is unconstitutional, and federal laws can not deny coverage to same sex couples.

#PROP8 case is a different beast.  Proposition 8 was struck down by the US District Court.  The appeal that followed – in which the state of California refused to participate – was affirmed by the Ninth Circuit.    That decision was vacated – or wiped out – by the US Supreme Court, which instructed the Ninth Circuit to dismiss the appeal for lack of jurisdiction.  As a result, the original decision in the District Court stands, and Proposition 8 is no more.  

But  that decision does not have any precedential impact.  It does not invalidate ANY other bans on gay marriage, as the US Supreme Court has not acted on the issue.    The important case today was DOMA – and the rationale that Kennedy made.  That could be the grounds for a future case, where there actually is standing.  

More later… 

Enough with the Snowden Stories. HE is NOT the story — the story is the coverup!

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Folks, I have been really getting tired of all the attention on Edward Snowden.   He is the NSA whistleblower, and no I don’t think he should be charged with espionage – he did not give state secrets away to foreign nations.  He exposed what he saw a a moral failing of the U.S. Government at the highest level.     

But Edward Snowden is not the story.  To me, he is a privacy hero.  Tthe STORY is the secret program of surveillance of millions of Americans that he uncovered.   We need to keep our eyes on the prize – and not let Mr. Snowden drown out what he took such great risk to uncover.   Wide-scale surveillance of American citizens with no probable cause upon which to base a warrant – and no warrant from a legitimate court.     

From Loving to Marriage Equality… the March Continues

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46 years ago today the Supreme Court handed down Loving v. Virginia, striking down miscegenation laws, which banned inter-racial marriage.   While the decision was decided (properly) on 14th Amendment Equal Protection grounds, in many ways, it can be thought of as being tied to the elements of privacy which encompass personhood, and the ability to make ones most fundamental choices.   The choice of who one can marry is before the Court again, and we anxiously await the decisions in the two “marriage equality” cases, one challenging the Federal Defense of Marriage Act, the other challenging California’s Proposition 8, which banned gay marriage.  

Hopefully, the Court will learn from the lessons of its past, and see that the same equal protection claims that justified striking down bans on inter-racial marriage should apply to the question of gay marriage.   Sometime in the next three weeks, we will know whether the Court will be on the right side of history, or whether it will become the Dred Scott of the 21st Century, sparking a catalyst for change, while it gets left by the wayside.   


Privacy and Security is not a zero-sum game. We can have both.

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“If you don’t let the government search these things, you let the terrorists win.    If you place privacy above security, we are all put at grave risk.”    This is a common thread justifying government surveillance of phone records, internet activities, and the such.     In the months after 9/11, the American people seemed to buy into this argument.  We gave government vast powers (well actually, a Congress that did not even read the Patriot Act did), with the reassurance of “don’t worry, once things calm down, and normalize, we’‘ll restore the proper balance of civil liberties.”  This simply is not true.   When governmental power is increased, it rarely if ever surrenders it.    There is nothing profound about such a statement, it is really politics 101.  Power expands in a vacuum, and it has a tendency to corrupt.

Thus we are told that privacy and security is a zero-sum game.  You can not have one without hurting the other.  This is not true either.     The genius of the Constitution is that the rights bestowed on us in the Bill of Rights (really, a listing of those things government can not do) are not absolute.    The Fourth Amendment does not prohibit all searches and seizures,  it prohibits unreasonable searches and seizures lacking probable cause and a warrant.   Surveillance is allowed – after there is judicial oversight and regulation.   It is not a zero-sum game.   If government has a legitimate reason to track someone, and can demonstrate the reasons for doing so, with proper oversight, it would be acceptable.   

The revelations of the past week suggest that this system is broken.  Yes, there is a Foreign Intelligence Surveillance Act which is supposed to provide oversight through a “secret” court.  Yet, when government can simply say “give us access to all phone records for all of your customers” this isn’t oversight.  It is what the New York Times aptly called a “dragnet.”   Proper judicial oversight requires probable cause and individualized suspicion.    There is none of that in the phone monitoring searches.   Plus, were it not for a “leak” (thankfully the Obama administration seems to have a problem with such things) we would not KNOW it was going on. 

It is clear that the FISA Court is more akin to a grand jury than an actual court.  In a grand jury, only the prosecution gets to present evidence.   The “target” has no representation, does not even know the proceedings are going on. The evidence is all one-sided, and thus, prosecutors rarely fail to obtain indictments from jurors who only receive one side of the story.    FISA operates under the cloak of “national security.”   When it allows the government to track all phone calls of a major carrier with no specific individualized suspicion, it is one sided.   It is not a court at all.

On the contrary, in a normal court, when an application for a search warrant is presented, the police must demonstrate probable cause – based on articulable facts and inferences from those facts, which when taken in the totality of the circumstances, lead to a level of suspicion which merits authorizing a search.   Moreover, when police get a search warrant to search a home, they show up at the home, and they have to produce the warrant.  It is proper judicial oversight and regulation.   Under FISA, the court order is “top secret,” the government surveillance is done with no knowledge of those whose information is being searched.   That is not oversight.  It is an abuse of power.  It is government violating the very document – the Constitution – it is sworn to uphold.      

We are told to “trust us” – we won’t do anything to hurt you.    Yet, the very fact that government is tracking our phone calls, the very fact that they are scanning our internet activities, and maybe even the files we store on computers is a harm.    The president tells us “don’t worry, we can be trusted.”    As the New York Times (6/6/13, op-ed) states:  “Within hours of the disclosure that federal authorities routinely collect data on phone calls Americans make, regardless of whether they have any bearing on a counterterrorism investigation, the Obama administration issued the same platitude it has offered every time President Obama has been caught overreaching in the use of his powers: Terrorists are a real menace and you should just trust us to deal with them because we have internal mechanisms (that we are not going to tell you about) to make sure we do not violate your rights.”

The president’s argument is not persuasive.  it is an insult to the American people, and assumes that we should just trust them because they know what is best for us.   And as the Times points out, the Obama administration has lost all credibility on this issue.     The Administration (like the one before it, which equally shared blame for creating the system in the first place) takes advantage of the powers it has been given, and expands them.   It  never retreats.    And on its own, it will not retreat. The only way we will be able to reclaim our rights is if we demand them, and that will require insisting on real oversight; and not allowing Congress to hide behind the same arguments.  We can have privacy and security, but not following the path that has been laid out in the past decade.  The first step must be to repeal the Patriot Act. We need an OccupyNSA movement.  A grassroots effort to demand our rights. 

While Benjamin Franklin never actually said it the way the quote is attributed to him, the meaning remains true.   “He who would trade liberty for some temporary security, deserves neither liberty nor security.”   

Further reading:   President Obama’s Dragnet 

Daniel Solove, Nothing to Hide: The False Tradeoff between Privacy and Security, Yale University Press, 2013.  

Stop saying “I don’t care if you search my phone records, I have nothing to hide.”

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I don’t know how many times this week I have heard the old standby,  ”Well who cares if they look at your phone calls?  I don’t have anything to hide.”    In the next several posts I want to explore some of this.  I am drawing liberally (not conservatively!) from Daniel Solove’s wonderful book, “Nothing to Hide: The False Tradeoff between Privacy and Security.”  You should read the book.

The Nothing to Hide argument is said over and over again, but it is a falsehood.  It is a bogey-man, which completely minimizes the privacy interest, and distorts reality.   Lets take it to extremes.   If you have nothing to hide, then show me your credit card bills from last year?   You have nothing to hide? Then great, when can I photograph you naked?   (Now this really is an extreme example).  But you get the point.

The biggest problem with this argument is that it assumes privacy is about secrecy.  About hiding bad things. It isn’t.  I don’t think I have ever broken any laws (beyond the traffic code), I certainly haven’t murdered or assaulted anyone.   I haven’t stolen money, etc…  yet, I am a strong proponent of privacy.   Does this mean I must have something to hide? No.  I view privacy as a fundamental right to be left alone from unwanted (and unwarranted) governmental interference.    As Louis Brandeis stated in Olmstead, privacy is one of the most cherished of rights – the right to be left alone.       This is not to say I am free from all government interference in my life.  I pay my taxes even though I don’t want to;  I follow the criminal laws; I am social and am part of the community.

Yet privacy is not just an individual right – it is a societal value.   Solove suggests that “the value of protecting the individual is a social one. Society involves a great deal of friction, and we are constantly clashing with one another. Part of what makes a society a good place in which to live is the extent to which it allows people freedom from the intrusiveness of others. A society without privacy protection would be oppressive. When protecting individual rights, we as a society decide to hold back in order to receive the benefits of creating free zones for individuals to flourish…”  Privacy is not merely championing the individual against society’s interests “but the protection of the individual based on society’s own norms and values. Privacy isn’t simply a way to extricate individuals from social control; it is itself a form of social control that emerges from a society’s norms. It is not an external restraint on society but an internal dimension of society. Therefore, privacy has a social value. When the law protects the individual, it does so not just for the individual’s sake but for the sake of society.” (chapter 1).

I have many expectations of privacy,  I don’t think government should be looking at the websites I surf, they should not be reading my emails,  they should not be tracking my phone calls.  Why?  Not because I have something to hide.  But because these things are none of their damn business.  We have a society based on the rule of law. Government is of the people, by the people, for the people.  Its powers come from the Constitution, which place very specific limitations on what it can and can not do.   Government is supposed to follow the bill of rights, the Fourth Amendment of which, states the right to be free from unreasonable searches and seizures of your person, houses, papers, and effects, without a warrant based on probable cause.   It is based on what we call “individualized suspicion.”  If the government wants to search me, they need a warrant – they need probable cause before-hand.  

A dragnet of all of all phone calls – and of all internet activity  – not based on probable cause; it is just that, a dragnet.  Lets throw out as wide of a net as we can, and see what we catch.    THE CONSTITUTION DOES NOT PERMIT THIS.     

But wait, who cares if you have nothing to hide?  Let’s see.  For several years I did research on methamphetamine and crime.  I interviewed meth users, I followed trends about meth, compared how meth was manufactured in the midwest compared with the southwest.    If the government was watching my purchases on Amazon and my web surfing, if they were looking at the files in my Dropbox, they might think — We have  a meth cook here.   Alert the cops!  Yet, the result of such a search would be a distortion of their findings.   Personal information reveals a lot, but it can easily be taken out of context – and lead to the wrong conclusions.  

Or think about this if you claim you have nothing to hide.  Solove calls it the problem of aggregation – what happens when small bits of seemingly innocuous data are tied together.  Solove tells us, suppose you buy a book on cancer.  ”This purchase isn’t very revealing on its own, for it just indicates an interest in the disease. Suppose you bought a wig. The purchase of a wig, by itself, could be for a number of reasons. But combine these two pieces of information, and now the inference can be made that you have cancer and are undergoing chemotherapy.”

More to come… including WHY the national security excuse does not work.  

For further reading:  Daniel Solove,  Nothing to Hide: The False Tradeoff between Privacy and Security, Yale University Press, paper, 2013.  

I’m digging Justice Sotomayor. Voice of reason on SCOTUS

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Another Justice Sotomayor criminal procedure opinion out today, in a technical deportation case about whether possession of 1.3G of marijuana constitutes an aggravated felony and thus is deportable,  Once again, the good justice gets it right (not deportable).   She is proving herself to be the primary voice of reason on the Court in the area of criminal procedure.  And I am liking her more and more. She won me over last year with her concurrence in US v Jones, the GPS case.   

The opinion – not one I’d recommend for light reading – is Moncrieffe v Holder, available at 

The consequences of turning Bean-town into Baghdad

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For the last several days I have been bothered by what I saw transpire in Boston.   Initially my concern was focused on plans to use the “public safety exception” to avoid Mirandizing Tsarnaev once he was apprehended. But there was something deeper that I could not initially put into words.  It was a deep sense of discomfort at the image of police dressed like storm troopers going house to house, armed with machine guns doing sweeps of homes and neighborhoods to find the suspect who had eluded them.  These warrantless searches of the home cut to the very core of the Fourth Amendment’s protection.  The right to retreat into one’s home and be free from unreasonable governmental intrusion has always been accompanied by the constitutional requirement of a warrant based on probable cause. The home is our castle, it is the one place where our privacy rights are most cherished and exalted.  Yet apparently all it takes is to label a suspect as a terrorist and those protections get thrown away.

I am well aware that the people in Boston last week were traumatized, that there was real fear.   I am not trying to diminish that.   Yet, I can’t help but think that some of that fear was the direct result of the government’s response to the shoot-out Thursday night  and the imposition of a city wide “lock-down” (read: martial law?) on Friday.  The entire city was put on a lock-down to conduct a manhunt for a 19 year old suspect.  This wasn’t just a couple neighborhoods, it was the entire city.  People were told to stay in their homes; taxis, trains, and buses were shut-down.  It was followed by images (and videos) of police in armored vehicles with machine gun turrets on top,accompanied by officers in full battle gear (soldiers?) walking down the street with AR-15s in hand, entering into homes, dragging the owners outside with their hands above their head as if they were under arrest, conducting full searches without a warrant.  A student of mine who is a Vet pointed out to me that “this is exactly what we did to clear out cities in Iraq.” It was a textbook military operation.  Yet, this Op occurred on the streets of an American city.  It was a paramilitary operation in which a massive violation of civil liberties occurred, orchestrated by the Federal Government, the State of Massachusetts, and the City of Boston. And we accepted it without question.    

In what other place in the free world would an entire city be put in a lock-down to find one criminal?  Nowhere has this ever happened.  It did not happen in Atlanta in 1996, it did not happen in London in 2010.  It does not happen in Jerusalem or Tel Aviv.  And there is a reason it hasn’t happened, because by doing so – we are basically letting the terrorists win by feeding off of the fear from the original event.   You don’t need to hijack airplanes and crash them into skyscrapers — just put together a cheap “instructions-available-over-the-internet” explosive device, which you can purchase at your local Walmart — cause some mayhem (i.e., kill some people) and then shut down a city.   What is the economic cost of that?  Hundreds of millions of dollars?   What a lesson this provides to other scumbags with a pipe-bomb.

Most important, I think, is the way the government’s actions served to enhance the psychological terror that many residents of Boston were feeling. They were already vulnerable, they were scared.  It was real. But turning Bean-town into Baghdad multiplied that fear one-hundred fold.  It was not only unprecedented, it was completely unnecessary. There could have been a middle ground.  They could have requested people in parts of the city to stay off the streets.   They could have gone house to house, asked permission to search yards, they could have asked questions of residents at the front door, and if they received a suspicious response, perhaps proceeded to do a search, but the video clips I have seen look like they should have been in a war zone in the middle east, not in urban residential communities in the United States.  

And then what do we do at the end? What do we do when it is all over?   We cheer them.  We celebrate good police work catching the bad guy, while ignoring the means used to accomplish it.  It is good versus evil, and the ends are all that matter. A massive violation of constitutional rights occurs, and we are complacent.  Yes, they got the bad guy. But at what cost?   What precedent does this set for our civil rights and liberties.  I think we need to ask hard questions about what type of society we have, and why we are so willing to be complacent about our rights, and sacrifice them so easily. 

We also need to ask hard questions to the government about how and why they chose to act the way they did. And we should not allow it to happen again in the face of fear.   Writing about freedom of speech, Justice Louis Brandeis once said that “fear breeds repression; repression breeds hate” and “hate menaces stable government.”   We simply cannot accept last week’s events as the new normal.  We must not.  

Yes, I care that the Boston marathon suspect has not been mirandized

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“No person shall be compelled in any criminal case to be a witness against himself.”  Those are the words of the Fifth Amendment.  It says nothing about a “public safety” exception.  And what the government can do  to the most serious offenders, it can do to you or me too.  

Justice demands that the suspect be read his rights, and have access to counsel, from the beginning of custodial interrogation.   

As Emily Bazelon in Slate points out

[The] FBI will surely ask 19-year-old Tsarnaev anything it sees fit. Not just what law enforcement needs to know to prevent a terrorist threat and keep the public safe but anything else it deemed related to “valuable and timely intelligence.” Couldn’t that be just about anything about Tsarnaev’s life, or his family, given that his alleged accomplice was his older brother (killed in a shootout with police)? There won’t be a public uproar. Whatever the FBI learns will be secret: We won’t know how far the interrogation went. And besides, no one is crying over the rights of the young man who is accused of killing innocent people, helping his brother set off bombs that were loaded to maim, and terrorizing Boston Thursday night and Friday. But the next time you read about an abusive interrogation, or a wrongful conviction that resulted from a false confession, think about why we have Miranda in the first place. It’s to stop law enforcement authorities from committing abuses. Because when they can make their own rules, sometime, somewhere, they inevitably will.

Let’s repeat that last part.  WHY do we have Miranda?   It’s to stop law enforcement authorities from committing abuses. Because when they can make their own rules, sometime, somewhere, they inevitably will.


You know you are in trouble when..

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a Supreme Court opinion begins with..

SOTOMAYOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, in which SCALIA, KENNEDY, GINSBURG, and KAGAN, JJ., joined, and an opinion with respect to Parts II–C and III, in which SCALIA, GINSBURG, and KAGAN, JJ., joined. KENNEDY, J., filed an opinion concurring in part. ROBERTS, C.J., filed an opinion concurring in part and dissenting in part, in which BREYER and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion.


But in this instance, it really means Kennedy joined all of the opinion except two sections (II-C and III, in case you are wondering)  he thought un-necessary, and which did not add to the ruling.  

If you are curious, this is from Missouri v McNeely, the Court’s case this week that says the dissipation of alcohol from the bloodstream does not by itself create an “exigent circumstance” (or emergency) justifying a warrantless blood draw after a DUI.  But it might, if in the totality of the circumstances, the officer can demonstrate the need for the blood test.    Yet, the Court won’t specify what such circumstances might look like.  

Double sigh….  



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