Statutes, Judges, and DoJ

The Supreme Court last Tuesday heard a case between Microsoft and DoJ concerning whether the emails of an alleged drug dealer must be turned over to the government pursuant to a search warrant to that effect.  The catch is that the emails are stored exclusively on servers in Ireland—nominally beyond the reach of the US’ long arm of the law.

The statute in question is the Stored Communications Act, enacted 30 years ago before email and similar electronic communications were available.

Microsoft handed over some account data that was stored in the US but said it shouldn’t have to hand over the emails, which were stored on a server in Ireland.

The Second US Circuit Court of Appeals sided with Microsoft, ruling the 1986 law didn’t apply beyond US territory.

DoJ and the participating States’ Attorneys General argued that the appellate decision, if left intact, would hamper the government’s crime-fighting ability.  That’s likely accurate, but there are two things about that.  One is that the convenience of government is not an excuse for limiting individual liberties either directly or through the companies we own. Some of you have heard that from me before.

The other thing, though, is that extending the statute to reach beyond our borders is a political decision, not a legal one.  Only the political arms of our government—Congress and the President acting together (or with Congress overruling a veto)—can make that decision; only the political arms of our government can extend the Act or write a new one to fill the apparent gap.

There’s this bit of disingenuousity, too, from Solicitor General Noel Francisco:

Microsoft’s employees could prepare that disclosure without leaving their desks in the United States[.]

They could prepare such disclosures without leaving their desks in the US in 1986 when the Act was passed, too.  All they had to do was write letters to the managers of the overseas storage facilities.  Nothing has changed here except that email has replaced gofers and the mail room.  Nor has the status of the material stored overseas changed.

On the other hand, Microsoft and other massive tech companies also are raising red herrings.

Microsoft, Google, and other technology companies say…the case could threaten American dominance in the $250 billion cloud-computing industry, because foreign clients won’t use US firms if their data isn’t protected.

That also may be true, and it’s also not relevant.  That’s a question that’s strictly a business matter and not a legal one.  To the extent government help is useful in filling this business gap, it’s also a political question, and these businesses need to seek their recourse through those political arms of our government.

Finally, there already is an alternate route to getting the emails, as admitted by DoJ in their filings:

There is a diplomatic process, governed by legal assistance treaties, that allows the US to request that foreign law-enforcement counterparts share sought-after data, but it can be slow and ineffective, the department said.

There’s that convenience thing, again.

What does the text of the Act say? That’s what the Justices must apply, not a phantom Act that doesn’t exist but that does represent what Justices or DoJ officials might wish the Act to say.  Article I, Section 1, is quite clear about who gets to write the statutes in our system of government, and extending the reach of an existing statute is law-making that is beyond the reach of any member of the judiciary or of the DoJ.

Constitutions

The Communist Party of China has before it a Constitutional amendment that would abolish term limits for the Presidency of the People’s Republic of China.  The CPC is expected to ratify the amendment, along with a number of others that also will enhance the power and apparent prestige of the incumbent, Xi Jingping.

The CPC is expected to ratify….

It’s interesting that the Chinese people aren’t allowed a voice in the document the CPC uses to subjugate them. This is the contempt for ordinary citizens that the men of the government of the People’s Republic of China will inflict on all the nations over which the PRC gains control.

A Misunderstanding

Ex-Secretary of State Condoleezza Rice, in the emotional aftermath of the Parkland, FL, school shootings, thinks it’s time to discuss the 2nd Amendment.

She’s right, but for the wrong reasons.  She’s right because it’s always time for We the People to discuss our Constitution and every part of it, and not only in the 8th grade Civics classes we all slept through at the time.

She’s wrong, too.

I think it is time to have a conversation about what the right to bear arms means in the modern world.  I don’t understand why civilians need to have access to military weapons. We wouldn’t say you can go out and buy a tank.

Seemingly contradictorily, Rice also said this in response to a Hewitt question about her father, while Rice was a young child, sitting on the family’s porch with a gun across his lap:

I remember so well bombs going off in our neighborhood one night, and my father said, he put everybody in the car and we’re going to go to the police. And my mother said the police probably set that bomb off. And that’s the way that our community, therefore, the men in our community, protected us. And I think it’s a pure version of the 2nd Amendment, as a matter of fact, the right to bear arms.

Because then (and in the era when the Constitution with its Bill of Rights was ratified, and now), government was a much a threat to our individual liberties, rights, duties, as any thief, home invader, or murderer.

That’s why, also, the 2nd Amendment does not allow government to dictate to us our purpose in bearing arms.  Government’s lack of understanding about why we want this or that weapon simply is irrelevant.  And frankly, so is Rice’s lack of understanding.  We wouldn’t say you can go out and buy a tank.  Why not?  Keep in mind, the heavy weapons of our Revolutionary War, cannons, often were privately owned.  It was very impractical for a host of reasons for ordinary men to own cannons then, and it’s just as impractical, for the same reasons, for ordinary men to own tanks today.  True enough, what we were pleased to call a government in that war owned most of the cannons, just as our government today owns the tanks.  But the purpose of private ownership, for all those impracticalities, is irrelevant to government consideration.

…the right of the people to keep and bear Arms, shall not be infringed.

There’s nothing in there that says unless Government disagrees with the people’s or any person’s purpose, nor is there anything that says Arms are limited to these specific ones, nor is there anything that allows a private citizen—a neighbor, say—to block the keeping or the bearing.

The text of the 2nd Amendment is inviolate and not open to reinterpretation at will.  Like each of the clauses of our Constitution, the text provides a very clear meaning, and that meaning does not change with the winds of grief any more than it changes with the evolving standards view of a judge.  If the meaning of the 2nd Amendment needs to be changed, it must be done legitimately, by the will of a majority of We the People in each of a supermajority of our several States.  That’s what Article V is for.

And for the record: I don’t agree that the 2nd Amendment needs change; it’s fine the way it is.  What is needed is for the Feds and the State government to enforce the—constitutional—laws that are on the books.  To have law enforcement actually perform instead of tarrying outside by a stairwell support column, instead of gathering law enforcement persons dithering until law enforcement officers from another department arrive.  To allow the real first responders—those already on scene, whether school, store, or public square, and whether trained and armed for the purpose or private citizen(s) who happen to be present and carrying when an incident starts—actually to respond.

It’s a wide-ranging interview, covering much more than just the 2nd Amendment.  RTWT.

The Progressive-Democrats’ Memo

Recall that the House Permanent Subcommittee on Intelligence majority party, the Republicans, released a four-page memo, unclassified (the DoJ and the FBI didn’t want the thing released, but White House security personnel vetted it), that outlined the Republicans’ view of the handling by the FBI, DoJ, and the FISA court of the Steele Dossier and the FISA warrant obtained for spying by the American government on an American.  Recall further the hoo-raw the Progressive-Democrats raised over the release and their demand to release their own.

The Progressive-Democrats’ memo, ten pages long, was approved for release by the House as soon as the Progressive-Democrats got around to producing it, and it was sent over to the White House for vetting and release.  The memo was rejected and the minority party advised to run it by the FBI for vetting before the White House could consider it for release.  That was done, the doc vetted—and heavily redacted—and the White House released the thing over the weekend.

The opening paragraph is as instructive as it is illustrative.

The HPSCI Majority’s move to release to the House of Representatives its allegations against the Federal Bureau of Investigation (FBI) and the Department of Justice (DOJ) is a transparent effort to undermine those agencies, the Special Counsel, and Congress’ investigations.  It also risks public exposure of sensitive sources and methods for no legitimate purpose.

This on a document originally marked TOP SECRET/NOFORN, yet expected to be released forthwith.

My irony meter is pegged.  My hypocrisy warning horn is sounding.

Telecommunications Security

The US is concerned about People’s Republic of China’s cell phone company, Huawei, and the threat it poses to our national security, through an ability to use its equipment to conduct espionage and to shut down our communications networks, were it to get a significant foothold in our cell phone network, whether via its cell phones or its network equipment—its routers, switches, and cell-tower gear.  The concern stems from Huawei’s relationship with the PRC government, which makes the company an arm of that government.

The British government, on the other hand, is embracing Huawei with open arms, even as it seeks ever more intimate economic ties with the PRC.  Brit intel has warned the government of these risks, but the government has said to pay no mind.  After all, in answer to the concerns, Huawei set up and funds a lab that tests its equipment.

30 people with UK security clearances disassemble Huawei equipment and evaluate hardware and software for security vulnerabilities. Huawei funds and operates the lab, and the staff are Huawei employees. Overseeing the operation is a board composed of mostly senior British intelligence and government officials, as well as three Huawei representatives.

Does anyone seriously expect that “senior British officials,” as isolated from the actual work as they are, will be able effectively to oversee the “evaluations?”

The wolf is minding the flock. How braindead is that?