Tag Archives: freedom

In Which the Florida Supreme Court Gets One Right

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Police in Florida aren’t allowed to use a cellphone to track someone’s movements according to a sweeping new ruling from the Florida Supreme Court.

The court by a 5-2 vote ruled Thursday that authorities in Broward County had no right to stop and arrest Shawn Tracey for possession of more than 400 grams of cocaine.

The police had a warrant to tap his cell phone calls, but that warrant didn’t include authorization to use his cell phone to track him.

This is entirely appropriate. If the police want to invade a citizen’s privacy, they need either to convince a court that they have probable cause for that, or they need to actually and overtly invade: in the present context, to assign a cop to follow him around.

One of the two dissenting justices, Charles Canady, though, misunderstands the concept of privacy. He cited the US 5th Circuit as follows:

Because a cell phone user makes a choice to get a phone, to select a particular service provider, and to make a call, and because he knows that the call conveys cell site information,…he voluntarily conveys his cell site data each time he makes a call.

Canady added under his own thinking,

Given the known realities of how cell phones operate—realities understood and accepted by all but the most unaware—…cell phone users have neither a subjective expectation of privacy nor an objectively reasonable expectation of privacy regarding the cell site information generated by their cell phones.

Of course the cell phone user does, on both counts. Notice, as Canady apparently does not, that the voluntary conveyance of the information is to a private enterprise, not to a government entity. We citizens can, and we do, have a very strong expectation of privacy regarding any information we surrender to a private entity as a necessary requirement for that entity to provide the service for which we’re paying it.

Notice further, that the caller expects that private enterprise to safeguard our private information, whether it’s surrendered so that the enterprise becomes able to provide the contracted service or whether it’s surrendered more voluntarily as a non-necessary adjunct to that service. This is made clear by the public’s—us people’s—hue and cry over such trackings, by any entity, commercial or otherwise.

If a government entity wants to invade a man’s privacy, it must convince a court of sufficient probable cause as to get a warrant authorizing the invasion. As the police understood in the present case, when they got the warrant to tap Tracey’s cell phone calls—and chose not to get a warrant to collect his location data.

The Court’s ruling, including Canady’s dissent, can be seen here.

A Thought on Disparate Impact

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Disparate impact is the theory that a policy, or standard, or… is inherently racist if it has an outcome that impacts one group of Americans more than it does other groups of Americans, regardless of any racist intent. If the standard simply affects one group more than another, it must be racist (sexist). Let’s take as an example for this article student discipline in our grade schools. Disparate impact says that discipline standards that result in more black students being disciplined than white students must be racist, even if the discipline is meted out to members of both groups for the same misbehavior, with either no exceptions or identical exceptions allowed.

Let’s unroll that a ways.

Why are more black students disciplined than white? Because they misbehave more often.

Well, why do they misbehave more often? One major reason is lack of discipline at home—lack of home bringin’ up in the parlance of my youth. Either these kids don’t know how to behave at school, or they’re used to getting away with misbehavior.

Why is there that lack? A major reason for this is the higher incidence of broken homes—single parents (usually, single mothers)—in black homes than in white homes. Another reason, closely related, is the greater poverty in black homes than in white, which drives and is driven by that single parent status: the (mother) is occupied with trying to bring in enough money to support her family and lacks both time and energy at the end of her day to deal with her children.

Why is there that difference in poverty? Certainly, racism plays a part at this origin of the students’ behavior problems: the black mother is less likely to be able to get a job at all than is the white mother otherwise similarly situated solely because the one is black and the other is white.

But there’s another major source for this origin. Government welfare policies, with their attendant welfare cliffs, both encourage dependency on government (even to the point of eliminating welfare work requirements that had been in place since the early Clinton years) and make it extremely expensive to move up an income ladder that’s based on earned income. This traps welfare recipients in their poverty, which traps those single-parent families in their poverty, which traps those single parents in their time and fatigue cycle, which severely harms those parents’ capacity for teaching their children behavior standards—giving them that home bringin’ up—which leaves those children more likely to misbehave in school, which exposes those children to disciplinary action by the school.

But the Left doesn’t want to address the disparate impact of that origin—their welfare programs. Or acknowledge that what’s being illuminated by disparate impact is not racism or sexism, but an underlying failure of existing policy. Not at all.

And so, not only do we have the disparate impact of government policy, the remaining true racism that interferes with a black mother’s ability to get a job is obscured and made more difficult to address directly.

Hong Kong and Freedom

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The backdrop is this: in the last few days in the Hong Kong district of Mong Kok, there have been violent clashes between peaceful student and other protestors on the one hand and “locals” consisting, allegedly, of older residents and small business owners mixed with members of the triads on the other hand, this mix attacking the protesters. The latter are losing income from their prostitution and drug…enterprises…and they’re upset about it.

My own view is that the residents and business owners are being provoked and the triads winked at by the PRC in the hope of getting sufficient pretext to justify the government’s coming violent crackdown. That’s a separate question, though; what interests me here are the charges being leveled by the current Hong Kong administration against those who were arrested during those weekend clashes.

Hong Kong’s Secretary for Security, Lai Tung-kwok, said that among other charges, those arrested had been charged with unlawful assembly.

How is it possible to unlawfully assemble in a free society?

PRC, Hong Kong, and Rights

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The situation in Hong Kong, which the People’s Republic of China has created with its high-handed treatment of the Special Administrative Region, is getting tighter.

[Chief Executive Leung Chun-ying] Leung told voters it is better to agree to Beijing’s plans for nominating candidates and to hold an election, than to stick with the current system of having an Election Commission choose the chief executive.

“It is definitely better to have universal suffrage than not,” Leung said. “It is definitely better to have the chief executive elected by 5 million eligible voters than by 1,200 people. And it is definitely better to cast your vote at the polling station than to stay home and watch on television the 1,200 members of the Election Committee cast their votes.”

This is cynically misleading. The 1,200 to whom Leung referred are the nominating committee of the Communist Party of China. They’ve been the ones—and they continue to be the ones, now formally under the control of the Party’s Standing Committee—who will determine who the candidates will be that those “5 million eligible voters” can select from. Those 5 million are only being allowed to rubber stamp the selection made by those 1,200. This is no elective choice. Of course, Leung and his PRC masters know this.

And

[PRC President] Xi Jinping, who has taken a hard line against any perceived threat to the Communist Party’s hold on power, vowed in a National Day speech to “steadfastly safeguard” Hong Kong’s prosperity and stability.

This is just wind in the trees. Xi knows full well that Beijing cannot “steadfastly safeguard” Hong Kong’s prosperity and stability. Only the people of Hong Kong, acting for and by themselves, without outside interference, can do that.

And

China’s government…so far it has not overtly intervened, leaving Hong Kong authorities to handle the crisis.

This is a misunderstanding. The Hong Kong authorities are in the streets, not in the government buildings. The people are sovereign over their government in a free state. Of course, this is hard to realize from inside a despotic state.

The protesters, upset that Chief Executive Leung Chun-ying has refused to meet them, have threatened to expand their demonstrations unless he resigns and the Chinese leadership agrees to broader electoral reforms.

It’s clear from the breadth of these protests, that the PRC has lost the consent of the Hong Kong-ese to govern them. PRC governance, thus, is illegitimate. This is corroborated by the protest news clampdown the PRC has done, especially in contrast to the freely flowing protest news within Hong Kong.

And finally, there’s this failure, this one from the West.

British Prime Minister David Cameron saying he planned to summon the Chinese ambassador to discuss the dispute, saying it is essential that Hong Kong’s people have a genuine right to choose their top leader.

This is an even greater misunderstanding, both by its existence and coming as it does from the leader of the birthplace of John Locke. No, Prime Minister, each one of Hong Kong’s people is created with an inalienable right to his own liberty and happiness. That means he has an inalienable right to choose his own government and the men who operate it. What is essential is that Hong Kong’s people have that right genuinely acknowledged and accepted.

Arrogance and Encryption

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I wrote a bit ago about liberty and encryption. Here’s an example of the arrogance of the government’s attitude toward an American citizen encrypting his communications against government snooping.

Regarding Google and Apple plans to market encryption capabilities for their smart phones, FBI Director James Comey had this to say:

What concerns me about this is companies marketing something expressly to allow people to place themselves beyond the law[.]

This comes in the context of Brent Kendall’s paraphrase of Comey’s concern in Kendall’s WSJ article, also summarized in the link just above

FBI Director James Comey on Thursday said he is concerned about moves by Apple Inc and Google Inc to market phones that can’t be searched by law enforcement….

There are two things wrong with this, both of which a talented lawman at the peak of his career knows full well. First is the fact that encryption does not at all place anyone “beyond the law:” get a warrant. Also, the government, as has been well publicized, has an IT capacity fully capable of breaking encryption should the cell phone’s owner decide jail is preferable to honoring the warrant. Finally, the cell phone service providers aren’t the ones engaged in the communications of government interest; the cell phone owners are. The only legitimate targets of warrants for communications are the communicators, not the service providers.

The second thing wrong is the appalling arrogance inherent in Comey’s quoted statement. Leaving aside the foolishness of his claim of unsearchability, he’s cynically conflating “the law” with “law enforcement,” the police. Of course, this is…inaccurate. “The law” is what we citizens, through our elected representatives, say it is; the police are not the law but folks we hire to enforce it.

Here is the modern Liberal government in action.