Tag Archives: freedom

Russian Acquisitiveness

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Russian Foreign Minister Sergei Lavrov is insisting that Japan accept the outcome of WWII as a necessary pre-condition to a peace agreement between Japan and Russia and “improved relations,” including trade, between the two.

That outcome includes Russian occupation of Japan’s Northern Territories, islands in the Kurile chain immediately north of the main body of Japan.  Russia, which joined the war against Japan only in the waning months after Japan’s war effort was in full collapse, seized those islands and now claims them as “rightful spoils.”

Lavrov has already warned the Japanese not to engage in “unilateral rhetoric.” Those islands are Russia’s; it stole them fair and square and has occupied them ever since.

Japan should accept the ceding of its Northern Territories to conquering Russia and be quiet.

Right.  Sort of like Russia is demanding in Europe.

A Magistrate Judge Gets One Right

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Of course, the Magistrate Judge Kandis Westmore’s ruling can be overturned on appeal by a District judge in the Northern District of California in which she operates, or on appeal on the ruling’s way up the appellate chain.  Nevertheless, her ruling stands, for now.

In its essence Westmore ruled that, even with an otherwise valid search warrant, a person cannot be compelled to unlock a digital device like a cell phone with that person’s biometrics—a fingerprint, a face, or an iris, for example.

There was a technicality that itself would have invalidated the warrant: it was overbroad.  It requested authority to unlock and search any device found inside the otherwise legally searched premises, including those owned or controlled by anyone happening to be present at the time of the search, and Westmore found that request to be neither limited to a particular person nor a particular device as the 4th Amendment requires.  That’s a 4th Amendment failure of the warrant.

The larger principle, though, flows from a 5th Amendment bar against forced self-incrimination violation. Westmore ruled that biometrics, when used in the context of a search—vis., to unlock a personal digital device—is no different from a personal passcode, and personal passcodes have already been ruled inaccessible to the government, even with a search warrant.  That would be forced testimony against oneself.  The owner of the device must voluntarily give up the passcode, and he cannot be “compelled” to volunteer [citations omitted].

The Court finds that utilizing a biometric feature to unlock an electronic device is not akin to submitting to fingerprinting or a DNA swab, because it differs in two fundamental ways. …the Government concedes that a finger, thumb, or other biometric feature may be used to unlock a device in lieu of a passcode. In this context, biometric features serve the same purpose of a passcode, which is to secure the owner’s content, pragmatically rendering them functionally equivalent.
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It follows…that if a person cannot be compelled to provide a passcode because it is a testimonial communication, a person cannot be compelled to provide one’s finger, thumb, iris, face, or other biometric feature to unlock that same device.

And especially this, as I’ve argued elsewhere.

That the Government may never be able to access the complete contents of a digital device, does not affect the analysis.

Government convenience must never be allowed to override the individual liberty of an American.

In the end,

The Government may not compel or otherwise utilize fingers, thumbs, facial recognition, optical/iris, or any other biometric feature to unlock electronic devices.

It matters when, and why, biometrics are used.  The outcome here, should it survive appeal, is a stout blow in favor of individual privacy and a firm limit on Government’s authority to invade an American’s person[], houses, papers, and effects.

The magistrate judge’s ruling can be read here.

A Judge’s Error

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The Trump administration had expanded rules allowing employers to opt out of being required to provide birth control coverage to their employees at no cost to the employees, so long as the opting out was convincingly based on religious or moral grounds.  Federal District Judge Haywood Gilliam of the Northern District of California has issued an injunction blocking enforcement of the expansion while an underlying lawsuit against the expansion is underway.

Ordinarily, blocking an enforcement while the underlying case proceeds is no big deal, but this one is just plain wrong.  Gilliam based his ruling in significant part on the premise that

the [expansion] would result in a “substantial number” of women losing birth control coverage, which would be a “massive policy shift.”

For one thing, given how cheap birth control drugs and devices are and how easily obtained prescriptions for them are, it’s not at all clear that a “substantial number” of women would be unable to obtain birth control drugs or devices.

But the larger, vastly more important matter is this.  As Gilliam himself noted, the expansion would be a policy shift (massive or not, that’s irrelevant here).  Policy matters are political matters, and so they clearly are outside the purview of the courts.  Policy—political—matters are the exclusive province of the political arms of our government and of We the People.  A judge who intrudes, from his bench, into political matters clearly violates his oath to uphold the law.  Making policy has no place in his oath.

Religious Bigotry?

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North Dakota wants to let its high schools teach a Bible studies class, and the ACLU (among others) has gotten its institutional panties in a twist over it. State Congressman Aaron McWilliams (R) has a bill moving through the State’s legislature that would achieve that.  He said

The intention of this bill is to provide an option to schools to teach a class on the bible from a historical perspective.  My position is that no religious text should be excluded from being taught as it relates to the historical or philosophical influences in our history or on our society today.

The class would be an elective amounting to 1/6 of the total social studies requirement for graduating from a North Dakota high school.

The ACLU thinks that teaching a religious document even from a historical or philosophical perspective, even when it’s not a required course, is somehow the State establishing or supporting a particular religion.  That plainly isn’t the case; even the august personages of the ACLU know that—or American history wasn’t a safe space for them and they were triggered to unconsciousness by their grade school lessons and their junior high civics lessons.

Heather Smith, Executive Director of the North Dakota chapter of the ACLU does have a point, though.  Sort of.

A school could teach comparative religious classes, or you could talk about the Bible’s relationship to literature, art, or music[.]

But not its relationship with our history or culture, or with western civilization’s history or culture generally?  Not its relationship with our national philosophy, such as it is, or with philosophy generally?  Apparently, Smith was triggered by her high school logic class, too.

On the other hand, the comparative religion concern has some validity.  Perhaps McWilliams’ bill could include an option to teach an additional elective course, also worth 1/6 of the total social studies requirement, that teaches the Torah and the Talmud “from a historical perspective.”  After all, we are a Judeo-Christian nation, with a staunch Judeo-Christian history and underpinning.

Such a broadened perspective on who we are, how we began, and how we came to be where we are now—including these incessant attacks on our Christianity and Judaism—would strengthen our American culture, and it might inform even the members of the ACLU.

Side tidbit: the first Georgian patriot to die in combat in our Revolutionary War was a Jew.

Of Course They Can

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President Xi Jinping of the People’s Republic of China increased pressure on the Republic of China to surrender and be “unified” with the PRC.

Mr Xi said differences in political systems can’t be used as an excuse to resist unification.

Of course they can. Those differences are what makes the two nations separate from each other.  Never mind that the two have been independent of each other ever since the mainland under Mao Tse-tung won then-China’s civil war and drove the Kuomintang off the mainland onto the island of Taiwan, with Mao then creating the PRC.  The reason for the civil war was precisely those differences, differences over which the Communists were willing to kill those who opposed them.

Xi went on.

He promised Taiwanese people a peaceful and prosperous future with the mainland….

Right.  Just ask the folks on Hong Kong, who were the victims of the same promise and who now see their freedoms eroded and in many cases outright eliminated.  They’re not even allowed to elect their own political leaders; they must choose from a list the Communist Party of China provides them.

Xi’s word is worthless, and the citizens of the RoC, along with their government, know that full well.  RoC President Tsai Ing-wen: Xi’s

framework would place the island under China’s rule with limited autonomy, as has been done in Hong Kong.
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“Taiwan will never accept ‘one country, two systems,'” Ms Tsai said. “The vast majority of Taiwanese public opinion also firmly opposes ‘one country, two systems.'”
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“China must face the reality of the existence of the Republic of China, Taiwan,” she said…. She said [that] Beijing must “not reject the democratic system that the Taiwanese people have built.”

We need to stand loudly, overtly, and practically with the RoC.  We need to increase naval patrols of the Taiwan Strait, set up a naval basing right agreement for Kaohsiung City along with an Air Force basing agreement for Ching Chuan Kang and Tainan Air Bases.  We need to increase sales of modern air and naval weapons systems to the RoC.  We need to increase our trade ties with the nation, and we need to more actively support it diplomatically.

That’s just a start.