Category Archives: rights

Privacy in a Technological World

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In a ruling rejecting an application for a search warrant, Magistrate Judge Kandis Westmore, operating in the Northern District of California, had this remark in particular.

Citizens do not contemplate waiving their civil rights when using new technology, and the Supreme Court has concluded that, to find otherwise, would leave individuals “at the mercy of advancing technology.”

Encouragingly, this remark also cited (via the quote in the remark above) a Supreme Court ruling, Carpenter v United States [citations omitted]:

We have kept this attention to Founding-era under-standings in mind when applying the Fourth Amendment to innovations in surveillance tools.  As technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes, this Court has sought to “assure[ ] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” For that reason, we rejected in Kyllo a “mechanical interpretation” of the Fourth Amendment and held that use of a thermal imager to detect heat radiating from the side of the defendant’s home was a search. Because any other conclusion would leave homeowners “at the mercy of advancing technology,” we determined that the Government—absent a warrant—could not capitalize on such new sense-enhancing technology to explore what was happening within the home.

The Founders wrote our Constitution to be technology agnostic, and in fact there is no mention of technology qua technology in it.

Westmore’s ruling can be read here. Carpenter can be read here (it’s long).

The Paranoid Hysteria of Progressive-Democrats

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Presumptive Progressive-Democratic Party primary candidate for President in 2020 Congressman Eric Swalwell (D, CA) (who already has touted the use of the government’s nuclear weapons against any who disagree with his wish to limit our ability to keep and bear arms) is a core example.  The question, he says,

has “shifted” from “whether the president is working with the Russians” to “what evidence exists that the president is not working with the Russians?”

Because guilty on proof by Swalwell’s say-so.

And

I think that an unwillingness to sit down with the special counsel demonstrates a continued effort to obstruct and delay the inevitable[.]

Because no man—not even a President—has an obligation to cooperate with an investigation of that man.  Oh, wait—yes, he does; Swalwell says so.

And

“now we know” the notes from the 2018 summit in Helsinki have been “effectively destroyed” by the president.

Because a newspaper said so.

If Donald Trump took them, as the Washington Post story states, then they’re effectively in the hands of the subject and, you know, I don’t trust Donald Trump to turn them over.  We actually know in the past that he’s known to just rip up important pieces of paper and destroy them—notes that are important for presidential records. There’s been reporting on that. So, I see it as we have no way of obtaining the physical evidence now other than getting it from Donald Trump, someone who’s been wholly uncooperative.

It’s been reported.  What more proof is needed?  Well, here’s more: Swalwell doesn’t trust the President.  There it is.  Never mind that not even in that newspaper evidentiary story was there a claim that Trump had destroyed anything.

Can our nation—already harried by the identity politics and divisiveness of the Progressive-Democratic Party—afford such irrationality in the White House?

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.
…
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.

Negotiate on the Wall?

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That’s what some Progressive-Democrats in the House claim they want to do.  After the partial government shutdown is ended.  Congressmen Eric Swalwell (D, CA) and John Garamendi (D, CA) have made such commitments.

However.

Speaker Nancy Pelosi (D, CA) has told President Donald Trump she will not negotiate on a border wall, demanding no funding whatsoever, even after the partial shutdown is ended.

Some questions arise.

Was Pelosi lying when she said that to Trump?

Was Pelosi lying to her caucus when they elected her Speaker on the basis of her promise to a significant fraction of her Party that she always and forever would oppose border wall funding?

Did Swalwell and Garamendi lie when they make their promise to negotiate after the partial shutdown ended?

How is it possible to negotiate with a Party whose members’ word cannot be believed?