Tag Archives: free speech

More Government Intrusion

Posted on by
Reply

Although the Internal Revenue Service denies that it actually does this, of course.  Documents obtained from the IRS by the ACLU pursuant to an FOIA request demonstrate that the IRS believes that it can snoop into private email without first obtaining a search warrant.  The warrant, of course, would require the IRS to convince a court both that they know with some specificity for what they’re searching and that they have probable cause for the searching.

According to a 2009 IRS employee handbook, though, the tax agency said the Fourth Amendment does not protect emails because Internet users don’t “have a reasonable expectation of privacy in such communications.”

And

…the current online version of the IRS manual says that no warrant is required for emails that are stored by an Internet storage provider for more than 180 days.

Never mind the degree of mind reading required of the IRS (and the courts) to arrive at a conclusion concerning what a private citizen has in his own mind concerning his own expectations.  This is a blatant attempt by the IRS simply to slide past our courts as if they had no existence—or relevance to the Internal Revenue Service.

On that matter of email older than 180 days, or on opened email not requiring a warrant, it seems to me that the age and opening criteria create a false dichotomy in privacy and 4th Amendment rights.

Age is wholly irrelevant.  Privacy has no expiration date.

Having opened a correspondence in no way puts that correspondence, of necessity, into the public arena.  Opening a letter and leaving it on a table next to my couch at home certainly does not, nor does leaving an email on my personal PC or laptop.  Nor does having a copy of my email on an Internet service provider’s servers, whether I’ve opened the email or not.  The ISP’s failure to manage its storage in no way causes any alteration of my privacy.

Too, in what way are providers required to turn over that which does not belong to them—they’re pipelines, not publishers or authors in this context, after all?

Finally, a question: what’s the government’s “view” on encrypted correspondence that’s been left on a provider’s server for more than 180 days?  Am I obligated by that, somehow, to give up the encryption key on government demand with no warrant extant?

Mayor Michael Nutter and Censorship

Posted on by
Reply

The Weekly Standard ran an article in their 15 Apr issue concerning an egregious assault on free speech by none other than the self-important mayor of Philadelphia, Michael Nutter.  It seems the Philadelphia Magazine was so rude as to run an article about one journalist’s view of “Being White in Philly,” and Nutter has used his office as mayor—not his status as resident—to attack both the magazine and the article’s author and publisher.  His official letter—on city stationary—to the Philadelphia Human Relations Commission can be read here and here.

In response to Nutter’s assault, I sent the letter below to the Philadelphia Human Relations Commission.  We’ll see whether the PHRC takes it seriously, and by extension whether they take race relations and/or free speech seriously.

Ms Rue Landau
Executive Director
Philadelphia Human Relations Commission
601 Walnut Street
Suite 300
South Philadelphia, PA 19106

Dear Ms Landau:

I am a blogger, but that’s not why I’m writing to you.  I’m writing to formally object to an egregious attempt at government censorship by Mayor Michael Nutter, an assault that, if allowed to go unsanctioned, harms not only Philadelphians, but all Americans.

Last month Mayor Michael Nutter sank to a new low even for a member of a party that has long pretended that its constituents were the only citizens civically engaged and socially active in the Philadelphia area.  His March letter, “Mayor Letter to PCHR,” published among other places at Philly.com’s http://media.philly.com/documents/MayorLettertoPCHR.pdf Web page, aggregates the disparaging beliefs, the negative stereotypes, the ignorant condemnations typically, and historically ascribed to those who disagree with his party’s principles into one pathetic, uninformed letter that objects to an article in Philadelphia Magazine.  Mayor Nutter, among other things, decries those Philadelphia residents, “many of whose names either the author or the speakers themselves were too cowardly to provide,” for their anonymity without any trace of the irony that not only is anonymity a right in free speech, Mayor Nutter demonstrates the necessity of that anonymity with his governmental attack on them and on that article.  That a mayor of a major city in the United States thought a collection of these despicable, over-generalized, mostly foolish objections to a civil discourse the trend of which he disapproves rose to the level of warranting governmental attack is unfortunate enough.  Worse, the beefs of the mayor of the nation’s fifth-largest city about the “offending” article—all of them—go unanswered by him: what matters is that those who wrote and published this speech of which he disapproves be investigated, to allow the mayor to pass along his own misguided perception of certain others as a group that, in its entirety, is dishonest, uninitiated, irresponsible, and largely bigoted.  Moreover, compounding the sin of having made his complaint an official governmental charge, the mayor cynically and hypocritically insists that his own motive is purely for the benefit of all Philadelphians.

Anyone who reads a newspaper or watches network (or cable!) news knows that conversations about race must, of necessity, include not only black but Caucasians, Latinos, and members of other ethnic groups as well—either in the same conversation or individually in a collection of conversations—a position suspiciously absent from a letter that decries an article that attempts to be one of those conversations about race.  More egregiously, Mayor Nutter, who quotes the article that so offends him that “[w]hat gets examined publicly about race is generally one-dimensional, looked at almost exclusively from the perspective of people of color,” commits the same sin, by examining race exclusively from the perspective of, apparently, a city government that has used isolated argument by groups that are not “in” to draw pervasive generalizations that the mayor then ascribes to the belief system of Philadelphia’s entire non-liberal population.  Mayor Nutter avers his objections decision by decrying, first, the magazine’s statement that it “is a story” merely because it features white Philadelphians, as opposed to Philadelphians of color, talking about race, as if merely a government official claiming the article’s illegitimacy makes it so.  Mayor Nutter’s second contention seems to center on the premise that publishing a piece about race to which he objects renders the problems of the city’s “underclass” no longer his party’s, and its alone, to fight, as if the city’s race relations—good or ill—are not a matter for all Philadelphians, or more broadly, for all Americans.

The American Heritage Dictionary defines “letter” as “2. A written or printed communication directed to a person or organization[,]” with no intimation of factual basis inherent in the concept.  However, as Mayor Nutter notes about the article that offends him, trying to deconstruct his letter’s many logical fallacies not only is an exercise in futility but offers his letter unearned credibility.  Obviously, unless the Mayor personally knows the publisher or author, an assumption of nefarious purpose by him is patently foolish.  Obviously, the many positive, quality opinion pieces and news articles of the Philadelphia Magazine‘s publishers and journalists, and those of journalists of all political persuasion, are denigrated by the cynical presumptions of a mayor whose job, after all, seems to be to root out all writings of which he personally disapproves.

Rather than raging against the abject ignorance reflected in this uninformed, ill-advised, ill-considered, uninspired, and thoroughly unimaginative letter, I believe we should take the opportunity Mayor Nutter’s letter offers to conduct a more comprehensive, fact-intensive evaluation of the racial issues and attitudes that provide the prism through which not only Mayor Nutter’s administration, but administrations at all levels across the country, view the many challenges that confront us as a community and as a nation.  I therefore request that the Philadelphia Commission on Human Relations, which is charged by the Philadelphia Home Rule Charter with a mandate, among other duties, to “institute and conduct educational programs to…promot[e]…understanding among persons and groups of different races, colors, religions and national origins,” conduct an inquiry into the state of racial issues, biases, and attitudes within and among the administration of the City of Philadelphia.

Also, because “[i]n the performance of its duties the Commission may cooperate with interested citizens and with public and private agencies,” I ask that the Commission take testimony from individual citizens and from organizations including but not limited to community groups, non-profit organizations, community development corporations, law enforcement agencies, and religious organizations—perhaps citizens and organizations representing the ethnic, economic, and social diversity easily found in your great city—for the purpose of publishing a report on the state of racial issues in Philadelphia, identifying the racial attitudes, both positive and negative, that pervade the Philadelphia city administration’s civic interaction and discourse; the obstacles and opportunities that those attitudes present; and recommendations for the improvement or enhancement of the city government’s racial interaction and the encouragement and embrace of the diverse culture that Philadelphia should be able to enjoy.

Finally, I ask that the Commission consider specifically whether Mayor Michael Nutter is appropriate for rebuke by the Commission in light of the potentially inflammatory effect and the reckless endangerment to Philadelphia’s racial relations and more broadly to free speech possibly caused by him with his official, government-sanctioned complaint to this Commission, made with a view to attack the speech of which he personally disapproves and whose speakers he used government auspices to seek to sanction.  While most Americans fully recognize that constitutional protections afforded the press are intended to protect the media from censorship by the government, Mayor Nutter clearly does not.  It’s true that the First Amendment, like other constitutional rights, is not an unfettered right, and notwithstanding the First Amendment, a publisher has a duty to the public to exercise its role in a responsible way.   However, government is not allowed, under our Constitution, to dictate the definition of “responsible.”  Mayor Nutter’s cynical claim of equivalence between a serious article concerning race relations is akin to “shouting ‘fire!’ in a crowded theater,” is little more than a disingenuous attempt to arrogate control over a conversation about so serious a matter as race relations to government.  I therefore ask the Commission to evaluate whether the “speech” employed in Mayor Nutter’s letter is itself prejudiced, fact-challenged generalizations and so an extreme reaction.  Only by debunking myth with fact, and by holding accountable those who seek to confuse the two, can we insure that the prejudices reflected in the letter are accorded the weight they deserve: none at all.

Sincerely,

Eric Hines
APlebesSite.com

Big Brother Alive and Well?

Posted on by
Reply

The House Judiciary Subcommittee held a meeting a week ago Tuesday on potential new provisions of the Electronic Communications Privacy Act (ECPA) of 1986, and the outcome was very disquieting.  Richard Littlehale, of the Tennessee Bureau of Investigation, made this recommendation, and he was serious:

Billions of texts are sent every day, and some surely contain key evidence about criminal activity.  Text messaging often plays a big role in investigations related to domestic violence, stalking, menacing, drug trafficking, and weapons trafficking.

The subcommittee wound up suggesting longer retention times of interpersonal electronic messages as well as the creation of expedited federal access to these databases.

That’s the ticket: we need to start prying into everyone’s personal business because someone, somewhere, might be thinking about committing a crime.  Our 1st, 4th, and 5th Amendments need to by federally regulated.  Sure.  That’s the story, and they’re sticking to it.

Already, many of the message transporters and facility providers retain copies of our electronic correspondence for inordinately long times: Verizon, for instance as recently as 2010, kept customer text messages on file for three to five days, while Virgin Mobile stored them for 90 days.

Other providers haven’t been so cavalier with our private correspondence.  AT&T (then Cingular Wireless in the text-messaging arena), Sprint, and Nextel didn’t hang onto any of it for any length of time.

Of course, that means these…persons…in the House need to standardize message handling.  All for the convenience of government.  Littlehale talked about this, too.

We’re at the mercy of the service providers to determine how long it’s going take them to comply with that request [for the customer’s messages].  I would suggest whatever the level of standard of proof, the thing that really matters most to us at state and local law enforcement is prompt response.

Well, I would suggest that this is a textbook example of why none of the providers should retain this information at all, for any length of time.

And this from Republicans and Conservatives.

Another Victory over Big Government

Posted on by
Reply

Here’s the long and the short of it, as summarized in The Wall Street Journal:

A federal judge this week struck down a controversial set of laws allowing the Federal Bureau of Investigation to seek people’s records without a court’s approval, saying the strict secrecy orders demanded by the laws are not constitutional.

US District Judge Susan Illston (Northern District of California) ordered the government to stop sending national security letters or to stop trying to enforce gag orders related to them, but she stayed her order pending the government’s appeal.

Of course, it’ll go to the 9th Circuit, which means it will go on to the Supreme Court, so the fight isn’t over.  But this is an excellent start.

Illston’s opinion decried these violations of Americans’ individual freedom:

[The] pervasive use of nondisclosure orders…creates too large a danger that speech is being unnecessarily restricted.

She added [emphasis added]:

[T]he statute impermissibly attempts to circumscribe a court’s ability to review the necessity of nondisclosure orders.  …the NSL nondisclosure provisions significantly infringe on speech regarding controversial government powers.  …  As written, the statute expressly limits a court’s powers to modify or set aside a nondisclosure order to [certain] situations….  The statute’s intent…is incompatible with the court’s duty to searchingly test restrictions on speech.

There are two problems with these letters.  One is that they allow searches without a court’s warrant.  The FBI can use them to search for phone data and for financial and electronic records, and all the FBI agent needs is his Field Office Special Agent in Charge to say it’s all jake.  This is a clear violation of our 4th Amendment.

The other problem worsens this exponentially: the FBI can require (or could before Illston’s ruling) the recipient of the letter to keep quiet about his receipt—denying the owner of the records any opportunity to respond to the search before it happens.  This also denies two critical aspects of the 1st Amendment: that right to speak of receipt and the duty of a court to adjudicate any allegation of a 1st Amendment violation.

Illston’s ruling can be read here.

Score One for the Other Part of the 1st Amendment

Posted on by
Reply

The Wall Street Journal’s Law Blog describes a victory for religious freedom.  In a case about which I first wrote just after its inception, a gang known as Freedom From Religion Foundation sued the village of Warren, MI, for having the temerity to put up a Christmas display without permitting FFRF to put up a sign next to it announcing that religion is “myth and superstition that hardens hearts and enslaves minds.”

First, Mayor James Fouts told them to take a hike, followed by their suit:

If you requested permission to put up a sandwich board saying that there is no Santa Claus, you would be met with the same response.  Santa Claus lives in the minds and hearts of many millions of children.  The belief of God and religion lives in the hearts and minds of hundreds of millions of people and is as much a part of the fabric of America, as the belief in democracy and freedom….

Your non-religion is not a recognized religion.  Please don’t hide behind the cloak of non-religion as an excuse to abuse other recognized religions.

Then a Michigan district court told these folks to take a hike.

Then the 6th Circuit told this…crowd…to take a hike.  On the matter of Warren’s alleged favoring of the religious over the secular, they had this:

That is not true even on its own terms.  All but one of the objects in the holiday display are nonreligious.  Ribbons, ornaments, reindeer, a lighted tree, wreaths, snowmen, a mailbox for Santa, elves, wrapped gift boxes, nutcrackers, poinsettias, candy canes, a “Winter Welcome” sign—all of them, all that is but the nativity scene—are secular…

A city does not run afoul of the Establishment Clause by including a creche in a holiday display that contains secular and religious symbols.

On the matter of the “Winter Welcome” greeting in particular, the 6th expanded with this [emphasis added]:

When one neighbor greets another in mid-December with “Happy Holidays,” it is the rare person who hears “Happy Holy Days.”  What was once the most religious of invocations has become one of the most faith-neutral, even secular.  One indeed can fairly wonder who has co-opted whom over time with these displays and words.  But that is a matter for another day.

On the gang’s bellyache that Fouts’ letter was itself some sort of cynical violation, the 6th had this:

These are not the words of someone trying to establish any one religion or religion in general; they are the words of someone trying to explain the common sense risks of disparaging faith-based and secular symbols, whether a creche or a Santa, alike….

It may be true that the Mayor misapprehended the Religion Clauses when he implied that atheists receive no protection from them by saying that the Foundation’s “non-religion” was “not a recognized religion.”  In this respect, the Mayor, apparently untrained as a lawyer, may not have missed his calling….  But this defense of his actions, premised on a misreading of precedent, does not transform his actions or the City’s display into an establishment.

On the gang’s crying about their free speech rights, here’s the 6th, again:

[Warren] could choose to add a Santa.  And it could choose to deny a sign saying, “There is no Santa.”  It could choose to incorporate a message about Ramadan.  And it could choose to deny a message disparaging any one religion or religion in general.  Just as Congress’s creation of a National Day of Prayer on the first Thursday of May does not compel the legislature to recognize a National Day of Non-Prayer each year, so too the City of Warren could opt to have a holiday display without a Winter Solstice sign.  Such holiday displays are quintessentially government speech….

And the Foundation, like everyone else, is free to urge the City to add or remove symbols from the display each year or to try to elect new officials to run the City—the customary answer to permissible government speech and the customary answer to policies with which citizens disagree.

FFRF Co-President Annie Laurie Gaylor responded to her loss without any sense of irony:

Apparently we are a Christian nation, and cities may prefer religion over non-religion[.]

On the first, well, duh.  On the second, she needs to ask her lawyer to read the 6th‘s opinion to her.  It’s not what they said.  Her lawyer can find that opinion can be found here.

Thus we see the benefit of not taking the easy way out—the coward’s way out—and acceding to the demands of such anti-freedom fighters as these as soon as the latter threaten.

These lose—as all bullies lose—when faced with forthright and just opposition.

Facing down bullies is expensive, certainly.  However that expense pales beside the expense of meekly surrendering freedoms for the demanding.  Once you pay the Danegelt, you never get rid of the Dane.