Tag Archives: freedom

A Concept of Privacy

Posted on by
Reply

Personal privacy and protections against warrantless searches got a boost from the Supreme Court earlier this week.

The Supreme Court said Tuesday that police need a warrant to search vehicles parked at private homes, the second time this month the justices rejected government arguments for expanding the “automobile exception” to Fourth Amendment rules against unreasonable searches.

The case at hand involved a stolen motorcycle parked in the driveway of a private residence and protected from the elements (and perhaps (even probably) from being seen by police) by a tarp.  A police officer recognized from Facebook postings the residence, saw the fact of a motorcycle under the tarp, entered the property, lifted the tarp, and looked over the motorcycle—all without a warrant.

Writing for the Court in an 8-1 decision, Justice Sonya Sotomayor wrote

Just like the front porch, side garden or area “outside the front window,” the driveway enclosure where Officer [David] Rhodes searched the motorcycle constitutes [the area where] activity of home life extends….

And

Given the centrality of the Fourth Amendment interest in the home and its curtilage and the disconnect between that interest and the justifications behind the automobile exception, we decline Virginia’s invitation to extend the automobile exception to permit a warrantless intrusion on a home or its curtilage[.]

Justice Samuel Alito was the lone dissenter.

…the officer should have been permitted to search the motorcycle visible in the driveway, just as he could have were it parked in a public street. “Officer Rhodes’s brief walk up the driveway impaired no real privacy interests,” he wrote.

Surprising out of Alito; it seems he doesn’t completely understand curtilage or of privacy.  Notwithstanding, I’d further curtail the motor vehicle exception* allowing warrantless searches to bar such from motor vehicles parked on the street in front of the vehicle owner’s residence (or beside it in the case of a corner lot) or parked in an apartment complex’s parking lot near the vehicle owner’s apartment or in the apartment renter’s designated parking slot.

 

*The motor vehicle exception to the requirement for search warrants allows warrantless searches based on a prohibition era ruling that motor vehicles were too mobile and could be moved before a warrant could be obtained.  That ruling was itself erroneous IMNSHO because it assumed that the police were incapable of keeping a motor vehicle under surveillance until the warrant arrived.

The FBI and Backdoors

Posted on by
Reply

Recall that the FBI has long wanted government-accessible backdoors into our personal but encrypted communications.  “Trust us,” FBI leadership assures us, “we wouldn’t misuse that access; we’ll only use for ‘criminal’ investigations, and only with government authorization.”  And they’ve claimed in support of that wide-eyed innocence that they can’t break into over 7,000 cell phones in the pursuit of criminal investigations.  Current FBI Director Christopher Wray even put the number at over 7,700.

However.

On Tuesday, the FBI told PCMag that a programming error resulted in a “significant overcounting” of the encrypted devices. “The FBI is currently conducting an in-depth review of how this over-counting previously occurred,” the agency said in a statement.

PCMag went on to cite the Washington Post as putting the actual number at around 1,200.

Oops, indeed.

According to the agency, starting in April 2016, it began using a new “collection methodology” with how it counted the encrypted devices. But only recently did the FBI become aware of flaws in the methodology, it said, without elaborating.

Right.

“Given the availability of these third-party solutions, we’ve questioned how and why the FBI finds itself thwarted by so many locked phones,” the Electronic Frontier Foundation said in a blog post.

Indeed.  Whether this government agency was being dishonest in its characterization of the encryption “problem,” or it was just being incredibly sloppy in using “collection methodology” that it has so plainly inadequately tested, this incident is just one more reason Government cannot be trusted with back doors into privately encrypted personal correspondence.

A Tenth Circuit Speculator

Posted on by
Reply

The Institute for Justice summarized a 10th Circuit case regarding a car involved in an immediately prior weapons case, its driver, and a weapon thusly:

Aurora, CO, police run tags on car with broken tail light, discover the car was seized three weeks earlier in weapons-possession case and a man (a known gang member) associated with the car was arrested. They pull it over; the man is in it; they frisk him and find a gun. He’s charged with being a felon in possession. Suppress the evidence? No need, says the 10th Circuit. Though he was calm and compliant, officers were justified in patting him down to ensure their safety.
Dissent: The gov’t is going to use this decision to justify frisks in a much broader variety of circumstances than the ones here.

The dissenting judge may well be right, but he’s speculating only.  Treat those speculatedly future cases one by each, as the unique cases they will be, and rule in accordance with the facts of those cases, not the facts of this case.

Selling Out Ukraine

Posted on by
Reply

German Chancellor Angela Merkel met with Russian President Vladimir Putin a few days ago in the Russian city of Sochi, which is next door to Russia-partitioned Georgia and a short Black Sea hop from Russian-occupied Crimea and eastern Ukraine.  While the two talked of many things: of cease fires—and peace keepers—and pipelines—of Iran—and deals—and things—and why the region is boiling hot (they didn’t get to flying pigs), one thing they discussed jumped out at me.  Deutsche Welle cited Merkel as insisting that

…the Minsk accord was the “only basis” to achieve peace in eastern Ukraine….

The Minsk accord (Minsk Protocol) is a 2014 “agreement” among Ukraine, Russia, and a rebel gang calling themselves Donetsk People’s Republic that implemented a cease fire in Ukraine’s Donbass region, comprised of the oblasts Donetsk and Luhansk on Ukraine’s border with Russia.  The accord codified Russia’s occupation of those two oblasts and the resulting partition of Ukraine with the rebel gang fronting for Russia.  The accord carefully did not address Russian-occupied Crimea.

Merkel plainly has walked away from the much prior (1994) Budapest Memorandum on Security Assurances.  This agreement consists of three included agreements that guarantee the territorial and political integrity of Ukraine, Belarus, and Kazakhstan, and it was signed by the US, the UK—and Russia.  The core of the Budapest Memorandum consists of these six guarantees as they pertain to Ukraine:

  1. Respect Ukrainian independence, sovereignty, and the existing borders
  2. Refrain from the threat or use of force against Ukraine
  3. Refrain from using economic pressure on Ukraine in order to influence its politics
  4. Seek immediate UN Security Council action to provide assistance to Ukraine, “if [it] should become a victim of an act of aggression or an object of a threat of aggression in which nuclear weapons are used”
  5. Refrain from the use of nuclear arms against Ukraine
  6. Consult with one another if questions arise regarding these commitments

This is Germany’s sellout of Ukraine.  We need to start correcting our own failure regarding the Budapest Memorandum.  I’ve written elsewhere of the need for a NATO-like mutual defense pact among the US, the Baltic States, Poland, and Ukraine, among others in eastern (and eventually northern) Europe.  It’s time to get a move on.

Congressional Intent

Posted on by
Reply

In a piece centered on Federalism and the Supreme Court’s ruling that Congress cannot require individual States to ban sports gambling, there’s this bit at the end of the article that interests my grasshopper mind.

Supreme Court Justice Clarence Thomas, in concurring, protested the Court’s analysis of Congressional intent.

The Court also determined that PASPA’s [Professional and Amateur Sports Protection Act] prohibition on sports gambling advertising can’t be severed from the law. But as Justice Clarence Thomas noted in his pithy concurrence, the Court’s severability analysis requires courts to make “a nebulous inquiry into hypothetical congressional intent.”

On this, I disagree with Justice Thomas. In Connecticut National Bank v Germain the Supremes held

…that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.

If Congress had intended sports gambling advertising to be severable, it would have said so in PASPA. Congress did not say so; arguing the possibility of severability would be Thomas’ own inquiry into congressional intent.