Tag Archives: freedom

Don’t Let the Door

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…hit you in the fanny on the way out.

A University of Texas Dean [Fritz Steiner, Dean of the Texas School of Architecture] said Thursday he’s leaving the school to pursue a different job in large part because of the new Texas law that will allow concealed firearms in public college classrooms.

And

Steiner said he’s not anti-guns, but doesn’t want them in the halls of higher education. Texas faculty have worried allowing guns could have a chilling effect on academic freedom and frank discussions in classrooms.

Because he and his special snowflakes are zealously opposed to opposing, even merely differing, opinions, and they project their own response techniques to disagreements onto others. After all, academic freedom and frank discussions mean “do it my way” and “think like I do.” Just look at all the faculty-supported “safe spaces” and “free speech zones” Academia have sprouted all over our colleges and universities. See, also, the Melissa Clicks of academe. That Click ultimately was fired for her abuses is newsworthy only because of the unusualness of such abuses being recognized.

A Thought on “Citizen”

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Mark Lilla’s essay in the New York Review of Books regarding France’s response to the series of Islamic terrorist attacks against the Republic carried out on Metropolitan French soil has sparked a thought in me regarding the nature of “citizen” for a nation. The passage in question is this [via Power Line; the full essay is behind the NYRB‘s paywall]:

The Hollande government responded in kind [to public Islamist threats]…. Most controversially he called for binationals convicted of terrorist crimes to be stripped of French nationality, a proposal that runs up against current constitutional and European jurisprudence but has been Hollande’s most popular move since being elected.

Withdraw the terrorist’s citizenship and throw him out of the country. What’s wrong with that? International law makes it illegal to create a stateless person, hence the Hollande administration’s decision to limit withdrawal of French citizenship to those already possessing another nation’s citizenship status also—a binational.

American citizenship under existing domestic statutes and case law also cannot be withdrawn; see, for instance, Afroyim v Rusk, a 1967 Supreme Court ruling which denied the ability of the government to rescind the citizenship of an established citizen. There is a constitutional question attached.

However. The underlying philosophy of our political nation, our concept of social compact, is very much a Lockean philosophy, and our Constitution is steeped in that view: a consensual government, yes, but also very much a matter of discriminating between those within our social compact and abiding by our compact’s rules—those who are members of the compact and those only resident here with the compact’s permission (and by whose residence have agreed to abide by our compact’s rules)—and those outside out social compact, whether physically or otherwise.

Herein lies my thought. An earlier definition of “outlaw” is in Locke’s Second Treatise of Government: a man who is within a social compact but who by his criminal actions has placed himself outside the compact. In Locke’s view, any criminal act, whether directed particularly against an individual member of the compact or against the compact as an entity, was an attack on the compact as a whole; hence the criminal’s outlaw status. That outlaw status had an important outcome apart from his simple eligibility for suitable punishment for his actions: outlaw status also placed the criminal outside the protections of the social compact; the outlaw had no recourse to the compact’s laws or courts or anything else.

We Americans, though, have parsed criminal acts into two key categories, attacks against individuals and attacks against government or society. Only criminality directed at our society or government are attacks against our compact as a whole. Clearly, though, terrorist attacks against Americans—individually or in groups—are attacks against our society, are attacks against our social compact. American citizens who are terrorists, by their actions, place themselves outside our social compact and thereby lose the protections of our compact.

We should acknowledge that wholly voluntary self-placement: withdraw citizenship from such an erstwhile American in addition to the existing sanctions against his terrorism. After the terrorist has served out that sanction, he should be ejected from our nation.

Obviously, there are some mechanics that would need to be grunted through to enact this sort of thing, not least of which is that constitutionality question. But that doesn’t refute the principle; it’s only a barrier on the path to be corrected and overcome. One expression of the barrier, from Afroyim v Rusk, was expressed by Justice Hugo Black, writing for the Court, said in part

In our country the people are sovereign and the Government cannot sever its relationship to the people by taking away their citizenship.

Certainly. But We the People can instruct our employee government to enact a law that severs our relationship with an outlaw by taking away his citizenship, his right to be among us and to enjoy the protections of our compact. If it’s cleaner for us to make our instruction via the Constitution’s Article V, then so be it. Again, though, the means is a speed bump, not an impenetrable barrier.

International law? That enjoins against creating a stateless person. It does not, though, obligate us in any way to find this outlaw a place to be somewhere else before we acknowledge his decision to stop being a member of our compact. In addition to enjoining us, it obligates other nations to find a place within them for him to be. That’s a moral obligation, to be sure, and not a legal one. Thus, international law needs to be corrected and updated to deal with terrorists as outlaws. Or we need to withdraw from this law.

Government Arrogance Should Disqualify It

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…in its case trying to force Apple to disable encryption on its iPhones.

Rather than assist the effort to fully investigate a deadly terrorist attack by obeying this Court’s Order of February 16, 2016, Apple has responded by publicly repudiating that Order…Apple has attempted to design and market its products to allow technology, rather than the law, to control access to data which has been found by this Court to be warranted for an important investigation.

Never mind that under free American jurisprudence, Apple is allowed to appeal the lower court’s order to a higher court and to seek relief from complying—irreversibly, mind you—with the lower court’s order until Apple’s appeals are adjudicated. No: Apple disobeyed the high and mighty and must be punished for its impertinence.

Never mind that Apple is rightfully concerned with the sanctity of its customers’ privacy and with the ability of Americans generally to be free of the prying eyes of government. Apple disagrees with the awesome personages of FBI agents, and so it cannot possibly be behaving honestly.

DoJ’s lawyers are projecting their own failings.

Where Apple designed its software and that design interferes with the execution of search warrants, where it manufactured and sold a phone used by an ISIL-inspired terrorist, where it owns and licensed the software used to further the criminal enterprise, where it retains exclusive control over the source code necessary to modify and install the software, and where that very software now must be used to enable the search ordered by the warrant, compulsion of Apple is permissible under New York Telephone Co.

This is plainly, dishonestly specious. Apple designed its software and…manufactured and sold a phone used by…millions of American citizens, where it owns and licensed the software used to further the private affairs of American citizens…. It is plain from the careful construction of the government’s argument that it intends to expand it to pry into all of our private affairs whenever it takes a notion to.

…the Order will facilitate only the FBI’s efforts to search the phone; it does not require Apple to conduct the search or access any content on the phone. Nor is compliance with the Order a threat to other users of Apple products. Apple may maintain custody of the software, destroy it after its purpose under the Order has been served, refuse to disseminate it outside of Apple, and make clear to the world that it does not apply to other devices or users without lawful court orders….

This is deliberately disingenuous. No one is arguing that Apple is being required to conduct the government’s search. Of course, compliance with the order is a threat to other users of Apple products: the encryption, once broken or a way once found to bypass entry controls, is permanently and everywhere defeated. The FBI’s IT personnel know this. So do the government’s NSA personnel. Neither can Apple make clear to the world that it does not apply to other devices or users without those personnel making such statements being guilty of lying. Breaking an encryption algorithm or producing a way past its entry controls permanently and everywhere destroys the security of that algorithm. Without lawful court orders is just as disingenuous, as the second quote above demonstrates.

Apple is not above the law in that regard….

[M]arketing or general policy concerns are not legally cognizable objections to the Order…. This Court should not entertain an argument that fulfilling basic civic responsibilities of any American citizen or company—complying with a lawful court order—could be obviated because that company prefers to market itself as providing privacy protections….

Neither is the government above the law, and these government lawyers know full well that Apple is engaging in purely legal, solely legal, behavior in appealing the court’s order. That this is inconvenient to the government’s lawyers is their problem. Furthermore, here is the government’s lawyers repeating their reprehensible, not to say unethical, claims that because Apple is so impertinent as to dispute with them, Apple cannot possibly be acting entirely honorably and entirely out of valid concerns for Americans’ privacy—especially when that privacy is at risk of so blatantly arrogant and overreaching a government as this one is presenting itself to be.

The government’s case should be dismissed in its entirety and with prejudice over this arrogance.

Security Tradeoffs

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Here’s one.

A federal judge has ordered Apple Inc to provide software to the Justice Department to help it unlock a phone used by one of the suspects in the San Bernardino, CA, terror attack because investigators suspect the device may hold critical details of the plotting behind the mass murder.

The government’s justification is this:

Law-enforcement agencies say companies such as Apple make it harder to solve crimes including terrorist attacks, child abuse and murder by putting security measures on phones that make it difficult or impossible for investigators to open them and examine data inside.

That’s an entirely valid concern.

The problem, though, is that forcing a back door into citizens’ communications encryption utterly destroys citizens’ privacy and security. There’s nothing to prevent Government from abusing that back door to engage in snooping on general principles and then actively and maliciously snooping in order to preserve the power of the men then in Government. The lawlessness of the present administration demonstrates that progression.

Of immediate effect, though, is that a backdoor for Government is a backdoor for hackers, whether these be script kiddies, terrorist hackers, financial or identity theft hackers, or any other sort.

The privacy and the security of our private identities, of our finances, of our health records, of any aspect of our lives we find useful to protect from prying eyes are critical to our ability to engage with our neighbors and our businesses and our government free from threats or attack.

The privacy of our communications, the security of our speech, must absolutely be preserved. There is no security at all without our individual liberties, of which speech is one, held secure.

“Law-enforcement agencies” and this Federal judge know this full well. And they know full well the truth of Apple CEO Tim Cook’s statement in his letter posted to Apple’s Web site:

We can find no precedent for an American company being forced to expose its customers to a greater risk of attack.

Overbearing, or Justice-Seeking?

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The Federal Department of Justice thinks Ferguson, MO, should make changes in the way it polices itself, and in the main, Ferguson agreed. That’s where the rub is, that “in the main” part.

An agreement was tentatively negotiated between Ferguson and DoJ on what those changes should be, but when it got to the City Council, the Council wanted some changes before they’d sign off. Vanita Gupta, Acting Assistant Attorney General for the Civil Rights Division, said that DoJ would take

necessary legal actions to ensure that Ferguson’s policing and court practices comply with the Constitution and relevant federal laws.

The Ferguson City Council has attempted to unilaterally amend the negotiated agreement.

Of course, Gupta knows better. Nothing was agreed until the city actually agreed—which is what the City Council was discussing when, on its review of the offered settlement, it decided some changes were desirable. The Council, for instance, is concerned about whether it can afford the settlement. Among other things:

The council also wants Justice to cap federal monitoring fees the city must pay at $1 million….

Another concern is how this settlement would affect adjacent government entities. One change requested by the Council was an explicit statement that

the agreement will not apply to any other governmental entity that might take over duties currently provided by Ferguson. That means, for example, that St Louis County would not be beholden to the agreement if it takes over policing in Ferguson.

Because, for instance,

St Louis County police spokesman Brian Schellman said if the county were ever asked to take over policing in Ferguson, “we would consider the implications of the consent decree before entering into such an agreement.”

DoJ’s response? Since you didn’t sit down, shut up, and do what you were told to do, we’re suing you to implement our agreement diktat. The suit was filed the day after the Council voted to ask for these few amendments. No negotiation. Suit.

Attorney General Loretta Lynch said Ferguson’s decision to reject the deal left the Justice Department no choice except to file a civil-rights lawsuit.

Of course, Lynch knows better, too. The Council’s request for changes is not at all a rejection of the deal. In the first place, no deal can exist until it’s agreed by both parties, not dictated by one to the other. In the second place, a request for changes is an implicit agreement to the basic offer, else there’d be nothing to change.

Then Lynch made this entirely disingenuous statement:

The residents of Ferguson have waited nearly a year for the city to adopt an agreement that would protect their rights and keep them safe. … They have waited decades for justice. They should not be forced to wait any longer.

And yet, rather than negotiating these few changes to a reasonably quick resolution, Lynch now seeks years more delay while her DoJ sues to impose her will. This reaction is nothing more than an egotistical, self-aggrandizing move by Lynch and Gupta. Worse, it represents, regardless of the merits of the tentative agreement or of the requested changes, nothing but an overbearing power grab by the Federal government.