Tag Archives: freedom

The Government and Privacy

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The government is continuing to misunderstand the import of the 4th Amendment’s stricture regarding searches, the right of the people to be secure in their persons, houses, papers, and effects and especially Warrants…particularly describing the place to be searched, and the persons or things to be seized, and of the major purpose of our Constitution generally.

Even accepting things like Edward Snowden’s leaks and the NSA’s overbroad and non-particular descriptions of things for which to be “searched” in our cell phone metadata as being aberrations, the existence of the aberration demonstrates the fragility of government handling of that much searching capacity.

I wrote nearby about the FBI’s dangerous zeal in demanding that cell phone operating system software be made vulnerable to government-desired searches. Following is another demonstration of the government’s misunderstanding.

“This sort of encryption creates a virtual sanctuary for criminals who are very determined and smart,” warned Ron Hosko, the former head of the FBI’s criminal division….

So does the 2nd Amendment’s right to keep and bear arms give criminals who are very determined and smart access to tools for supporting their efforts. So does the 1st Amendment’s acknowledgment of a range of freedoms give criminals who are very determined and smart access to tools for supporting their efforts.

That’s a risk we members of our social compact have agreed to accept in order to have a government with the strength otherwise to protect and enforce those freedoms. We’ve done nothing to alter those terms of our compact—our Constitution—since then.

Our Constitution was written the way it was, in fact, to limit our government’s powers as far as we could and still leave it the necessary strength with which to effect those protections. The powers of our government are, by design, few and defined. Our Constitution was, in fact, written to restrain our government, and to carry out that restraint before our government could act, not to attempt to redress a situation after government has acted. This relationship between us compact members, us citizens, and our government, furthermore, is neither symmetrical nor reciprocal.

We restrain our government before the fact; it does not engage in prior restraint of us. Yet, this government demand for ready and broad, non-particular access to the contents of our communications—the contents of our private speech—through a third party and not through us is exactly that attempt by our government to priorly restrain us, if only through the chilling of our speech through government snooping with its implied threat of subsequent harassment. Think IRS. Think Federal whistleblower treatment.

This final thought:

“I don’t think the legislative branch or the judicial branch can sit idly by while destruction comes,” said Hosko….

Neither can We the People sit idly by while the destruction of our inalienable rights comes.

Privacy and the Government

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This time, as represented by the FBI.

The head of the Federal Bureau of Investigation urged Silicon Valley Thursday to reverse course on encrypting phone data, suggesting the pendulum on privacy issues “has swung too far” against the government in the wake of revelations by former National Security Agency contractor Edward Snowden.

No. It hasn’t swung far enough, as too many judges’ attitudes illustrate.

FBI Director James Comey added,

We also need a legislative and regulatory fix.

Again, no. We have too many laws on the books already; the government, including the FBI, aren’t capable of enforcing those existing. And this elides the premise that the government has made illegal and has outright criminalized too many things. Beyond that, we have far too many regulations already, every one of them written by Federal agencies and Cabinet departments that are only tenuously accountable to us citizens.

And

Mr. Comey’s speech [at the Brookings Institution] was another indication of how far apart the two sides remain. He denied they wanted a back door, saying that using a warrant to gather evidence is the equivalent of walking through the front door.

Say that’s true about the current government. There’s no guarantee any future administration would be as restrained with those “legislative and regulatory” fixes. Just look at the out of control regulation writing that’s already been going on for an example of how a tool, originally restrained in its use, gets more and more abusively used over time.

Moreover, beyond individual security and privacy, there’s this national security question, raised by the ACLU’s Christopher Soghoian:

…weakening the security of systems to enable law enforcement access also makes them far more vulnerable to compromise by foreign governments and hackers. If anything, we should be doing more to secure our data.

In Which the Florida Supreme Court Gets One Right

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Police in Florida aren’t allowed to use a cellphone to track someone’s movements according to a sweeping new ruling from the Florida Supreme Court.

The court by a 5-2 vote ruled Thursday that authorities in Broward County had no right to stop and arrest Shawn Tracey for possession of more than 400 grams of cocaine.

The police had a warrant to tap his cell phone calls, but that warrant didn’t include authorization to use his cell phone to track him.

This is entirely appropriate. If the police want to invade a citizen’s privacy, they need either to convince a court that they have probable cause for that, or they need to actually and overtly invade: in the present context, to assign a cop to follow him around.

One of the two dissenting justices, Charles Canady, though, misunderstands the concept of privacy. He cited the US 5th Circuit as follows:

Because a cell phone user makes a choice to get a phone, to select a particular service provider, and to make a call, and because he knows that the call conveys cell site information,…he voluntarily conveys his cell site data each time he makes a call.

Canady added under his own thinking,

Given the known realities of how cell phones operate—realities understood and accepted by all but the most unaware—…cell phone users have neither a subjective expectation of privacy nor an objectively reasonable expectation of privacy regarding the cell site information generated by their cell phones.

Of course the cell phone user does, on both counts. Notice, as Canady apparently does not, that the voluntary conveyance of the information is to a private enterprise, not to a government entity. We citizens can, and we do, have a very strong expectation of privacy regarding any information we surrender to a private entity as a necessary requirement for that entity to provide the service for which we’re paying it.

Notice further, that the caller expects that private enterprise to safeguard our private information, whether it’s surrendered so that the enterprise becomes able to provide the contracted service or whether it’s surrendered more voluntarily as a non-necessary adjunct to that service. This is made clear by the public’s—us people’s—hue and cry over such trackings, by any entity, commercial or otherwise.

If a government entity wants to invade a man’s privacy, it must convince a court of sufficient probable cause as to get a warrant authorizing the invasion. As the police understood in the present case, when they got the warrant to tap Tracey’s cell phone calls—and chose not to get a warrant to collect his location data.

The Court’s ruling, including Canady’s dissent, can be seen here.

A Thought on Disparate Impact

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Disparate impact is the theory that a policy, or standard, or… is inherently racist if it has an outcome that impacts one group of Americans more than it does other groups of Americans, regardless of any racist intent. If the standard simply affects one group more than another, it must be racist (sexist). Let’s take as an example for this article student discipline in our grade schools. Disparate impact says that discipline standards that result in more black students being disciplined than white students must be racist, even if the discipline is meted out to members of both groups for the same misbehavior, with either no exceptions or identical exceptions allowed.

Let’s unroll that a ways.

Why are more black students disciplined than white? Because they misbehave more often.

Well, why do they misbehave more often? One major reason is lack of discipline at home—lack of home bringin’ up in the parlance of my youth. Either these kids don’t know how to behave at school, or they’re used to getting away with misbehavior.

Why is there that lack? A major reason for this is the higher incidence of broken homes—single parents (usually, single mothers)—in black homes than in white homes. Another reason, closely related, is the greater poverty in black homes than in white, which drives and is driven by that single parent status: the (mother) is occupied with trying to bring in enough money to support her family and lacks both time and energy at the end of her day to deal with her children.

Why is there that difference in poverty? Certainly, racism plays a part at this origin of the students’ behavior problems: the black mother is less likely to be able to get a job at all than is the white mother otherwise similarly situated solely because the one is black and the other is white.

But there’s another major source for this origin. Government welfare policies, with their attendant welfare cliffs, both encourage dependency on government (even to the point of eliminating welfare work requirements that had been in place since the early Clinton years) and make it extremely expensive to move up an income ladder that’s based on earned income. This traps welfare recipients in their poverty, which traps those single-parent families in their poverty, which traps those single parents in their time and fatigue cycle, which severely harms those parents’ capacity for teaching their children behavior standards—giving them that home bringin’ up—which leaves those children more likely to misbehave in school, which exposes those children to disciplinary action by the school.

But the Left doesn’t want to address the disparate impact of that origin—their welfare programs. Or acknowledge that what’s being illuminated by disparate impact is not racism or sexism, but an underlying failure of existing policy. Not at all.

And so, not only do we have the disparate impact of government policy, the remaining true racism that interferes with a black mother’s ability to get a job is obscured and made more difficult to address directly.

Hong Kong and Freedom

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The backdrop is this: in the last few days in the Hong Kong district of Mong Kok, there have been violent clashes between peaceful student and other protestors on the one hand and “locals” consisting, allegedly, of older residents and small business owners mixed with members of the triads on the other hand, this mix attacking the protesters. The latter are losing income from their prostitution and drug…enterprises…and they’re upset about it.

My own view is that the residents and business owners are being provoked and the triads winked at by the PRC in the hope of getting sufficient pretext to justify the government’s coming violent crackdown. That’s a separate question, though; what interests me here are the charges being leveled by the current Hong Kong administration against those who were arrested during those weekend clashes.

Hong Kong’s Secretary for Security, Lai Tung-kwok, said that among other charges, those arrested had been charged with unlawful assembly.

How is it possible to unlawfully assemble in a free society?