Archive for the ‘fourth amendment’ Category

Privacy in the Modern Age, Part 2

Privacy In The Modern Age, Part 2   <– PDF

2          Wrong Attitudes Regarding Privacy

There are some very dangerous popular misconceptions that have served to weaken our overall privacy.  This essay will address four of them, and how, if you’ve fallen prey to one of these, you should consider re-calibrating your thinking on the subject.

I suppose the most common one is “I have nothing to hide, so why should I care what anyone knows?”  That is patently false.  As a matter of principle, you, the citizen, have everything to hide on the grounds that the details of your life are no one else’s business.  They are by definition, only your business, and only those close to you whom you trust to know.  Knowledge regarding you and your family depends on their “need to know”, and you decide who “needs to know”.  Mark “Junior High” Zuckerberg does not need to know how many children you have, or if any of them are toddlers.  Your local sheriff does not need to know where you work or where you live or your occupation.  The members of your local government do not need to know how anything about your income, or how you vote, or if you vote.  Jeff “I own that too” Bezos does not need to know what kind of car you drive, or your opinion on the man-made climate change hoax, or any other opinions you hold.  You business is yours, and theirs is theirs, and the two should never meet.  What do you know about Mark “Junior High” Zuckerberg, or Jeff “I own that too” Bezos, or your local sheriff, or your mayor?  You know virtually nothing about them, other than what they choose to release to the public.  Note the key words: “what they choose to release to the public”.  You should apply the same criteria to yourself and your family: you choose, not them.

Another common falsehood is “I am not a crook, so it doesn’t matter who knows what.”  There are two problems with this one.  First is, given the large mass of confusing and contradictory legislation, court rulings, and bureaucratic edicts, how do you know you’re not a crook?  The truth is, in this modern age, you are a crook if any penny-ante bureaucrat decides to make you a crook, even if you haven’t actually violated any law.  It is not even necessary to charge you with anything; all they have to do is put you “under investigation”, or spread a few rumors.  Enough innocuous information about you can be pieced together in such a way that you appear to be a crook.  The second problem is that even innocuous information can make you a target for blackmail, if it is construed “in the right way”.  Remember, the government already assumes you are a crook, since you are required to sign your tax forms under penalty of perjury.

The third common fallacy is “no one is interested in me”.  The fact is that everyone is interested in you, albeit for different reasons.  The commercial world is interested so they can send you advertisements and sell your data to other advertisers and “interested parties”, although you do not know who the “interested parties” are.  The government is interested because it wants to know who holds what political opinions, which is to say, whether you are a friend or an enemy of the political establishment.  It is worse than that: now that “political correctness” has reached extreme levels, one post on an obscure social media site can get you fired from your job, and it is possible that you could have difficulty finding work.  You can be denied the ability to provide for your family because some screeching moron with political or media connections was offended (or pretends to be offended) by some comment you made.  The lesson here is: if you tell them something, the commercial world will try to sell you something, and the political world will try to regulate you.  Both are equally bad because you, the citizen, have allowed yourself to become a commodity to be used and abused as the powerful see fit.  Since you are the commodity, there is always an interest in you.

The last one I’ll consider is “the government cannot do anything they want.”  How do you know?  Can your mayor call the IRS and get copies of all your tax returns?  Can the local school board access a database and find out if you are opposed to “Core Math”?  There is no way for us, the common citizen, to know if any of these are happening.  Certainly government employees are not going to admit to doing anything that violates their oaths, or that openly violates your rights.  But it would be short-sighted to assume that governments and corporations are not cooperating; a government can hire a private corporation to do indirectly what the government cannot do directly.  No one is going to tell us anything about what the government and corporations are actually doing with any data about us.  There is no reason to assume that corporations or the government are keeping their “privacy” promises.  Therefore, there is no reason for you, the citizen, to tell them anything of value.

There are no doubt a great many other common fallacies about privacy, but I think you get the idea.  Privacy is exactly what it says it means: it is private until you say otherwise.

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Privacy in the Modern Age, Part 1

PrivacyInTheModernAge_1   <– PDF

Introduction

The Fourth Amendment to the U. S. Constitution reads:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This particular Amendment was to ensure that one abuse, among others, that had been inflicted the colonists by the British government could not be repeated under the Constitution: the infamous ‘writ of assistance’.  The historian John Fiske [1] gives a summary:

“In 1761, it was decided to enforce the Navigation Act, and one of the revenue officers at Boston applied to the superior court for a “writ of assistance”, or general search warrant, to enable him to enter private houses and search for smuggled goods, but without specifying either houses or goods.  Such general warrants had been allowed by a statute of the bad reign of Charles II, and a statute of William III, in general terms, had been granted to revenue officers in America like powers to those they possessed in England.  But James Otis showed that the issue of such writs was contrary to the whole spirit of the British constitution.  To issue such universal warrants allowing the menials of the custom-house, on mere suspicion, and perhaps from motives of personal enmity, to invade the home of any citizen, without being held responsible for any rudeness they might commit there, – such he said, was ‘a kind of power, the exercise of which cost one king of England his head and another his throne;’ and he plainly declared that even an act of Parliament which should sanction so gross an infringement of the immemorial rights of Englishmen would be treated as null and void.”

James Otis was a Boston lawyer, and one of the principal proponents of independence in the 1760’s.  He was in declining mental health and suffered permanent injury in 1769 after being severely beaten by a British customs officer.  However, he was able to sneak out of his house and fought against the British in the Battle of Bunker Hill (17 Jun 1775), escaping afterwards back to his house.

The Fourth Amendment requires any agent of the government to apply for a warrant, to be sworn under oath before a judge, describing what is to be searched and what evidence they have already obtained that would justify such a search.  It has always been a feature of American justice, at least at the local level, with two exceptions: it never applied to slaves, and it did not apply to free black people in the South during the Jim Crow era (1890’s to about the 1940’s).  The Democratic Party was an advocate for slavery and later was responsible for Jim Crow.

But we now have three problems not contemplated by the authors of the Constitution.  First is the growth of electronic technology; secondly, the power of corporations that control the electronics technology; and third, the union of those corporations and the government.  At this point in our history, the average American, unless he practices good electronic security, has virtually no privacy at all.  The following essays will describe these risks, and what you, the average American, can do to protect your privacy in the digital environment that we now wallow in.

But before we get to details, let’s first establish how the Fourth Amendment should be interpreted, and by extension, how we should think of individual privacy.  To me it means different things in the three cases I’ve mentioned.  Toward the government alone (case 1) it means, “My affairs are none of your business unless you have prior evidence that justifies investigation.”  Toward corporations, and the cooperation between corporations and the government (cases 2 and 3) it means, “My affairs are none of your business.”

There is one cardinal rule that we should remember in regard to privacy in the electronic environment: if a violation of your privacy is possible, it is being done unless the government and corporations prove under oath that it is not.  Even then, take their claims with a grain of salt.

Reference

[1] John Fiske, John Fiske’s Historical Writings, NY: Houghton, Mifflin and Company, 1896, Vol. 10, p. 14.  It is the same as Fiske’s original The American Revolution, 1891, Vol. 1, p. 14.

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Real World Graduation, Question 97: Domestic Spying

RealWorldGraduation_Question_97_Domestic_Spying   <– PDF

Consider the following sequence of events. On 11 Sep 2001, adherents of Osama bin Laden hijacked U. S. airliners and flew them into the World Trade Center Buildings in New York and the Pentagon in Washington DC.  All of the following information was taken from newspaper and magazine articles, but, for the sake of argument, assume all of what follows is true.  Once the federal government figured out who was behind the attacks, it engaged in a series of actions to combat terrorism.  One of those actions was that President George W. Bush, in 2002, signed a secret directive authorizing the National Security Agency (NSA) to conduct email searches and make recordings of phone calls within the U. S. without a warrant, so long as one end of the party was overseas.  Normally a warrant to conduct this kind of surveillance is required under the 1978 Federal Intelligence Surveillance Act (FISA).  Some government officials were concerned about the legality of the program (since it was authorized by presidential order instead of by Congress), and secretly provided information about the secret program to reporters working for the New York Times.  Because of the sensitive nature of the program, the New York Times agreed not to disclose its sources.  The administration learned about the disclosure of the program, and asked the New York Times not to publish the story.  The New York Times held off for about a year, but then went public with the information on 16 Dec 2005 [1].  The revelation led to debates in Congress, and a law was subsequently passed in Aug 2007 allowing the NSA to continue to perform this function.  Prior to the passage of the new law, the President withdrew the authorization for it, according to a letter by Attorney General Alberto Gonzales, 17 Jan 2007.  It was later learned that Thomas M. Tamm, an employee of the Justice Department, was one of the people who revealed the NSA program to the New York Times reporters in 2004, although he was not directly involved in its execution (he was never “read into” the NSA program) [2].  Apparently he learned about it indirectly while working on unrelated programs in and around the same offices where the NSA surveillance was being conducted.  Mr. Tamm subsequently lost his job at the Justice Department, apparently due to an unrelated issue.  Although his house was searched, Mr. Tamm has not been arrested.  Assuming all of the preceding is true, what is likely to happen next?

a) James Risen and Eric Lichtblau, the reporters for the New York Times, will be arrested and tried for endangering national security.

b) The New York Times will be shut down for publishing a story that endangered national security.

c) Michael Isikoff, the columnist for Newsweek, who revealed the identity of the leaker, will be prosecuted for interfering in an investigation.

d) Thomas M. Tamm, the person who leaked the program to the New York Times, will be prosecuted for revealing the classified methods used by NSA to conduct domestic surveillance.

e) Both a) and d).

[1]        James Risen and Eric Lichtblau, “Bush Lets U.S. Spy on Callers Without Warrants”, The New York Times, 16 Dec 2005.  See http://www.nytimes.com/2005/12/16/politics/16program.html?_r=1

[2]        Michael Isikoff, “The Fed Who Blew the Whistle”; Newsweek, 13 Dec 2008.  See http://www.newsweek.com/id/174601

(The answer is on p. 2 of the PDF.)

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Real World Graduation: Question 29

RealWorldGraduation_Question_29   <– PDF

Article 2, Section 1 of the U. S. Constitution requires the President to take the following oath of office:

“I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States”.

An integral part of preserving, protecting, and defending the Constitution is preserving the rights of the people. The rights of individuals specifically called out in the Constitution and its first ten amendments are:

1) Habeas corpus (right to challenge detainment)

2) Freedom of speech

3) Freedom of the press

4) Freedom of religion

5) Freedom to keep and bear arms

6) Freedom from bearing the expense of quartering soldiers

7) Freedom from arbitrary search and seizure (searches require warrants signed by a judge, with testimony under oath by the officials seeking the warrant)

8) Federal indictment only by grand jury

9) No double jeopardy (a person can only be tried once for the same crime)

10) Immunity from self-incrimination

11) Due process of law

12) Compensation for property allocated for public use

13) Speedy and public trial

14) Cross-examination of witnesses in criminal trials

15) Counsel for defense in criminal trials

16) Trial by jury

17) Facts found by a jury not reviewable by a court

18) Prohibition of excessive bail

19) Prohibition of excessive fines

20) Prohibition of cruel and unusual punishments.

Also, rights not specifically mentioned are reserved to the people (individuals) or to the states. Based on your understanding of American history, which three would you rate as the worst Presidents with regard to preserving the rights of the people?  The letter after their name indicates their part affiliation (F refers to Federalist, R indicates Republican, N indicates None, D indicates Democrat, D-R indicates Democrat-Republican, which later became the Democratic Party in the 1820’s).

a) Alexander Hamilton (F), Aaron Burr (F), and Benjamin Franklin (F)

b) Richard M. Nixon (R), Gerald R. Ford (R), and George Washington (N)

c) George H. W. Bush (41) (R), James E. Carter (D), and Thomas Jefferson (D-R)

d) Walter Mondale (D), Barry Goldwater (R), and Alf Landon (R)

e) Three among those listed in groups b) and c)

(The answer is on p. 2 of the PDF.)

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Posted in Benjamin Franklin, Bill of Rights, critical thinking, fifth amendment, First Amendment, fourth amendment, government powers, habeas corpus, Real World Graduation, Second Amendment, sixth amendment, U. S. Constitution | No Comments »