Different River

”You can never step in the same river twice.” –Heraclitus

September 24, 2008

McCain suspends campaign to return the Senate; Reid says he’s not welcome

Filed under: — Different River @ 5:49 pm

McCain just announced he’s suspending his campaign and returning to
Washington to deal with the financial crisis.

… It has become clear that no consensus has developed to support the Administration’ proposal. ….

Tomorrow morning, I will suspend my campaign and return to Washington after speaking at the Clinton Global Initiative. I have spoken to Senator Obama and informed him of my decision and have asked him to join me.

He’s even stopping his advertising and requesting that Friday’s debate be postponed.

In his usual manner of bipartisanship, Harry Reid told McCain NOT to come back.

September 2, 2008

Sex, Hypocrisy, Bill Clinton, and Sarah Palin

Filed under: — Different River @ 10:00 pm

It seems that everyone on the left — from bloggers to CNN — are going on and on about the “hypocrisy” of Sarah Palin expressing pro-life values while her daughter was, um, … making a pro-life decision. And, advocating pre-marital abstinence, while her daughter was, likely without her knowledge, not acting according to that standard.

These people do not seem to understand the meaning of the word “hypocrisy.”

It is not hypocritical to “go on and on” about pro-life values and then make a pro-life decision. That is called, acting in accordance with your principles. It is called being consistent. It is the opposite of hypocrisy. It would have been hypocritical to do the opposite.

As for abstinence and hypocrisy: Have YOU ever done anything your parents disagreed with? Does that make your parents hypocrites? Or does that just mean you didn’t do what they wanted you to do?

Seriously.

Now, here’s some real hypocrisy:

  1. Liberals claiming that Bill Clinton’s sexual misdeeds were irrelevant to his qualifications, but Sarah Palin’s daughter’s sexual misdeeds — not even hers, but her daughter’s! — are relevant to her qualifications.
  2. Liberals claiming that Bristol Palin’s misdeeds are the public’s business, but that Al Gore III’s drug and drunk driving convictions are his own private business.
  3. The New York Times‘ long record of ignoring John Edwards’ affair and out-of-wedlock child, but running three front-page stories on the same day about Sarah Palin’s daughter’s out-of-wedlock child. So apparently the NYT’s view is that a candidate’s affair is irrelevant to his qualifications for public office, but the candidate’s child’s affair is relevant. Do they really expect us to believe that? Are they discriminating against women, or against Republicans?
  4. Liberals respecting the privacy of Chelsea Clinton, including her dating habits, but plastering the private life of Bristol Palin all over the front pages.
  5. Liberals claiming women should be able to work outside the home when they have small children, that Sarah Palin shouldn’t be VP because she has young children. And of course, they seem to have missed that from the time her first child was born, Mrs. Palin never had a full-time job outside the home until she was elected governor. Which, they are happy to point out when discussing “experience,” was not all that long ago!
  6. Liberals claiming to be against sexism, yet saying that Sarah Palin shouldn’t be VP because she has young children — but it’s OK for Barack Obama to be President even though he has small children. What do that think, that Michelle Obama should be home with the kids? She’s always had a full-time job before, even with young kids.
  7. … And ignoring the fact that when Joe Biden first became a U.S. Senator, Biden was a single father of two children both under age 4.

Note that when the Republicans are involved, the rules get reversed. Who are the hypocrites now?

August 12, 2008

Police to track every car in New York City?

Filed under: — Different River @ 4:24 pm

CBS is reporting that they New York Police Department is planning to use “Radiation Sensors, Surveillance Cameras Used To Screen & Follow Every Vehicle Entering Lower Manhattan.”

They quote a supposedly representative “NYC resident Sam Mauer” as saying, “Good idea I think. Anything that makes the city safer is a very good idea.”

Well, yes.

But would someone please explain to me exactly how this is going to make the city safer?

If they don’t have a list of terrorists’ cars, how are they going to use this system to stop anything? And if they do have a list of terrorists’ cars, why waste the time and resources to track all the other cars?

And in any case, how is simply “tracking” cars going to stop any terrorist attacks? If they actually have a list of terrorists’ cars, why not stop them at the entry points, instead of tracking them all over the place — perhaps watching as they do their vile deeds, without bothering to stop them?

It seems to me that there is not only a massive invasion of privacy, but no corresponding benefit in terms of safety or security.

Big Sibling is Watching You.

December 20, 2007

Use a cellphone, Go to jail

Filed under: — Different River @ 2:50 pm

New guidelines from British prosecutors:

Motorists caught using a hand-held mobile phone while driving could be jailed for two years under tough new guidelines issued today by prosecutors.

At least they’re not being completely inconsistent:

Drivers who adjust sat-navs, tinker with MP3 music players such as iPods or send text messages at the wheel could also face prison sentences.

Or capricious:

Prosecutions will be brought if by using the equipment a motorist is judged to have posed a danger to other drivers, such as causing another car to swerve.

On the other hand, if you pose a danger to other drives by being stupid or incompetent or daydreaming, that’s perfectly OK. It’s only if you use a device to accomplish the distreaction that you risk jail.

But don’t worry, at least they won’t print your picture:

When a murderer escaped from a New Brunswick [Canada] prison on Thursday, officials refused to release his photograph, citing departmental privacy policy. … Under its privacy rules, a photo of a convict cannot be released unless the inmate gives permission and signs a release form …

Next time, make him sign the form before he escapes!

September 5, 2006

Google Is Listening To You

Filed under: — Different River @ 2:17 am

I remember the first time I saw a computer with a microphone attached to the monitor — it was 1991 or 1992, and it was a brand-new Mac on the department secretary’s desk at a major university. I asked her what she used it for, and she said, “I don’t know how to use it yet — it came with the new computer.” I was immediately intrigued and a bit alarmed — this was in the days when the internet was ubiquitous on university campuses, but virtually unheard-of by the general public. And computer security was very rudimentary. My first thought — literally, my first thought — was that somebody, somehow, could probably use that microphone to eavesdrop on conversations in the office.

And now, 15 years later, Google has plans to do just that.

The Register is reporting that Google is going to deploy software — “sooner rather than later” — to listen in on users, analyze the sounds in their environment, and serve up appropriate advertisements:

The idea is to use the existing PC microphone to listen to whatever is heard in the background, be it music, your phone going off or the TV turned down. The PC then identifies it, using fingerprinting, and then shows you relevant content, whether that’s adverts or search results, or a chat room on the subject.

And, of course, we wouldn’t put it past Google to store that information away, along with the search terms it keeps that you’ve used, and the web pages you have visited, to help it create a personalised profile that feeds you just the right kind of adverts/content. And given that it is trying to develop alternative approaches to TV advertising, it could go the extra step and help send “content relevant” advertising to your TV as well.

Now a lot of people find using personal information to deliver ads offensive to their privacy. I am not really scared of ads, but I’m scared of other uses the same technology could be applied to. As The Register points out:

Pretty soon the security industry is going to find a way to hijack the Google feed and use it for full on espionage.

And:

Google says that its fingerprinting technology makes it impossible for the company (or anyone else) to eavesdrop on other sounds in the room [besides TV], such as personal conversations, because the conversion to a fingerprint is made on the PC, and a fingerprint can’t be reversed, as it’s only an identity.

This is complete baloney. Sure, maybe the currently-proposed version just listens for TV and just sends information about what show is on, but that doesn’t mean someone else — at Google or otherwise — couldn’t use the technique to capture the actual audio content, or even an automated transcript of personal conversations. With sufficient data, they could even use audio “fingerprinting” to determine who’s talking — even if they aren’t using the computer.

Moral of the story: Unplug your computer’s microphone.

Plug it in only when you need it.

That may be never. Personally, I’ve been waiting 15 years for an actually useful purpose for the PC microphone. The potential seems endless — Internet telephony, voice chat — even encrypted voice chat, voice recognition instead of typing, voice annotations on documents, etc. But it never seems to pan out. In all that time, I’ve known only one person who ever had a use for that, and it was voice recognition instead of typing — because she had a wrist-pain problem. The system was OK, but it wasn’t good enough for her to abandon typing when her wrist pain wasn’t flaring up, and it wasn’t good enough to capture significant market share among people without severe wrist pain.

I don’t know, maybe the rest of you all use voice IM, and I’m just behind the times — but if you do that, unplug your microphone when you’re not using it.

And be careful.

Big Sibling is listening to you.

July 14, 2006

Intolerance in Provincetown

Filed under: — Different River @ 5:09 pm

Adrienne P. Samuels of the Boston Globe reports:

Police say they logged numerous complaints of straight people being called “breeders” by gays over the July Fourth holiday weekend. Jamaican workers reported being the target of racial slurs. And a woman was verbally accosted after signing a petition that opposed same-sex marriage, they said.

The town, which prizes its reputation for openness and tolerance, is taking the concerns seriously, though police say they do not consider the incidents hate crimes.

(… as they no doubt would if the roles were reversed.)

Winsome Karr, 45, originally from Jamaica, has worked in town since 2002. Lately, she said, the off-color comments stem from gay visitors who mistakenly believe that all Jamaicans share the views of an island religious sect that disagrees with homosexuality.

A group that supports gay marriage, knowthyneighbor, has created a website displaying the names of more than 100,000 signers of a petition that calls for the state Constitution to be amended to prohibit same-sex marriage.

Knowthyneighbor’s tactics are controversial, with critics alleging that knowthyneighbor is making the names of same-sex marriage opponents public in an effort to expose or intimidate them. The group’s founders say they are simply promoting civic discourse.

The names of 43 Provincetown residents are listed on the website. Most of the petition signers attend St. Peter the Apostle Catholic Church, which serves the Portuguese community and others in town.

Does this remind anyone of that list of abortionists somebody once posted? That led to a federal investigation. Anyone see that happening here?

June 20, 2006

Big Sibling is Watching You

Filed under: — Different River @ 2:26 pm

This is the second article I’ve seen on this in the past couple of weeks:

The future of law enforcement was launched into the smoggy Los Angeles skies at the weekend in the form of a drone aircraft intended to bring spy-in-the-sky technology to urban policing.

The unmanned aerial vehicle, called the SkySeer, looks like a remote-controlled toy and fits into a shoulder bag. In the air, the craft is guided by global positioning system coordinates, and a camera fixed to the underside sends video to a laptop command station.

A prototype is being tested by the LA county sheriff’s department, which says the SkySeer will accomplish tasks too dangerous for officers, and free helicopters for other missions. “This technology could be used to find missing children, search for lost hikers or survey a fire zone,” said Commander Sid Heal, head of the sheriff’s department technology exploration project. “The plane is virtually silent and invisible.”

The SkySeer, which has low-light and infrared capabilities and can fly at speeds of up to 30mph, would also be able to spot burglary suspects.

“A helicopter can be seen and heard and one can make behaviour choices based on that,” said Beth Givens of the Privacy Rights Clearinghouse. “Do we really want to live in a society where our backyard barbecues will be open to police scrutiny?”

Police say the concerns are unwarranted because everybody is already under surveillance.

“You shouldn’t be worried about being spied on by your government,” said Commander Heal. “These days you can’t go anywhere without a camera watching you, whether you’re in a grocery store or walking down the street.”

That’s supposed to make us feel better?

(By the way: If this won’t intrude our privacy any more than what they’ve got already, why do they need it?)

March 29, 2006

Hollywood Ethics

Filed under: — Different River @ 2:31 pm

Sharon Stone discourses on the “need” to go behind mothers’ backs to teach their daughters (how) to submit to sexually aggressive males.

Unreal.

(Link from Drudge.)

January 6, 2006

Your Phone Records Are For Sale

Filed under: — Different River @ 2:21 pm

And it has nothing to do with the PATRIOT Act, the NSA, or the Bush Administration. According to this article in the Chicago Sun-Times:

The Chicago Police Department is warning officers their cell phone records are available to anyone — for a price. Dozens of online services are selling lists of cell phone calls, raising security concerns among law enforcement and privacy experts.

Criminals can use such records to expose a government informant who regularly calls a law enforcement official.

Suspicious spouses can see if their husband or wife is calling a certain someone a bit too often.

And employers can check whether a worker is regularly calling a psychologist — or a competing company.

“Officers should be aware of this information when giving out their personal cell phone numbers to the general public,” the bulletin said. “Undercover officers should also be aware of this information if they occasionally call personal numbers such as home or the office, from their [undercover] ones.”

I want to know why any undercover officer ever thought doing that was safe. But now, getting the call records is not only possible, but easy — and while too expensive for most people to do it for mere curiousity, it’s cheap enough that most people could afford it if they had a serious reason to want to know:

To test the service, the FBI paid Locatecell.com $160 to buy the records for an agent’s cell phone and received the list within three hours, the police bulletin said.

How well do the services work? The Chicago Sun-Times paid $110 to Locatecell.com to purchase a one-month record of calls for this reporter’s company cell phone. It was as simple as e-mailing the telephone number to the service along with a credit card number. The request was made Friday after the service was closed for the New Year’s holiday.

On Tuesday, when it reopened, Locatecell.com e-mailed a list of 78 telephone numbers this reporter called on his cell phone between Nov. 19 and Dec. 17. The list included calls to law enforcement sources, story subjects and other Sun-Times reporters and editors.

Ernie Rizzo, a Chicago private investigator, said he uses a similar cell phone record service to conduct research for his clients. On Friday, for instance, Rizzo said he ordered the cell phone records of a suburban police chief whose wife suspects he is cheating on her.

“I would say the most powerful investigative tool right now is cell records,” Rizzo said. “I use it a couple times a week. A few hundred bucks a week is well worth the money.”

A glance at their web site shows a list of prices, and guaranteed service in 1-4 business hours for cell phone information (calls, name lookup by number, etc.). They also offer landline information, but they don’t list prices and have a “no information, no charge” guarantee, which implies they can’t always get that information.

I wonder if they have a discount plan for heavy users. Do they call it the “frequent spier” program? :-)

Seriously, though: Would it violate the Fourth Amendment if the government used this service to monitor people’s phone calls? What if the NSA used it to scan the call records for people calling terrorists?

December 22, 2005

It Seems to be Legal

Filed under: — Different River @ 9:00 pm

Lots of folks with the right experience — both Democrats and Republicans — seem to be coming out with convincing arguments that President Bush’s “impeachable” executive order authorizing certain eavesdropping of terrorist suspects and contacts without a court order is in fact perfectly legal.

First John Schmidt, Associate Attorney General in the Clinton Administration, writes:

President Bush’s post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.

In the Supreme Court’s 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president’s authority to take such action in response to threats from abroad.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that “All the … courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence … We take for granted that the president does have that authority.”

In other words, even the court that grants the warrants concedes that in certain situations, the warrants are not needed — and these situations are those under discussion now.

Schmidt also noted, as I did earlier, that Jamie Gorelick, who was Deputy Attorney General in the Clinton Administration, and more recently a member of the “9/11 Commission,” testified before Congress on July 14, 1994:

“The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes, and that the President may, as has been done, delegate this authority to the Attorney General.”

Liberal Law Professor Cass Sunstein of the University of Chicago is not entirely decided, but he seems to think it’s likely the President has the authority to wiretap people against whom he also has the right to use military force. The alternative is truly bizzarre — he can order a terrorist bombed, but can’t listen to his phone calls?

(Libertarian?) Judge Richard Posner, of the U.S. Court of Appeals for the Seventh Circuit (and who also teaches at the University of Chicago Law School) writes in the Washington Post contends that this type of surveillance is not a threat to civil liberties. When a libertarian federal judge is willing to say something like that in public, I think it means he thinks it’s legal, also.

John Hinderaker, also a lawyer, quotes Schmidt, and adds additional case citations to make that case that it’s legal, and takes the New York Times to task for ignoring the relevant court decisions:

This morning, I sent the following email to New York Times reporters Eric Lichtblau and Adam Liptak (other Times reporters who have participated in the NSA stories do not publish their email addresses):

In your reporting in the Times you appear to have tried to create the impression that the NSA’s overseas intercept program is, or may be, illegal. I believe that position is foreclosed by all applicable federal court precedents. I assume, for example, that you are aware of the November 2002 decision of the United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001, where the court said:

“The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. *** We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”

In view of the controlling federal court precedents, I do not see how an argument can be made in good faith that there is any doubt about the NSA program’s legality. Therefore, I wonder whether you are somehow unaware of the relevant case law. If you know of some authority to support your implication that the intercepts are or may be illegal, I would be interested to know what that authority is. If you are aware of no such authority, I think that a correction is in order.

And, the Justice Department has issued a five-page statement explaining why it’s legal.

Meanwhile, the Los Angeles Times carries the allegation that the New York Times has been sitting on this story for a long time, and brought it up now to either (1) influence Congress’ vote on renewing the PATRIOT Act (which has nothing to do with the eavesdropping here), or (2) to bring attention to the issue ahead of the publication next month of a book by a New York Times reporter on the Bush Administrations spying programs.

Britain to Monitor All Cars, All the Time

Filed under: — Different River @ 4:04 am

A few years ago, I thought of an idea for a futuristic short story, in which the government tracks the location of every car in the country by means of the GPS receiver installed in the car that transmits its own position to a central tracking facility — and possibly other information, such as speed, seatbelt status, and maybe even audio from a microphone secreted in the car — maybe even video showing who’s in the car. I pictured a control center with a huge electronic map, allowing “whoever” to zoom in on roads, pick out individual cars, clicking on a car and listening to the conversation inside it. Of course, they could always search for a particular individual’s car based on DMV data and find out where that person’s car was.

I never wrote the story. But it is becoming reality much quicker than I thought. In Britain. And it won’t use GPS receivers, but cameras with license-plate readers, so there’s really no way a creative driver could disable it. (And it doesn’t have the audio-bug feature — not yet, anyway.)

And of course, it’s being introduced in the name of “crime control.” After all, if you watch everybody all the time, you must be watching all the criminals, too — right?

Matt Drudge points to this story in The Independent:

Britain will be first country to monitor every car journey

From 2006 Britain will be the first country where every journey by every car will be monitored

By Steve Connor, Science Editor
Published: 22 December 2005

Britain is to become the first country in the world where the movements of all vehicles on the roads are recorded. A new national surveillance system will hold the records for at least two years.

Using a network of cameras that can automatically read every passing number plate, the plan is to build a huge database of vehicle movements so that the police and security services can analyse any journey a driver has made over several years.

The network will incorporate thousands of existing CCTV cameras which are being converted to read number plates automatically night and day to provide 24/7 coverage of all motorways and main roads, as well as towns, cities, ports and petrol-station forecourts.

By next March a central database installed alongside the Police National Computer in Hendon, north London, will store the details of 35 million number-plate “reads” per day. These will include time, date and precise location, with camera sites monitored by global positioning satellites.

Already there are plans to extend the database by increasing the storage period to five years and by linking thousands of additional cameras so that details of up to 100 million number plates can be fed each day into the central databank.

They don’t even have it yet, and they’re already planning to expand it! Maybe they’ll never delete anything…

Senior police officers have described the surveillance network as possibly the biggest advance in the technology of crime detection and prevention since the introduction of DNA fingerprinting.

But others concerned about civil liberties will be worried that the movements of millions of law-abiding people will soon be routinely recorded and kept on a central computer database for years.

Not like anyone cares about those weirdos who are “concerned about civil liberties” … those extremists…

This is bad. Very, very bad.

December 20, 2005

Clinton and Carter Ordered Secret Warrantless Searches

As long as we’re on the subject of President Bush ordering wiretaps of al-Qaeda operatives’ international phone calls and e-mails without court-issued search warrants, Matt Drudge is reporting that President Clinton and President Carter did pretty much the same thing — although President Clinton extended the authority for warrantless searches beyond wiretapping, to include physical searches.

From Executive Order 12139, issued by President Carter on May 23, 1979:

By the authority vested in me as President by Sections 102 and 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802 and 1804), in order to provide as set forth in that Act (this chapter) for the authorization of electronic surveillance for foreign intelligence purposes, it is hereby ordered as follows:

1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.

And from Executive Order 12949, issued by President Clinton on February 9, 1995:

By the authority vested in me as President by the Constitution
and the laws of the United States, including sections 302 and 303 of the Foreign Intelligence Surveillance Act of 1978 (“Act”) (50 U.S.C. 1801, et seq.), as amended by Public Law 103- 359, and in order to provide for the authorization of physical searches for foreign intelligence purposes as set forth in the Act, it is hereby ordered as follows:

Section 1. Pursuant to section 302(a)(1) of the Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.

In fact, Jamie Gorelick, who was Deputy Attorney General in the Clinton Administration, and more recently a member of the “9/11 Commission,” testified before Congress on July 14, 1994:

“The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes, and that the President may, as has been done, delegate this authority to the Attorney General.”

Indeed, as Byron York points out, the Clinton Administration actually used that authority, searching the home of Aldrich Ames without a warrant. Ames was suspected (and later convicted) of spying, so I would guess this qualified him as an “agent of a foreign power” for these purposes, despite that fact that he’s an American citizen.

So when Democrats are crowing that Bush’s order makes him “the first President to ever willingly admit to an impeachable offense,” they have clearly taken leave of the facts, if not their senses.

Byron York also pointed out that when Gorelick announced the Clinton Administration’s position, the Washington Post reported it on page A-19.

Now, when Bush does the same thing (except less, since he didn’t include physical searches), it’s a top story.

Media bias, anyone?

Carl Levin, Strict Constructionist, and the Exclusionary Rule

Last week, the big news story was that shortly after the attacks of 9/11/01, the President “secretly authorized” the National Security Agency to eavesdrop on international phone calls and e-mail messages in which one of the participants was in the United States — without the court-approved warrants “ordinarily required for domestic spying”; that is, for eavesdrop on communications conducted wholly within the United States.*

The president explained the policy at a press conference, disputing the fact that the order was “secret,” at least from Congress:

So, consistent with U.S. law and the Constitution, I authorized the interception of international communications of people with known links to al Qaeda and related terrorist organizations. This program is carefully reviewed approximately every 45 days to ensure it is being used properly. Leaders in the United States Congress have been briefed more than a dozen times on this program. And it has been effective in disrupting the enemy, while safeguarding our civil liberties.

U.S. Senator Carl Levin (D-MI) had something interesting to say about this:

He cites the law which authorized the use of force in Iraq [sic -- he must have meant the post-9/11/01 use-of-force resolution which did not mention Iraq specifically --DR] as the legal basis for his wiretapping and surveillance program. What he does not do is tell us where in that resolution authorizing force in Iraq does he see that authority. We can’t find any. Where in the Constitution — which not only has an Article II creating an executive branch but has a Bill of Rights protecting the privacy of Americans — where does he find in the Constitution the authority to tap the wires and the phones of American citizens without any court oversight?

I am tempted to answer: “Right after the sentence in the Constitution that guarantees the right to an abortion.” After all, Carl Levin is a well-known supporter of abortion as a Constitutional right. I’d love to hear him admit that there is no more explicit mention of abortion in the Constitution than there is of wiretapping suspected terrorists — a position that the so-called “strict constructionist” school of jurisprudence has been making for a long time.

Ah, but you say — no one ever claimed the right to an abortion was explicitly mentioned in the Constitution. Even the Supreme Court Justice Harry Blackmun, writing the majority opinion in Roe vs. Wade, explicitly admits that, “The Constitution does not explicitly mention any right of privacy,” let alone abortion. Instead, he finds the right to an abortion by reference to the “penumbras of the Bill of Rights,” or as Justice William Douglass put it in Griswold vs. Connecticut, “penumbras, formed by emanations from those guarantees that help give them life and substance.”

So, there you have it, Senator Levin: The president’s authority to wiretap suspected al-Qaeda operatives in the United States comes from the “penumbras, formed by emanations” from the use-of-force resolution passed on September 14, 2001.

(UPDATE, 12/28/05: Alex Tabarrok makes a similar point.)

Seriously, though: My real question is why anyone is surprised by this. A prominent former FBI agent said when he was in the FBI (mid-1960s), it was standard practice for the FBI to conduct warrantless searches. The Clinton Administration’s Project Echelon intercepted so much it’s been called an “information vacuum cleaner.”

Why is all this legal? Because the Supreme Court said it’s legal!

And, the Supreme Court said it’s legal in a decision that has been the very foundation of the liberal view of due process. See, in
Weeks vs. U.S. (1914)
(applied to the states in Mapp vs. Ohio (1961)), the Supreme Court decided that the “penalty” for an illegal search was the that evidence obtained through the illegal search could not be used against a defendant in court. This is called the “exclusionary rule.” As California Supreme Court Justice Stanley Mosk noted:

“The two-fold purpose of the exclusionary rule is to deter law enforcement officers from engaging in unconstitutional searches and seizures by removing their incentive to do so, and to relieve the courts from being compelled to participate in such illegal conduct.

There are two problems with this, and serious problem, and a really serious problem: First, freeing a(n otherwise) guilty person because of an illegal search does not really penalize law enforcement officers; it penalizes the general population, who are now subject to suffer future crimes by that individual, and a reduced deterrent to crime for other individuals; it also penalized the victim, who is denied justice. Law enforcement officers are not, generally speaking, “paid by the conviction”; the suffer no more than any other citizen when a criminal goes free. Thus, there is no reason to expect that the exclusionary rule actually deters law enforcement officers from conducting illegal searches at all. The exclusionary rule thus fails to achieve the purpose for which it is intended.

More seriously, by in effect limiting the “penalty” for an illegal search to the exclusion of evidence from a criminal trial, the exclusionary rule effectively gives law enforcement a free hand to conduct as many illegal searches and wiretaps as they want, so long as they do not use the evidence so obtained in a criminal trial. This is why J. Edgar Hoover’s FBI could conduct illegal searches wiretaps all over the place with impunity — if anyone discovered the search and complained, they’d just say, “Fine, we won’t use it against you in court.”** This is fine if you’re guilty of something — but no consolation at all if you’re innocent. The FBI could put a hidden camera in your shower or your bedroom, and if you never do anything illegal, you would have absolutely no recourse. The exclusionary rule effectively superseded the common-law criminal and civil penalties for illegal searches.

In effect, the exclusionary rule serves to narrowly construe the fourth amendment privacy protections to apply only to the guilty. If you are guilty, you will be protected from illegally-obtained evidence from being used against you in court. But if you are innocent — whether accused of a crime or not — they can search and wiretap you as much as they want, and as long as you don’t commit a crime, there’s nothing you can do to stop them.

So to answer Senator Levin’s question: Even if the authority to wiretap al-Qaeda isn’t in the war resolution, and isn’t even in the “penumbras, formed by emanations” of the war resolution or the President’s authority as Commander-in-Chief — in short, even if the wiretaps are actually illegal — the President can go ahead and do them anyway.

And his ability to do so comes from the very capstone of liberal jurisprudence.



*Normally, there is division of labor in eavesdropping — the NSA listens to stuff outside the United States, and the FBI listens to stuff inside the United States. I suspect this is due to the fact that the NSA was set up to protect us from foreign threats and the FBI was originally set up to investigate federal crimes within the U.S.

** Actually, law enforcement could effectively, if not strictly legally, use the information indirectly to prosecute criminals. For example, if they heard through a wiretap that a someone was about to commit a crime at a particular time and place, or had hid the loot someplace, they could go there and witness the crime in the open, or “find” the loot. Though they found out where it was through an illegal wiretap, the actual information obtained in the wiretap did not always have to be presented in court for it to be useful. When it didn’t, the exclusionary rule didn’t even protect guilty people. The only protection it provided was when some evidence was available only illegally, and that evidence was necessary either to convict, or to obtain a legitimate warrant.

September 19, 2005

In Law, Some Things Really ARE “Black and White”

Filed under: — Different River @ 4:55 pm

I refer, of course, to Justice Hugo Black, and Justice Byron White, who were both on the Supreme Court and had this exchange-by-proxy in the Griswold case, as excerpted by Eugene Volokh.

Clayton Cramer has additional comments.

September 14, 2005

If You Think the Patriot Act is Bad…

Filed under: — Different River @ 9:52 am

If you think the Patriot Act is a serious violation of privacy rights, consider this:

Dutch to Open Electronic Files on Children

Tue Sep 13, 6:36 PM ET

AMSTERDAM, Netherlands – The Dutch government plans to open an electronic file on every child at birth as a tool to spot and protect the troubled kids of the future.

Beginning Jan. 1, 2007, all citizens will be tracked from cradle to grave in a single database — including health, education, family and police records — the health ministry said Tuesday.

As a privacy safeguard, no single person or agency will be able to access all contents of a file. But organizations can raise “red flags” in the dossier to caution other agencies about problems, ministry spokesman Jan Brouwer said.

The intention is to protect troubled children, Brouwer said. Until now, schools and police have been unable to communicate with each other about truancy records and criminality, which are often linked.

“Child protection services will say, ‘Hey, there’s a warning flag from the police. There’s another one from school. There’s another one from the doctor,” Brouwer said. “Something must be going on and it’s time to call the parents in for a meeting.”

Every child will get a Citizens Service Number, making it easier to keep track of children with problems even when their families move, said Secretary of Health Clemence Ross.

“Safety, guidance, education and supervision are incredibly important for the development of children,” Ross said.

All Dutch births are currently registered with local authorities.

So in order to “protect troubled children,” the Dutch government is going to be spying on all children, troubled or not. And of course, the government is going to decide which children are “troubled.” The opinions of the child and his/her parents will not be relevant. And if enough bureaucratic “warning flags” go up, the government will “call the parents in for a meeting.” Which, no doubt, will be strictly for their own “protection.”

Big Sibling is watching you!

(Now, where did I leave my copy of 1984?)

UPDATE:

In the comments, Gary noted that, “This is just a step away where they will install a microchip deep in the body somewhere so it can’t be removed.”

It is worth nothing in this regard that the FDA recently approved an implantable microchip with RFID transmitting capabailities. The idea — for now — is that you could get your medical records stored on a chip, and have the chip implanted in your body, so that doctors would have access to your medical records whenever they had access to you. The device is implanted under the skin, rather than “deep in the body,” but I don’t know if it can be removed by an amateur. I kind of doubt it.

This is, of course, just a small step from requiring these devices to be impanted in everybody, and using them for storing information other than just medical records. Indeed, if medical records include your name and related information such a device could be used to track the whereabouts of people even if it weren’t used to store anything but “medical records.”

Note from the article that opponents of this device are already being characterized as “fundamentalist religious groups who contend that the tags may be the “mark of the beast” referred to in the Book of Revelation.” By demonizing (pun intended!) the opposition this way, they seek to discredit opposition based merely on reasonable concerns for privacy and for the right to control one’s own body free of government complusion. (Something tells me that the folks who purport to be so enthusiastic about “the right to control one’s own body” when it comes to abortion aren’t going to be too upset about this.)

April 4, 2005

Big Sibling is Watching You

Filed under: — Different River @ 2:01 am

(Yeah, I know you thought it was Big Brother — but that’s so sexist!)

The city of Bellwood, Illinois — a suburb of Chicago — is planning to put police surveillance cameras everywhere in the city. Well, every street, sidewalk, and alley, at least. No word on whether they’ll put them in bedrooms in private homes, but you’d be advised to keep your shades drawn if you live there. Of course, these days that might be considered probable cause for a search.

The cameras will automatically rotate and zoom to focus in on any source of loud noise; most cameras will not be (intentionally) visible to the observer. Police will be able to monitor the cameras from headquarters, and from laptops in their cars (all wireless of course), and city officials will be able to monitor them on PDAs. (Careful if you date the Mayor’s daughter!)

Details from CrimProf . (Hat tip: InstaPundit.)

Unlike them, I’m not a lawyer, but I think — i.e., I’m afraid — that this is perfectly legal. Courts have held that people have no “expectation of privacy” in a public place. As soon as you step out your front door you are in a public place. And maybe even if you just open your door, they could just aim the camera and zoom in, since a policeman standing in front of your door when you open it could theoretically see in. Somehow, I doubt this is what the Founders had in mind when they wrote the Fourth Amendment, but with all that “living constitution” stuff I guess it doesn’t matter.

March 14, 2005

Jailed for Overdue Library Books

Filed under: — Different River @ 9:56 pm

There really seems to be a crackdown on library users these days.

First there was the U.S. Army Lieutenant threatened with an arrest for tresspassing for reading in the “wrong” section of a public library who was in Brookline, Massachusetts (and later denied renewal of his gun permit using this incident as an excuse).

Now, a fellow in Burlington, Washington has been arrested for having overdue library books. The really stupid thing is, he got arrested after he called police to report that his mail had been stolen. Instead of investigating the mail theft, they discovered he had an outstanding warrant (!!!) for overdue library books (“detaining city property”).

And, he showed the police the library books and told them to take them, but they refused and arrested him instead. Fox News:

Jeremy Jones of Burlington, Wash., called police to his home on Feb. 22 about a case of mail theft.

But the cops found Jones had a warrant out for “detaining city property” and missing a related court date. They promptly clapped the cuffs on the 20-year-old man.

Turned out he had 18 books, worth a total of $268, long past due to the Burlington Public Library.

“I told [the police], ‘They’re right on the table, take them,’” Jones told KOMO-TV of Seattle. “They said, ‘No, we have a warrant, we have to arrest you.’”

Remeber this next time you here librarians get all high and mighty about the USA PATRIOT Act and their refusal to honor search warrants requesting library patron records to protect patron “privacy.” Obviously, they have no problem handing patron records over to the police to get revenge for (since they apparently declined to allow the police to collect) a $268 library fine. But they would never hand over patron records to the FBI to help with a terrorism investigation. From the web site of the American Library Association:

What people read, research or access remains a fundamental matter of privacy. One should be able to access all constitutionally protected information and at the same time feel secure that what one reads, researches or finds through our Nation’s libraries is no one’s business but their own.

There are many privacy bills that have been introduced into recent Congresses relating to business, health, student and other records. The expansion of e-government, e-commerce, and other forms of electronic transactions, including library services, raises serious questions for the library community in protecting individual privacy, especially the privacy and confidentiality of library patron records.

They have their principles, you see!

Principles that lead them to think it’s perfectly fine to check out books on how to make bombs to blow up innocent people, as long as you return them on time — but it’s a crime to keep books past the due date, if you aren’t using them to planning anything nefarious.

Makes me wonder what they teach in library school these days….

February 24, 2005

SHA-1 Broken (Update)

Filed under: — Different River @ 6:09 pm

Updating this post:

Slashdot reported that:

The findings are that SHA-1 is not collision free and can be broken in 2^69 attempts instead of 2^80. This is about 2000 times faster. With todays computing power and Moores Law, a SHA-1 hash does not last too long. Using a modified DES Cracker, for the small sum of up to $38M, SHA-1 can be broken in 56 hours, with current computing power. In 18 months, the cost should go down by half. Jon Callas, PGP’s CTO, put it best: ‘It’s time to walk, but not run, to the fire exits. You don’t see smoke, but the fire alarms have gone off.’ As Schneier suggests, ‘It’s time for us all to migrate away from SHA-1.’ Alternatives include SHA-256 and SHA-512.”

So, I’m not particularly worried, but quite properly PGP is moving to a more secure version of the SHA algorithm.

This is a good argument for keeping your software upgraded.

SHA-1 Broken (Update)

Filed under: — Different River @ 5:45 pm

Updating this post:

Slashdot reported that:

The findings are that SHA-1 is not collision free and can be broken in 2^69 attempts instead of 2^80. This is about 2000 times faster. With todays computing power and Moores Law, a SHA-1 hash does not last too long. Using a modified DES Cracker, for the small sum of up to $38M, SHA-1 can be broken in 56 hours, with current computing power. In 18 months, the cost should go down by half. Jon Callas, PGP’s CTO, put it best: ‘It’s time to walk, but not run, to the fire exits. You don’t see smoke, but the fire alarms have gone off.’ As Schneier suggests, ‘It’s time for us all to migrate away from SHA-1.’ Alternatives include SHA-256 and SHA-512.”

So, I’m not particularly worried, but quite properly PGP is moving to a more secure version of the SHA algorithm.

This is a good argument for keeping your software upgraded.

Spy-cams don’t stop crime

Filed under: — Different River @ 4:42 pm

The Evening Standard, a newspaper in London, the city with perhaps the most surveillance cameras per square mile kilometer than anywhere else, is reporting that even the government there admits that the cameras don’t reduce crime. The only exception they found was for cameras in parking lots. But the cameras on public streets, the ones that were supposed to eliminate crime in central London, aren’t doing that. All they do is infringe people’s privacy without conferring any countervailing benefit.

Closed circuit TV systems are of little use in the fight against crime, a surprise government report claims today.

Home Office researchers who studied 14 schemes across Britain found that only one had brought a clear fall in the local crime rate.

The findings come as a blow to the Home Office, which has trumpeted CCTV as a key crime-fighting weapon for the past 10 years.

The report’s author, Professor Martin Gill of the University of Leicester, said: “For supporters these findings are disappointing. For the most part CCTV did not produce reductions in crime and did not make people feel safer.”

Note that they not only did not reduce crime, but they “did not make people feel safer.” I guess according to professor Gill, if they did not reduce crime, but fooled people into feeling safer, that would be better than doing neither.

I find the emphasis on “feeling safer” very disturbing — the implication is that “feeling safer” is a benefit separate and distinct from “being safer,” and that it is a good thing to at least make people feel safer even if we can’t make them actually safer. This is not only wrong, it’s backwards — if you feel safer than you are, you are likely to take actions that make you even less safe. If you feel too safe in a car, you may not wear your seatbelt, which makes you less safe than you would be if you felt a bit unsafe and wore it. Likewise, if you feel more safe from crime than you really are, you might not take precautions that are actually justified given the actual level of safety you have.

The goal ought to be to make people actually safer, and have them feel exactly as safe as they are, no more and no less. (You don’t want people to feel too unsafe either, because then they will wastefully take unnecessary precautions.)

The article ended with the following curious statement:

On the plus side, only one in six people objected to CCTV on civil liberties grounds.

Well, there’s unbiased journalism for you! How would they feel about someone writring this: “On the plus side, only one in six people objected to censorship of the press on civil liberties grounds.”

I rather think it’s on the minus side, that so few people think that centralized surveillance in the tradition of 1984 is objectionable on civil liberties grounds.

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