Category Archives: Privacy

Happy Constitution Day

Constitutionalconvention

Two Hundred Twenty Two years ago in Philadelphia, the Constitution Convention in Philadelphia completed it’s work.

At the close of the Constitutional Convention in Philadelphia on September 18, 1787, a Mrs. Powel anxiously awaited the results, and as Benjamin Franklin emerged from the long task now finished, asked him directly: “Well Doctor, what have we got, a republic or a monarchy?” “A republic if you can keep it” responded Franklin.

222 years later, Mrs. Powell’s question, and Franklin’s response, remain undecided.

Do yourself a favor — read The Constitution, and then ask whether we’re still following it the way the Founders intended, and whether we’re going to be able to keep the Republic that Franklin was talking about.

Hope And Change Update: Obama Backs Extension Of PATRIOT Act

The more things change, the more they stay the same:

WASHINGTON — The Obama administration supports extending three key provisions of the Patriot Act that are due to expire at the end of the year, the Justice Department told Congress in a letter made public Tuesday.

Lawmakers and civil rights groups had been pressing the Democratic administration to say whether it wants to preserve the post-Sept. 11 law’s authority to access business records, as well as monitor so-called “lone wolf” terrorists and conduct roving wiretaps.

The provision on business records was long criticized by rights groups as giving the government access to citizens’ library records, and a coalition of liberal and conservative groups complained that the Patriot Act gives the government too much authority to snoop into Americans’ private lives.

As a presidential candidate, Barack Obama said he would take a close look at the law, based on his past expertise in constitutional law. Back in May, President Obama said legal institutions must be updated to deal with the threat of terrorism, but in a way that preserves the rule of law and accountability.

The most egregious thing about Obama’s extension proposal is that none of the provisions he wants to extend require a search warrant issued by a judge or even the existence of probable cause. Moreover, as Jason points out over at United Liberty, the PATRIOT Act itself has been rife with abuse ever since implementation:

In 2007, FBI Director Robert Mueller admitted to abuses of the PATRIOT Act. In fact, there were more than 1,000 instances of the FBI misusing the law. According to the Washington Post, the “audit [covered] just 10 percent of the bureau’s national security investigations since 2002, and so the mistakes in the FBI’s domestic surveillance efforts probably number several thousand.”

And yet Obama wants to extend it.

The more things change, the less hope I have.

The Arrest Of Henry Louis Gates Was Unconstitutional

So says Fox News Channel Legal Analyst, and former Judge, Andrew Napolitano:

Civil liberties attorney Harvey Silvergate agrees:

Under well-established First Amendment jurisprudence, what Gates said to Crowley–even assuming the worst–is fully constitutionally protected. After all, even “offensive” speech is covered by the First Amendment’s very broad umbrella

(…)

Today, the law recognizes only four exceptions to the First Amendment’s protection for free speech: (1) speech posing the “clear and present danger” of imminent violence or lawless action posited by Holmes, (2) disclosures threatening “national security,” (3) “obscenity” and (4) so-called “fighting words” that would provoke a reasonable person to an imminent, violent response.

As Silvergate goes on to discuss in an article well-worth reading, none of these four exceptions can reasonably be said to have applied to the confrontation between Crowley and Gates. Additionally, as Jacob Sullum notes, neither would Massachusetts state law on disorderly conduct justify the arrest in this case:

In Massachusetts, as in many states, the definition of disorderly conduct is drawn from the American Law Institute’s Model Penal Code. A person is considered disorderly if he “engages in fighting or threatening, violent or tumultuous behavior…with purpose to cause public inconvenience, annoyance or alarm” or “recklessly creates a risk thereof.”

Crowley claims Gates recklessly created public alarm by haranguing him from the porch of his house, attracting a small crowd that included “at least seven unidentified passers-by” as well as several police officers. Yet it was Crowley who suggested that Gates follow him outside, thereby setting him up for the disorderly conduct charge.

It’s hard to escape the conclusion that Crowley was angered and embarrassed by Gates’ “outburst” and therefore sought to create a pretext for arresting him. “When he has the uniform on,” Crowley’s wife later told The New York Times, “Jim has an expectation of deference.”

As the Massachusetts Appeals Court has noted, “the theory behind criminalizing disorderly conduct rests on the tendency of the actor’s conduct to provoke violence in others.” Yet police officers often seem to think the purpose of such laws is to punish people for talking back to cops.

And yet, that’s not what the law says, as Massachusetts’ highest Court has recognized:

The officers’ presence, alone, did not suffice to prove the public element, regardless of any concern they may have felt as they witnessed the defendant’s confrontation with Sergeant Boss. As recognized in the commentaries to the Model Penal Code, behavior that has an impact only upon members of the police force is significantly different from that affecting other citizens in at least two respects: it is an unfortunate but inherent part of a police officer’s job to be in the presence of distraught individuals; and, to the extent that the theory behind criminalizing disorderly conduct rests on the tendency of the actor’s conduct to provoke violence in others, “one must suppose that [police officers], employed and trained to maintain order, would be least likely to be provoked to disorderly responses.” Model Penal Code § 250.2 comment 7, at 350. Accordingly, police presence in and of itself does not turn an otherwise purely private outburst into disorderly conduct.(9)

In other words, the mere act of talking back to a cop does not constitute a crime and should not justify arrest.

Gates was a hothead, but Crowley stepped outside the bounds of his Constitutionally-limited authority.

Ain’t Nobody’s Business If You Do

THIS BOOK IS BASED on a single idea: You should be allowed to do whatever you want with your own person and property, as long as you don’t physically harm the person or property of a nonconsenting other.

Thus begins a book that everyone interested in politics should read; Ain’t Nobody’s Business If You Do: The Absurdity of Consensual Crimes in a Free Country by Peter McWilliams.  Published in 1998, it is a damning survey of how the United States had become a state composed of “clergymen with billy-clubs”.  It analyzes the consequences of punishing so-called victimless crimes from numerous viewpoints, demonstrating that regardless of what you think is the most important organizing principle or purpose of society the investigation, prosecution and punishment of these non-crimes is harmful to society.

This remarkable book is now posted online, and if one can bear to wade through the awful website design, one will find lots of thought-provoking worthwhile commentary, analysis, theory and history.

His final chapter, on how to change the system, while consisting mainly of pie-in-the-sky, ineffective suggestions of working within the system, starts of with an extremely good bit of advice that I urge all our readers to try:

The single most effective form of change is one-on-one interaction with the people you come into contact with day-by-day. The next time someone condemns a consensual activity in your presence, you can ask the simple question, “Well, isn’t that their own business?” Asking this, of course, may be like hitting a beehive with a baseball bat, and it may seem—after the commotion (and emotion) has died down—that attitudes have not changed. If, however, a beehive is hit often enough, the bees move somewhere else. Of course, you don’t have to hit the same hive every time. If all the people who agree that the laws against consensual crimes should be repealed post haste would go around whacking (or at least firmly tapping) every beehive that presented itself, the bees would buzz less often.

I highly recommend this book.  Even though I have some pretty fundamental disagreements with some of his proposals, I think that this book is a fine addition to the bookshelf of any advocate of freedom and civilization.

Hat Tip: J.D. Tuccille of Disloyal Opposition.

I am an anarcho-capitalist living just west of Boston Massachussetts. I am married, have two children, and am trying to start my own computer consulting company.

Common Ground for the Left and the Right on the Bill of Rights

SCOTUS Returns to Sanity in School Strip Search Case

It seems that most of the time the U.S. Supreme Court is divided 5-4 on what should be very basic Constitutional principles (such was the case I wrote about in my most recent post). But once in awhile, SCOTUS does the unthinkable and actually upholds the Constitution. In Safford Unified School District #1 et. al. v. Redding, the court ruled 8-1 that the school district had violated then 13 year-old Savana Redding’s Fourth Amendment rights against unreasonable searches.

Reuters Reports:

“Because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear, we hold that the search did violate the Constitution,” Justice David Souter wrote for the court majority.

The school’s policy prohibits the use, possession or sale of any drug on school grounds, including prescription and over-the-counter medications. A week before the search, a student became sick after taking pills from a classmate and said certain students were bringing drugs to school.

Following an assistant principal’s orders, a school nurse had Redding remove her clothes, move her bra to the side and pull her underwear out, exposing her breasts and pelvic area, to see if she was hiding any ibuprofen pills.

[…]

Only Justice Clarence Thomas dissented from the part of the ruling that Redding’s privacy rights had been violated.

Thomas said the ruling “grants judges sweeping authority to second-guess the measures that these officials take to maintain discipline in their schools and ensure the health and safety of the students in their charge.”

While the court agreed that the school district violated Redding’s privacy rights, only Justices Ginsburg and Stevens believed the school administrators should be held liable; the remaining Justices believed that prior to this ruling, the law had not been clearly established.

The ACLU attorney Adam Wolf who represented Redding was also quoted in the article saying: “Today’s ruling affirms that schools are not constitutional dead zones. Savana … is pleased that other students will not have to go through the trauma that she experienced.”

I think we sometimes forget that public school teachers and administrators are actually agents of the government. At times, schools have become “constitutional dead zones” but we should always remember that government agents of all kinds should be expected to respect legitimate rights of students. If the school administrators had good reason to believe that Redding had contraband, they could apply for a search warrant and allow the proper authorities to conduct the search.

Quote Of The Day

The Sheriff whose deputies raided Berwyn Heights, MD mayor Cheye Calvo’s house predictably doesn’t think they did anything wrong. He said a lot of pretty despicable things in that article, but this one really bothers me:

“I’m sorry for the loss of their family pets,” Jackson said. “But this is the unfortunate result of the scourge of drugs in our community. Lost in this whole incident was the criminal element. . . . In the sense that we kept these drugs from reaching our streets, this operation was a success.”

What criminal element? The mayor? His wife? His elderly mother-in-law? The two labrador retrievers they shot?

Did they suspect Calvo was a drug-runner? Obviously not, because they ALREADY knew the drugs were intended (from an on-going investigation) for a false drop.

If there’s a criminal element, don’t you think it might be the guys, dressed in black, who busted down the door of a law-abiding citizen, terrorized his family, and shot his dogs? All without even a cursory investigation to see if they’d done anything wrong other than having their own address on a package that even the cops weren’t sure was intended for them?

This isn’t the result of the scourge of drugs or the criminal element. This is the result of shoddy police work. This Sheriff should be ashamed of his wanton disregard for logic and humanity.

Charles Lynch Sentenced to 1 Year and 1 Day in Prison

Read the news story here and reason‘s coverage here. The video below is Lynch’s response:

While I’m not happy that Mr. Lynch is doing time for legally dispensing marijuana under California’s compassionate use law, he certainly could have received a much harsher sentence (up to 100 years). U.S. District Judge George Wu should be commended for finding an exception to the 5 year mandatory minimum sentence and reducing it to a relatively reasonable sentence of 1 year. That’s probably the best he could do under the circumstances.

There is however, one person who can correct this injustice perpetrated by the Bush Justice Department: President Obama. I urge all those who support the Tenth Amendment to join me in calling on President Obama to pardon Charles Lynch. Federalism is a much larger principle in this case than medical marijuana or even the war on (some) drugs. The State of California (whether one agrees or not with using marijuana for medicinal purposes), passed a law the federal government did not like. This law does not violate the U.S. Constitution and is, therefore, beyond the reach of the federal government according to the Tenth Amendment.*

Furthermore, President Obama and his Attorney General Holder have both said on several occasions that the federal raids on these dispensaries would end provided the operators are not violating both state and federal law. A full pardon of Charles Lynch would go a long way toward reversing a bad policy from the previous administration.

» Read more

Quote of the Day: Sotomayor’s “Pro-State Bias” Edition

This article in The Boston Globe about Sonia Sotomayor ought to delight “tough on crime” conservatives and cause great concern for civil libertarians of all stripes. Prosecutors and law enforcement organizations give her high marks for her “aggressiveness” both as a prosecutor and as a judge.

One quote from the article stood out and seems to support what I wrote about her in a post I wrote last week:

“[Sotomayor] certainly doesn’t seem to have a pro-criminal bias and, if anything, because of her history, may have a pro-state bias.” – Law Professor and Sentencing Expert Doug Berman

I take exception to the “pro-criminal” part of the quote because in our system (at least in theory), individuals are innocent until proven guilty. Beyond this, I am troubled that a nominee for the Supreme Court would show a detectable bias toward either toward the prosecution or the defense. The only bias a judge should have should be toward the Constitution (the Bill of Rights in-particular).

This is one bias Judge Sotomayor appears not to have.

The Nanny State vs. The Family, 2009 Edition

Out in Minnesota, there’s a case pending that tests the limits of individual rights, religious liberty, and the state’s role in “protecting” children.

MINNEAPOLIS (AP) — A Minnesota judge is expected to decide whether a family can refuse chemotherapy for a 13-year-boy’s cancer and treat him with natural medicine, even though doctors say it’s effectively a death sentence.

With chemotherapy, Daniel Hauser has a 90 percent chance of surviving his Hodgkin’s lymphoma, according to his cancer doctor. And without it?

“It is almost certain that he will die,” said Dr. Bruce Bostrom, a pediatric oncologist at Children’s Hospital and Clinics of Minnesota. Bostrom, who diagnosed the disease, is an ally of the legal effort in southwestern Minnesota’s Brown County to make Hauser submit to chemotherapy even though he and his parents believe it’s potentially more harmful than the cancer itself.

District Judge John Rodenberg was expected to rule Friday on Brown County’s motion.

Bostrom said Daniel’s chance of survival without chemotherapy is about 5 percent. Nevertheless, parents Colleen and Anthony Hauser are supporting what they say is their son’s decision to instead treat the disease with nutritional supplements and other alternative treatments favored by the Nemenhah Band. The Missouri-based religious group believes in natural healing methods advocated by some American Indians.

This case is similar to one that made headlines here in Virginia, and around the country three years ago when a Chesapeake County Judge was faced with deciding whether then 16 year-old Abraham Cherrix, who was suffering form the same form of cancer as Daniel Hauser, should be forced to undergo chemotherapy. After a Court fight that lasted nearly two months, the case was settled and Cherrix was ultimately permitted to refuse the undergo chemotherapy. His case, however, led to a change in Virginia law which gives children the right to refuse to undergo medical treatment after they reach the age of 14.

Of course, Abraham’s Law, as it came to be called as it made it’s way through the Virginia Legislature, wouldn’t really apply in Hauser’s case since he’s under 14, and it’s age that is one of the major factors that distinguishes this case from the Cherrix case. Is a 13 year old really mature enough to understand the implications of a decisions that could very well result in his death ? Is he really making the decision on his own, or is he being influenced by his parent’s rather unorthodox religious beliefs:

The Hausers, who are Roman Catholic, have eight children. Colleen Hauser told the New Ulm Journal newspaper that the family’s Catholicism and adherence to the Nemenhah Band are not in conflict, and said she has treated illness with natural remedies her entire life.

Nemenhah was founded in the 1990s by Philip Cloudpiler Landis, who said Thursday that he was one-fourth American Indian. Nemenhah adherents are asked to pay $250 to be members. “We’re non-dogmatic, a very universal faith,” Landis said.

Landis said he founded the faith after facing his diagnosis of a cancer similar to Daniel Hauser. He said he treated it with diet choices, visits to a sweat lodge and other natural remedies. Landis also once served four months in prison in Idaho for fraud related to advocating natural remedies.

So, the Hauser case seems to be a much closer call that the Cherrix case was, but I think the default position should be the same as the one I stated when I first heard the name Abraham Cherrix:

It seems pretty clear to me, though, that the state has little, if any, right to interfere in what is essentially a private decision for the Cherrix family, and specifically for Abraham. Who is the state social worker to say that his decision is wrong ? As someone who has witnessed first-hand what happens to someone on chemotherapy, its pretty clear that modern cancer therapy is often based on the hope that the chemicals being pumped into the patient will kill the cancer cells before killing the patient. The side effects are visible, painful, and often permanent. Abraham has been through one round of chemotherapy already and, apparently it didn’t work. If he chooses not to subject himself to that again, and his parents support that, that decision should be respected.

Yes, Abraham is 16 and technically a minor, but if its clear that his decision is really his, then what right does the government have to stick a needle in his arm and pump toxic chemicals into his body ? None that I can see.

Replace Abraham’s name with Danie’ls, and I think those words apply just as strongly in this case. The state has no right to force someone to put chemicals in their body, not even a child.

And what ever happened to Abraham Cherrix ? Well, after initially appearing to suffer a setback in 2007, he turned 18 in June of last year showing no signs of the Hodgkin’s Disease that had been ravaging his body for years.

Update @ 4:15pm: The judge hearing Daniel’s case has issued his decision and has ruled that Daniel must undergo the chemotherapy treatments.

C/P: Below The Beltway

The Latest Victim Of The PATRIOT Act: A 16 Year-Old Kid

Remember when we were told in the wake of the September 11th attacks that the extraordinary surveillance and investigative powers being granted to the Federal Government were intended solely to protect us from terrorist attacks ?

Well, perhaps someone can explain exactly how a 16 year-old in North Carolina constitutes a terrorist threat:

Oxford, N.C. — Sixteen-year-old Ashton Lundeby’s bedroom in his mother’s Granville County home is nothing, if not patriotic. Images of American flags are everywhere – on the bed, on the floor, on the wall.

But according to the United States government, the tenth-grade home-schooler is being held on a criminal complaint that he made a bomb threat from his home on the night of Feb. 15.

The family was at a church function that night, his mother, Annette Lundeby, said.

“Undoubtedly, they were given false information, or they would not have had 12 agents in my house with a widow and two children and three cats,” Lundeby said.

Around 10 p.m. on March 5, Lundeby said, armed FBI agents along with three local law enforcement officers stormed her home looking for her son. They handcuffed him and presented her with a search warrant.

“I was terrified,” Lundeby’s mother said. “There were guns, and I don’t allow guns around my children. I don’t believe in guns.”

Lundeby told the officers that someone had hacked into her son’s IP address and was using it to make crank calls connected through the Internet, making it look like the calls had originated from her home when they did not.

Her argument was ignored, she said. Agents seized a computer, a cell phone, gaming console, routers, bank statements and school records, according to federal search warrants.

“There were no bomb-making materials, not even a blasting cap, not even a wire,” Lundeby said.

And yet her son remains in custody in a juvenile facility in Indiana and the government doesn’t even feel obligated to explain the charges against him:

Passed after the Sept. 11, 2001, terrorist attacks on the U.S., the Patriot Act allows federal agents to investigate suspected cases of terrorism swiftly to better protect the country. In part, it gives the federal government more latitude to search telephone records, e-mails and other records.

“They’re saying that ‘We feel this individual is a terrorist or an enemy combatant against the United States, and we’re going to suspend all of those due process rights because this person is an enemy of the United States,” said Dan Boyce, a defense attorney and former U.S. attorney not connected to the Lundeby case.

(…)

Boyce said the Patriot Act was written with good intentions, but he said he believes it has gone too far in some cases. Lundeby’s might be one of them, he said.

“It very well could be a case of overreaction, where an agent leaped to certain conclusions or has made certain assumptions about this individual and about how serious the threat really is,” Boyce said.

Gee, do you think ?

Here’s a report from a local television station in North Carolina about the incident:

Rick Sincere, whose post early this morning pointed me to this horrendous story, sums up all of this up quite nicely:

In addition to incompetences like this, government law enforcement agencies are extremely shy about apologizing for mistakes. (They almost never do so, unless by court order.) So Ashton Lundeby, no matter how strong the case for his innocence is, will likely be kept in jail for years as the government tries out new and more ridiculous charges against him, until they find one that sticks or they wear Ashton down so thoroughly that he confesses to crimes he did not commit (and probably did not occur).

Welcome to the new America, my friends.

C/P: Below The Beltway

Supreme Court One Step Closer To Allowing Strip Searches In Schools

I’ve written in the past about the case of Savanna Redding, a now 19 year-old woman who, when she was thirteen years old was strip-searched by officials at her Arizona school who were convinced that she was concealing a banned substance; Advil.

As it turned out, Savanna had no drugs on her, but the strip search is something she’ll never forget, and, yesterday, her case against the school officials who did this to her was argued before the Supreme Court of the United States:

An important case at the Supreme Court sometimes informs as much about the justices as the issue at hand, and yesterday’s animated hearing on whether school officials have the right to strip-search a 13-year-old female student seemed just such a case.

Justice Stephen G. Breyer wondered if the incident was much different from the experience of disrobing for gym class. Justice Anthony M. Kennedy affirmed his deep concerns about illicit drugs. Justice Ruth Bader Ginsburg seemed at times on the edge of exasperation with her all-male colleagues. And Chief Justice John G. Roberts Jr. searched for a way to make the issue go away.

But it was Justice David H. Souter who seemed to sum up the dilemma for a majority of the court. He put himself in the place of a school official balancing the need for keeping his young charges safe from drugs while respecting the constitutional protections even middle school students should receive.

“My thought process is, I would rather have the kid embarrassed by a strip search, if we can’t find anything short of that, than to have some other kids dead because the stuff is distributed at lunchtime and things go awry,” Souter said.

As ScotusBlog’s Lyle Dennison notes, the Justice’s questioning seemed to indicate that their decision in this case will be motivated by fear more than anything else:

With an undercurrent of fear running across the Supreme Court bench about drug abuse among school students, and a perception that young people will try hard to avoid detection, the Justices searched anxiously on Tuesday for a way to clarify — and perhaps to enhance — public school principals’ authority to conduct personal searches of the youths in their charge.

(…)

No more telling illustration of the Court’s mood emerged than Justice David H. Souter — whose vote would almost have to be won for student privacy to prevail – expressing a preference for “a sliding scale of risk” that would add to search authority — including strip searching — based on how school officials assessed whether “sickness or death” was at stake.

“If the school official’s thought process,” Souter asked, “was ‘I’d rather have a kid embarrassed rather than some other kid dead,’ isn’t that reasonable under the Fourth Amendment?” Stated in that stark way almost compelled agreement, without regard to whether a student singled out for a strip search was actually adding to such a risk, but was only the target of a classmate’s unverified tip.

Along with Souter, two other Justices whose votes might turn out to be crucial — Stephen G. Breyer and Anthony M. Kennedy — were plainly more concerned about the drug problem than with student privacy. Both of those Justices, in past cases involving students and suspected drug use, have suggested that students’ rights were not very sturdy.

You can read the full transcript of yesterday’s oral argument in the case here.

Given this, I find myself in agreement with Radley Balko, who says that the reports from yesterday’s oral argument are not encouraging at all for anyone who believes in civil liberties:

Can anyone think of a single incident in the last 30 years in which several children have died after ingesting drugs distributed by one of their classmates on school grounds? Before we let school principles go rummaging through the panties of underage girls, shouldn’t we be at least be able to cite a few examples?

It’s a little troubling to see how comfortable these old men (Ginsburg isn’t quoted in the article) seem to be with allowing school administrators access to the genitalia of school children based on nothing more than a hunch that they might be “crotching” some ibuprofen.

And Steve Verdon notes that the school officials could have exercised just a small degree of common sense:

The strip search was based on a snitch’s statements, something that should be taken with a shovel of salt. When you are down to the underwear and you haven’t found drugs on a student with no history of drug abuse, good grades, good attendance, and no other indicators of being a problem student maybe it is at that point that you should call the child’s parents and involve them.

I summed my own opinions about this story up last month:

I cannot imagine any circumstances where it should be acceptable for school officials to strip search a child. If there is some suspicion that a crime was committed, then the matter should be turned over the police — in which case she couldn’t have been strip-searched until she was actually placed under arrest.

It is, however, John Cole who comes away with the quote of the day on this story:

I can state that as someone with an IQ over room temperature, the fact that we are debating whether it is appropriate for school authorities to strip search kids is a sure sign that something has gone horribly, horribly wrong with this country and our sense of perspective, and I blame the war on drugs.

The fact that Supreme Court Justices, and likely a large segment of the American public, can’t recognize that makes it all even more troubling.

C/P: Below The Beltway

RFID and Privacy

Yesterday morning I was sent an article written by Michigan House Representative Paul Opsommer regarding the Department of Homeland Security’s push to implement Enhanced Drivers’ Licenses:

The Department of Homeland Security is coming to Detroit to push their new “Enhanced Drivers License” (EDL) program on Tuesday as a way to make Michigan licenses compliant with the federal Western Hemisphere Travel Initiative (WHTI). If you don’t pay to enhance your license, you’ll need a passport in order to continue going across the Canadian and Mexican borders in June (you’ll still need a passport to fly).

Opsommer argues that it would make better sense to lower the price of a passport instead of trying to graft the purpose of a passport on to a drivers’ license. Then, he gets to the heart of the DHS proposal:

Instead, they’re offering to “enhance” our license by having a security interview, paying more, and then getting a wireless RFID chip in your license. While the first two requirements seem reasonable, if the part about the wireless RFID chip has you scratching your head, you’re not the only one. We already wisely don’t issue licenses to illegal aliens, but with the enhanced license you have to be able to not just prove your citizenship, but prove it via a wireless chip. Everyone who applies will have a new unique federal ID number assigned to them in addition to their current Social Security Number. The wireless chip then carries that new number, which can be wirelessly scanned by common readers up to 30 feet away, even while it’s still in your wallet.

In theory this will get you through the border faster, but then you are left with an unencrypted chip in your license for the other 12 hours a day you carry it.

He says the following about the privacy implications:

There is currently nothing in the law prohibiting the government from using this to track people away from the border, and also nothing in the law that would prohibit banks, hospitals, hotels, or others from linking you with the number and using it for their own marketing purposes or selling it.

Technically, this technology never tracks people, it only tracks the license. The assumption is that the license is being carried by the license holder when out in public, thereby being a good proxy for tracking the person. However, wallets and purses can be left at home, lost, or stolen, at which point the assumption breaks down.

For the sake of argument, let’s assume that the RFID-chipped license will be carried by the owner 99% of time. This is the equivalent of forgetting one’s license three or four times a year, which is not uncommon for most of the folks I know.  In cases where identity verification is considered critical, such as at a border crossing, a 99% accuracy rate isn’t good enough.  Therefore, the system isn’t designed to operate by reading the license alone:

Enhanced drivers licenses will make it quicker and easier to cross the border back into the United States because they will contain

  • a vicinity Radio Frequency Identification (RFID) chip that will signal a computer to pull up your biographic and biometric data for the CBP Officer as you pull up to the border, and
  • a Machine Readable Zone (MRZ) or barcode that the CBP officer can read electronically if RFID isn’t available.

If the system is working as designed, it will accurately identify the person carrying the chip only when a person (or computer) can compare the features of the holder with the features on file. In any other case, the identity of the holder cannot be known for sure. That, however, doesn’t prevent someone from relying on the assumption that a license is always carried by the license holder and not another person.

This is an important point to make before addressing Opsommer’s argument about a “more secure” form of RFID license. In his comment above, Opsommer uses the word unencrypted to imply “less secure”. This is not the case. To fulfill the identification role specified by DHS, the government reader would need to be able to decrypt the encrypted value returned by the chip with no other information. This requires the use of an encryption algorithm that produces a unique encrypted number for each unencrypted number submitted to it.

The tracking opportunity is the same in either case. People are running around with unique RFID signatures that can be read from up to 30 feet away. The first piece of information a would-be tracker would get is the RFID signature. Once the signature is encountered, the tracker can start gathering information about the holder of the RFID-chipped license.  The interesting thing to consider here is that a third-party tracker piggy-backing on the DHS-sponsored license system would not need to match the ID number to a pre-established identity, meaning the encrypted value is just as useful for third-party tracking as the unencrypted value.

Imagine that a supermarket chain wanted to track its customers using the RFID signature of a drivers’ license.  They set up a scanner to read in the area where a patron would stand to interact with the checker and read the license every time payment was accepted.  It would be possible to track a patrons buying habits by linking the data saved from the register to the RFID signature.  In the case a club card was used, the drivers’ license would be linked back to the name on that.  If a check or credit card was used to pay, that financial information could then be linked to the RFID signature.  The store would now have an entire identity built around the unique signature that has nothing to do with the DHS database.

Taking this hypothetical to the next level, imagine that a diverse array of businesses such as banks, hospitals, hotels, casinos, restaurants, and bookstores began employing similar tracking techniques.  Each would build an identity around the unique signature of the chip.  The bank would know one’s financial habits.  The hospital would know one’s health problems.  The hotel would know when one visited.  The casino would know when one gambled.  The restaurant would know what one ate.  The bookstore would know what one read.  And the supermarket from before would know what one bought.

At that point, there would be an opportunity for an information clearinghouse to buy tracking data keyed to the unique RFID signature from different sources and build an amazingly detailed profile of the license holder/carrier.  The clearinghouse would know everything from their name, telephone number, and address to the fact that they bought a box of 24 donuts on Tuesday despite having diabetes.

In the extreme, it would be possible for the government itself to leverage the work of the clearinghouse by purchasing the data and crossing it with the DHS database.  This scenario is both technically possible and consistent with previous DHS behavior.  Encryption would make no difference in this case because DHS can already decrypt the RFID signature.  Imagine what the government could do with all that information about how a citizen lives his life?

Remember that this detailed profile grew out of exposure to a single unique signature.  The businesses doing the tracking started knowing nothing about the person other than the unique number emitted by their RFID-chipped license.  The only measure of safety encrypting the number provides is that the RFID tag could not be used to query the DHS database.  Of course, since one’s name would be revealed in one of many transactions, even this layer of protection is transitory since the DHS database would contain both name and ID number.

Back to Rep. Opsommer’s article, he laments the situation by saying the following:

[A]t the very least they need to offer enhanced licenses in two varieties, one that has RFID and one that doesn’t, and then let taxpayers decide which they want to choose. DHS has instead chosen a take it or leave it approach that bullies taxpayers with fiscal coercion and a one-size-fits-all policy that doesn’t allow Michigan to use more secure forms of RFID or to skip the chips altogether. Since an EDL will also technically be a limited passport, how the biometric data on the computer system gets shared with the governments of Canada and Mexico is also important.

I would submit to Representative Opsommer that encryption simply doesn’t matter.  Any RFID license that can be read without the holder’s consent is a threat to privacy.  Metallic sleeves and other devices that shield the license are not good enough, since they can be lost or forgotten.  The Ontario government has found a good solution to this problem, though.  They are looking at an Enhanced Drivers’ License that can be read only when someone holds it a certain way:

Seattle-based RFID chip manufacturer Impinj Inc. has demonstrated a prototype vicinity RFID card with a switch.

The design activates the RFID chip when someone places their finger on the corner of the card.

A mechanical switch – with moving parts – would be too frail, says Kerry Krause, vice-president of marketing at Impinj. So they took a different approach.

“With our technology, all you have to do is touch it,” he says. “The tag is only readable when a person is holding the driver’s licence and pinching it in the right spot. Your fingers are completing a circuit and turning it on.”

Such a license offers true privacy, as the person holding it has to take an explicit action for it to be read.  Anything short of this is simply a privacy violation waiting to happen.

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Update – 4/22 @ 1:35 PDT – Thanks to Jeff Molby in the comments for pointing out that the government leveraging privately-collected tracking data is already happening.  Post updated with this information.

Update – 4/22 @ 6:21 PDT – Commenter “Encryption could matter” mentioned the use of push-button technology.  I’ve found info on this and it has been added.

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DHS Responds To Uproar Over Report On “Right Wing Extremism”

In light of the uproar that we’ve seen over the report that Stephen Gordon brought into the public light earlier this week, the Department of Homeland Security has issued this press release:

Release Date: April 15, 2009

For Immediate Release
Office of the Press Secretary
Contact: 202-282-8010

The primary mission of this department is to prevent terrorist attacks on our nation. The document on right-wing extremism sent last week by this department’s Office of Intelligence and Analysis is one in an ongoing series of assessments to provide situational awareness to state, local and tribal law enforcement agencies on the phenomenon and trends of violent radicalization in the United States. I was briefed on the general topic, which is one that struck a nerve as someone personally involved in the Timothy McVeigh prosecution.

Let me be very clear: we monitor the risks of violent extremism taking root here in the United States. We don’t have the luxury of focusing our efforts on one group; we must protect the country from terrorism whether foreign or homegrown, and regardless of the ideology that motivates its violence.

We are on the lookout for criminal and terrorist activity but we do not – nor will we ever – monitor ideology or political beliefs. We take seriously our responsibility to protect the civil rights and liberties of the American people, including subjecting our activities to rigorous oversight from numerous internal and external sources.

I am aware of the letter from American Legion National Commander Rehbein, and my staff has already contacted him to set up a meeting next week once I return from travel. I will tell him face-to-face that we honor veterans at DHS and employ thousands across the department, up to and including the Deputy Secretary.

As the department responsible for protecting the homeland, DHS will continue to work with its state and local partners to prevent and protect against the potential threat to the United States associated with any rise in violent extremist activity.

I’ll leave it to others to comment more fully, but I will say that it’s worth remembering that Timothy McVeigh got his start with the so-called militia movement, and he ended up killing hundreds of people.

H/T: Little Green Footballs

Reforming America’s Prison System: The Time Has Come

Sen. Jim Webb (D-VA) in his recent article calling for a major reform of America’s prisons in Parade Magazine brought some very disturbing, eye opening, statistics about America’s prison system to light. In summary this is some of what he found:

-Since 1984, America’s prison population has quadrupled from 580,000 to 2.3 million

-Though the U.S. accounts for 5% of the world’s population, the U.S. accounts for 25% of the world’s reported prisoners

-Local, state, and federal spending on corrections costs the U.S. taxpayer about $68 billion annually* (California spent nearly $10 million on corrections last year by itself!)

-16% (350,000) adults in prison or jail are mentally ill

-3/4 of drug offenders in state prisons are non-violent offenders or in prison solely for drug offenses

-47.5% of all drug arrests in the U.S. were fore marijuana offenses

-Despite insignificant statistical differences regarding drug use among races, Blacks (accounting for 12% of the U.S. population) account for 37% of all drug arrests, 59% of which are convicted and account for 74% of all drug offenders sentenced to prison

Perhaps for the “tough on crime” types, this is all good news but for anyone else who thinks critically of these statistics, I would expect that most would be concerned if not horrified. In response to these statistics, Sen. Webb makes the following observation:

“With so many of our citizens in prison compared with the rest of the world, there are only two possibilities: Either we are home to the most evil people on earth or we are doing something different–and vastly counterproductive.”

For regular consumers of the evening news, it may seem that the first possibility could be true. Without fail, the evening news reports stories of violence, vandalism, kidnapping, rape, child molestation, and murder both locally and nationally. There is also no shortage of true crime programs** detailing the most heinous crimes one could imagine being committed against other human beings; it’s all very disturbing. Our jails and prisons surely must be overflowing from these creeps!

One would think that roving bands of murderous thugs are on every street in America, yet we each almost always make it to and from work, to and from running errands and eating out unmolested. Our odds of being killed in an auto accident*** are many times greater than being victim to this roving band of murderous thugs. How can this be?

While we should each be vigilant and aware of our surroundings and always use common sense, the perception that our prisoners are overflowing with mostly violent criminals just isn’t true. Figure 1 shows the U.S. prison population under the purview of the U.S. Bureau of Prisons. The BOP population accounts for 202,493 of America’s 2.3 million prisoners.

Figure 1

Source: Bureau of Prisons as of February 2009

Source: Bureau of Prisons as of February 2009


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Meet The New Wiretapper, Same As The Old Wiretapper

The Obama Administration continues to defend the Bush Administration’s wiretapping policies:

(04-06) 15:26 PDT SAN FRANCISCO — The Obama administration is again invoking government secrecy in defending the Bush administration’s wiretapping program, this time against a lawsuit by AT&T customers who claim federal agents illegally intercepted their phone calls and gained access to their records.

Disclosure of the information sought by the customers, “which concerns how the United States seeks to detect and prevent terrorist attacks, would cause exceptionally grave harm to national security,” Justice Department lawyers said in papers filed Friday in San Francisco.

Kevin Bankston of the Electronic Frontier Foundation, a lawyer for the customers, said Monday the filing was disappointing in light of the Obama presidential campaign’s “unceasing criticism of Bush-era secrecy and promise for more transparency.”

(…)

The administration’s new filing asks Walker to dismiss a second suit filed in September by AT&T customers that sought to sidestep the telecommunications immunity law by naming only the government, Bush and other top officials as defendants.

Like the earlier suit, the September case relies on a former AT&T technician’s declaration that he saw equipment installed at the company’s San Francisco office to allow NSA agents to copy all incoming e-mails. The plaintiffs’ lawyers say the declaration, and public statements by government officials, revealed a “dragnet” surveillance program that indiscriminately scooped up messages and customer records.

The Justice Department said Friday that government agents monitored only communications in which “a participant was reasonably believed to be associated with al Qaeda or an affiliated terrorist organization.” But proving that the surveillance program did not sweep in ordinary phone customers would require “disclosure of highly classified NSA intelligence sources and methods,” the department said.

Individual customers cannot show their messages were intercepted, and thus have no right to sue, because all such information is secret, government lawyers said. They also said disclosure of whether AT&T took part in the program would tell the nation’s enemies “which channels of communication may or may not be secure.”

In other words, just trust us.

Once again, it’s change we can believe in !

Maryland House Passes Mayor Calvo’s SWAT Bill by 126 to 9 Vote

Despite the objections of the National Tactical Officers Association, the bill championed by Berwyn Heights Mayor Cheye Calvo passed the Maryland House by a wide margin:

Delegates adopted a bill, on a 126 to 9 vote, that would require law enforcement agencies to report every six months on their use of SWAT teams, including what kinds of warrants the teams serve and whether any animals are killed during raids. The bill was prompted by the case of Berwyn Heights Mayor Cheye Calvo, whose two black Labrador retrievers were shot and killed during a botched raid by a Prince George’s County Sheriff’s Office SWAT team in July.

Calvo has said he was surprised to learn that police departments use the heavily armed units far more routinely than they once did but that it is difficult to get reliable statistics about SWAT raids. The Senate has passed a similar measure.

Here’s hoping that the differences in the House and Senate bills are ironed out, that the Governor has the good sense to sign this bill into law, and that the remaining 49 states will soon pass similar legislation.

H/T: Reason Hit & Run

New Jersey To Ban Being Bare “Down There”

New Jersey, already a state even less free than my home of CA (PDF), has decided to tread where others don’t dare, to see if the ladies are bare down there:

Things could get hairy in New Jersey this summer for women who sport revealing bikinis or a little bit less.

The painful Brazilian wax and its intimate derivatives are in danger of being stripped from salon and spa menus if a recent proposal to ban genital waxing is passed by the state’s Board of Cosmetology and Hairstyling.

Cherry Hill salon owner Linda Orsuto said that women would “go ballistic” if the proposal passed. She said that some women would resort to waxing themselves, visiting unlicensed salons or traveling to other states, including Pennsylvania, in a quest to remain bare down there.

“The clients are going to freak,” said Orsuto, who owns 800 West Salon & Spa, on Route 70. “It’s a hot issue, and we’re going to have to do something.”

New Jersey statutes allow waxing of the face, neck, arms, legs and abdomen, but officials say that genital waxing has always been illegal, although not spelled out.

Regardless, almost every salon in South Jersey, from Atlantic City casinos to suburban strip malls, has been breaking the law for years by ridding women, and some men, of their pubic hair for $50 to $60 a session.

Don’t the emanations of penumbras that apply to nearby portion of a woman’s body also apply here? I’ve never figured out where those emanations and penumbras lie, especially when the 9th Amendment would have sufficed to cover that other decision, but I have to think this is similar enough to get a hearing before a very titillated Clarence Thomas.

Does this mean that all those douchebags wearing their “FBI – Female Body Inspector” t-shirts will now start applying for exactly that job with the state?

I do feel sorry for the husbands and boyfriends of women who are doing it only to be courteous — you’re out of luck. Get ready to hear “sorry, hon, it’s illegal.”

So why the uproar over this? Well, it comes from a likely source:

Orsuto said that the proposal may be the state’s way of diverting a long-established salon procedure “perfected by aestheticians” to the medical community, where hair can be removed via laser treatment by dermatologists.

Follow the lobbying money.

Hat Tip: MichaelW @ QandO

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