fbi v. apple decrypts candidates

As in 2016’s first eight contentious weeks, rallies, polls and posturing are similarly shaping week nine. Clinton v. Sanders and Trump v. Pope are but a couple of the headlines.

This week’s newcomer is Apple v. FBI.

If you care about this issue beyond just the headlines, I would encourage you to go and get the facts for yourself. The encrusted traditional press is pitiful when communicating the substance of the conflict, but Macworld produced a short yet excellent FAQ that will get you up to speed quickly.apple_fbi

Several issues are at play, but the important one to me is determining whether the government can compel its citizens to spend their time and treasure on assisting a criminal investigation. While most of us would be eager to help our law enforcement, it is quite another thing when they compel civic altruism from our neighbors. This is an egregious overreach by the FBI.

I do not recall the cultural prototype of Federal Law enforcement, Matt Dillon, ever deputizing a posse against their will.

As shocking as it is that the courts went along, it is more disturbing to behold the uniform public support for the FBI in this matter. Outside of the tech community, Apple has little support. The Pew Research Center poll’s only significant demographic not on the FBI’s side is left-leaning independent voters. One would naturally expect that Bernie would join his fellow left-leaning independents and come out on Apple’s side, but feeling the spotlight of the presidential campaign, he instead waffled:

“There has got to be a balance. But count me in as someone who is a very strong civil libertarian who believes we can fight terrorism without undermining our constitutional rights and our privacy rights.”

Now, in Mr. Authentic’s defense, Hillary waffled too—but we expect that from the candidate who sold her soul to the political underworld long ago.

The GOP candidates, never the sort to miss an opportunity to seize power from anyone without “Inc” in their name, uniformly weighed in on the side of truth, puppy dogs and the Hooverites. But leave it to the Bloviating Billionaire© to strike a perfect Reality TV pose going even further in calling for a boycott of Apple until they comply with the court order. In this 2016 edition of politics as sport, Trump is proving that he is indeed no mere apprentice.

I know that the Curmudgeon often sounds like a phonograph with the needle stuck in a groove, but there are certain big issues that permeate our entire national political morass. A quantitative graph of our collective tolerance for the vacuous discourses of these frauds playing us for fools would be a century old exponential curve.

The American affinity for the sound bite waxes strong.

In some ways I am more hopeful today than in recent memory that the twitterification of America can be reversed: there are numerous new-media sources succeeding with long form presentations and discussions on important social, legal and political topics. In spite of this positive trend, this Curmudgeon senses that we are still a long way from the content of a candidate’s ideas influencing more votes than their 140 character rejoinders.

It seems I am doomed to disenfranchisement for a while yet.

As an ardent civil libertarian, I am happy that Sanders at least stakes out some ground around which to defend our freedoms—as far as it goes. It is certainly nothing new to hear political elites give liberty some lip service. Virtually no American running for national office will campaign on a platform to alienate that which was formerly inalienable.

But voters seem unwilling to confront the reality that our upper caste rarely fails to say one thing while doing another. Sound-bite politics is a messy thing and Americans are peculiarly averse to holding their gladiators accountable for their words and deeds.

I applaud Tim Cook for his (smallish) stand against the accelerating over-reaching of our government. We need this reminder with awareness of the threats waning as Edward Snowden recedes further from the headlines. These politicians campaigning for leadership of the free world have made it clear that they have little care for your and my liberty. They only superficially acknowledge the competing issues that the FAQ I recommended above made clear.

As I said, this is nothing new. The hard question for you, Dear Reader, is whether our fellow Americans will ditch the newspaper, drill down deep, and remember. Whether you will remember the election rhetoric and promises.

This American will never forget their misdeeds.

jacksonian democracy

Lost amidst the Michael Jackson trial headlines was news that the Senate Select Committee on Intelligence in closed session last week approved legislation to reauthorize and expand the Patriot Act. The level of citizen concern over reauthorization compared to interest in the Thriller acquittal is almost as disconcerting as the proposed legislation.

News stories on reauthorization are sadly scant. If you are one of those whose legal curiosity extends beyond local criminal matters and into the erosion of our civil rights legacy, perhaps you will find this resource helpful in locating a few of the limited stories on the subject.

It is very tempting to rehash the old arguments against the wisdom of the original Patriot Act. Tempting because the arguments are incredibly strong and nearly irrefutable to those that practice the arcane and nearly lost art of deductive reasoning. But the irresistible morsel of the moment for me is the opportunity for an I-told-you-so.

The last time around the patriotic block there was some discussion of what lawyers refer to as a “slippery slope”. Slippery Slopes abound in legal tomes and it is perhaps unfortunate that such an important idea is encapsulated in such ordinary and seemingly familiar language.

Perhaps if there were a grand term such as “res ipsa loquitur” to describe the process by which certain detrimental changes in the law gather momentum and sometimes crush the spirit of the well-meaning originators, then we would not garner as much flippant ridicule. While the term may be inappropriately ordinary, the phenomenon in this case is as real and present as it was predictable.

What is telling now is the total absence of discussion of whether the original Patriot Act was constitutionally permissible. It appears that to the extent that the reauthorization debate gets visibility, the reauthorization discussion is going to center around making the act permanent and the expansion of the powers granted.

We have slid down this slope in an entirely foreseeable fashion.

It is hard to know with certainty whether the present intention of the politicians is simply another naked power grab or clever political posturing to attempt to move the center of the debate farther toward the totalitarian end of the scale. Perhaps it is some of both. Either way, the essential Constitutional questions have been taken off the table.

The despair is almost enough to send me to the tabloid rack to get the latest on Michael Jackson too.

The powers that are sought in Patriot Redux truly are as seedy as the most lurid tabloid. The FBI’s desire for these powers is conveniently packaged as necessary for fighting terrorism. But in truth, the FBI has long desired the power to issue administrative warrants to circumvent the need for judicial review for what we would have referred to as 4th Amendment searches in days of antiquity.

By playing the terrorism fear card, Hoover’s boys will undoubtedly get their wish.

The argument usually goes something like “the government needs this power because it is too burdensome to go to a court to obtain a warrant”. Warrants, so they claim, consume too much time and energy for effective law enforcement. The problem with this argument is that it can be used to justify almost any form of civil rights infringement you can imagine. All of our Constitutional protections are burdensome on the government. There are more than a few prosecutors that would love to dispense with a trial because of the undue burden.

But, there is little doubt that there are some situations where it is difficult to obtain a warrant in a useful time frame. Truly, I do wish to help out law enforcement by addressing the genuine requirements of a tough job.

The answer, however, is not to eviscerate our civil liberties, but to make the warrants easier to obtain. It is little known by the general public, but the law has long allowed emergency warrants to be issued by a judge over the phone. That the fact of this real and potential flexibility is never a part of the discussion should give all of us insight into the insidious disinformation campaign that is being waged against our Liberty.

Of course, you will never hear the simple idea of hiring more judges and making minor tweaks in the law. The politicians have an agenda and it has nothing to do with protecting you and me. Does anyone seriously doubt which choice the American people would make if actually given the opportunity? Would anyone assert that the better choice is surrendering to the government the right to molest our privacy without cause rather than incurring the expense of hiring a few hundred more judges to guarantee ready access to an independent deliberative body?

An adequately informed public would render the very question rhetorical.

Our faint hope is that it appears to be more fashionable these days to oppose the President than during the previous legislative rubber-stamping extravaganza. Perhaps the Democrats will smell electoral blood in the water and actually mount an opposition to reauthorization.

But given the tepid response of the American people to reauthorization, I will be surprised if legislative opposition goes beyond trying to prevent the expansion of the Patriot Act Powers. Other issues appear more electorally profitable. The politicians totally get it: Americans do not care about civil liberties as long as the government manages to present the illusion of relative Safety. A moment of national reflection on the wisdom of surrendering six centuries of accumulated personal sovereignty does not seem likely.

Have no doubt: this is one time when we will definitely get what we asked for.

Michael, whatever you do, please don’t move Neverland to Africa: at times like these I really need the distraction.

evil in our midst

It was said on September 12, 2001 that “everything changed” on 9-11. This Curmudgeon, for one, never ascribed to that notion. The only thing that really changed that day was the level of awareness of the American people as to the risks and challenges that lay ahead of us. The increased awareness is of course a good thing-unless the awareness turns into panic.

And panic we did over the knowledge that those who would attack The Home Of The Free are already here in our midst. The terrorism hysteria manifested itself in the atrocious piece of legislation known audaciously as “The Patriot Act”.

Never in our history since the Alien and Sedition Acts have we been quite so cavalier in our attitude toward the Constitution. Certainly we have had other Chief Executives that bent and fractured their oath to defend the Constitution, but what stood out during the Patriot Act rubber stamping extravaganza was the Silence of the opposition. That Congress put up no fight whatsoever against warrantless searches and indefinite detention of suspects without charges is unconscionable.

I have been a strident critic of the Executive and Legislative branches of our government which rushed to grab power and placate fears with no regard to our Constitution and legacy of Human Rights, but it is an interesting question of whether the harm done by the Patriot Act is permanent or something more transient. It will be decades before we know the answer to this question, but I for one will be surprised if the damage done by allowing Congress to expand its powers in such a grandiose fashion disappears into the legislative sunset. My hunch is that the legal briefs have already been written that rely on the historical and legal precedent that Congress may use emergency powers to re-write our fundamental Constitutional protections in whatever manner they see fit. And of course if the Congress can do it in an emergency, then really “We the People” have not retained that inalienable right after all.

But I wish to lay aside the matter of whether the undoable can be undone and for a naively optimistic moment assume that reason and sound jurisprudence will return to our public discussion. It has been suggested to me that our time would be well spent to debate as a nation exactly where we will head and what we will tolerate when the “next 9-11” inevitably hits. I too think that would be wise, so here is my short contribution to the debate.

Technology is steadily eliminating what little privacy we have and in my view, we must resist all attempts to relax the proscriptions against government intrusion into our lives. Of course that piece of rhetoric, left to stand on its own, neatly side-steps the question of how permissible and impermissible intrusion might be defined, but I wish to pause on this basic point just the same.

Pause to simply point out the simple truth that Government, unfettered by Constitutional strictures, tends to accumulate power and to oppress its citizens. History is rife with examples of this axiom and our founders sought to protect its posterity from this fundamental tendency toward the accumulation of power. Our socio-legal system consists of a fine balance between the needs of the individual and those of the larger society. What is unique in our Republic is that we recognize the legal supremacy of individual liberties as a counterweight to the excesses of a government nominally pursuing the “general welfare”. This bit of genius is a big part of what has made America different and we should not abandon these fundamental precepts lightly.

But, on to specifics. What should be permissible police investigation in a nation that also recognizes extraordinary threats that are internal? My answer is simple: anything with a warrant. Anything where an officer of the law can make the case for “Probable Cause” to an independent judicial body. I for one do not buy the argument advanced by the hysteria generating political class that warrants are too burdensome. This simply does not pass the smell test. No matter how many times the Attorney General might repeat this lie, it will not make it true.

It is well established in our jurisprudence that warrants may be obtained under exigent circumstance through a phone call to a judge. I am not being novel or unrealistic when I suggest that this method for obtaining warrants can and should be expanded to assist in the fight against terrorism. Far better to add enough judges to the bench to make them accessible than to throw out the Fourth Amendment in a fevered rage. Frankly, this is so obvious and reasonable that I am stunned that we seldom hear it advanced. So much for our “leaders” who claim to care about civil liberties and who are sworn to defend the Constitution.

We hear much of data mining as well and it is suggested by some that data mining is new and distinct from sifting other forms of information. My Grandma had a technical term for that type of assertion: hogwash. Data is nothing but facts reduced to digital representation. It is a logical fallacy to suggest somehow a fact on a piece of paper in someone’s possession is ontologically different because it has been digitally recorded and is easily obtained. The key is in “easily obtained”. The desire for unfettered data mining is driven by the reality that it is easier than real police work.

I am not suggesting that data mining will not work. On the contrary, I understand that it can be a very effective tool for fighting all sorts of crimes. The problem I have with it is the cost to our liberties. This is a classic “slippery slope” from which there is no climbing back up. Can anyone doubt that once this “data” is accumulated that it will not be preserved forever no matter how unwise we might deem it to be in retrospect?

But only by looking at this from a philosophical perspective does this become truly terrifying. If we allow unfettered data mining, gone are the protections afforded us by the legal requirement of “reasonable suspicion”. Instead, we have entered a new and fundamentally different world where no suspicion whatsoever is required to investigate your purchases, education, or reading habits.

And if you believe the Attorney General’s statements to the effect of, “well, we just won’t use these powers in that way”, then you need to see your doctor about adjusting your Prozac prescription.

It doesn’t sadden me so much that there are few people who view such governmental over-reaching with outrage. What really depresses me is that there are precious few who even recognize that there are issues here worthy of discussion. These are matters that would have put previous generations in a complete uproar, but contemporary America is just rolling over and accepting it without real discussion.

Such is the end result of the dumbing down process our country has undergone over the last few decades. We are dumbed down to the point that a surprising number of Americans actually think that Shrub is a bright and honest guy.

There is indeed evil in our midst and something must be done. Determining that something to do gets difficult though when one understands that the evil is not alien to our society after all.

Exceedingly difficult when the evil turns out to be us.

unable to turn the other cheek

There are a few things that I just have trouble forgiving. While I am not exactly cheering the medical difficulties of the Attorney General, I don’t exactly find myself brimming with sympathy either.

That some conservatives just don’t get how some of us can have such contempt for the man as is evidenced by the diatribe that inspired today’s Curmudgeon entry. Hopefully, I can shed some light.

You see, I don’t take being called a traitor lightly. I remember well listening to the AG’s speech on the radio and hearing that accusation hurled at me. I turned the radio off within a few moments of hearing this outrageous venom spewed:

[T]o those who scare peace-loving people with phantoms of lost liberty; my message is this: Your tactics only aid terrorists—for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies, and pause to America’s friends. They encourage people of good will to remain silent in the face of evil.

You see, the farcically named Patriot Act had already riled me up but until this moment, I viewed the law as merely a typical political reaction to the American public’s cry for action. Being accused of using tactics to aid terrorist because of harboring a reasonable viewpoint on civil liberties took my concern to a whole new level: Ashcroft was declaring a war on political dissent. The ensuing months did nothing to quell my fears that our government was asserting its power to ignore the limits imposed by the 4th Amendment.

But of course the “Real Patriots” know best.

According to the diatribe, We civil libertarians apparently are just ordinary ingrates. We do not realize our own “unmitigated insipidity and apathy” and “what this man and his department have done to protect [our] right to be free, safe and stupid.” The temptation here is to argue with this schlub on the merits, but it is more significant that this basic mantra is bought by so many well meaning people. I remember well having a discussion sometime during the Patriot Act rubber stamping extravaganza wherein somebody said to me, and I paraphrase, “well, you may not be interested in protecting yourself but I am, so stand back and let those who know what’s good for you take care of business.”

It is almost funny that people think I am that stupid. Really, I don’t drool profusely or watch Professional Wrestling. Honest.

Here is the point: I am quite capable of balancing the risk of my harm at the hands of terrorists and the risk of my harm at the hands of my own government. I may make that assessment differently than you do, but it doesn’t make me stupid or unpatriotic. It might seem shocking to you to know that many of us civil libertarians are in fact among the most patriotic people you can find. Our patriotism is rooted in those civil liberties that we purport to hold so dear and I don’t see near the passion coming from the conservative ideologues that I do from the libertarians.

In the unlikely event that I made some of you feel a tad guilty for labeling me a stupid traitor, please rest assured that your guilt is entirely unnecessary: I have in the past labeled you as stupid in your cavalier willingness to throw away the civil liberties bravely wrested from the Monarchs over the last six centuries. But at least I didn’t call you a traitor like the Attorney General called me.

One irony is that though I never supported Ashcroft’s boss, I was on Ashcroft’s side during the Senate confirmation imbroglio. I thought at the time that confirmation was being unreasonably withheld because based on his record, he seemed qualified even if he wouldn’t be my choice. The Senate’s job is to advise and consent-not to tell the President what viewpoints are acceptable for what jobs.

In retrospect, perhaps the good Senators knew a thing or two that I did not.