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Why I oppose CISPA
My message to my Senators was as follows:
The Fourth Amendment says “the right of people to be secure in their persons, papers and effects against unreasonable search and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.” This law does not make sure people are secure in their persons, papers and effects. This law makes such aspects insecure. Uphold the Constitution as you affirmed in your swearing in. I urge you to vote down this law to uphold the purpose of the amendments to the U.S. Constitution, to prevent an abuse of governmental powers. -
30,000 secret surveillance orders approved each year, judge estimates | If the government spies on you but brings no charges, you'll never know. →
(Photo Credit: Jonathan McIntosh)
A federal judge estimates that his fellow federal judges issue a total of 30,000 secret electronic surveillance orders each year—and the number is probably growing. Though such orders have judicial oversight, few emerge from any sort of adversarial proceeding and many are never unsealed at all. Those innocent of any crime are unlikely to know they have ever been the target of an electronic search.In a new paper, called “Gagged, Sealed & Delivered” (PDF), US Magistrate Judge Stephen Smith bashes this culture of continuing secrecy. (Magistrate judges are important members of the federal judiciary; they handle many of the more routine judicial matters, such as warrant applications and initial case management.) In his work as a judge, Smith has become dismayed by the huge number of electronic surveillance orders he sees and by the secrecy that accompanies them.
When police execute a traditional search warrant, they generally bring with them a copy of that warrant and show it to the homeowner or target of the search. That’s not always the case, of course; sometimes warrants remain sealed while a case is in progress so as not to tip off a suspect.
But when surveillance enters the digital realm, secrecy becomes the norm. Digital “warrant-like” requests to access stored e-mail in an online account, or to wiretap an Internet connection, or to obtain “pen register” information, or to track a cell phone, are obtained from magistrate judges, many times in secret dockets that don’t even appear in the federal government’s official PACER document system. They come after one-sided (“ex parte”) proceedings in which only the government is heard. And they are generally sealed, only to be unsealed once a criminal case is filed. If no such charges are ever brought, the search warrants and the affidavits defending them can remain buried in the murkiest bits of the federal court system; even knowing that they exist can be a challenge. ISPs, which are often targets of such orders, may also be forbidden from disclosing them.
Most of this surveillance is governed by the Electronic Communications Privacy Act (ECPA) of 1986–a law so in need of reform that digital rights advocates and corporations alike have made it a key legislative priority. ECPA provides a host of tools to keep searches secret—so secret that they effectively avoid appellate review, making it difficult to know whether they are being properly issued.
Through a potent mix of indefinite sealing, nondisclosure (i.e., gagging), and delayed-notice provisions, ECPA surveillance orders all but vanish into a legal void. It is as if they were written in invisible ink—legible to the phone companies and Internet service providers who execute them, yet imperceptible to unsuspecting targets, the general public, and even other arms of government, most notably Congress and the appellate courts.
Judge Smith set out to find out how much ECPA surveillance exists in the US. Precise numbers were impossible to come by, even for one of the judges involved in issuing such orders, but Smith combined an earlier government survey with data from his own court’s docket to produce what sounds like a reasonable estimate.
His estimate finds that 50,000 sealed orders were likely generated by federal judges in 2006, the year the judge analyzes. With 60 percent of these presumed to be ECPA-related surveillance orders, Judge Smith finds that magistrate judges issued more than 30,000 secret electronic surveillance orders that year. To put that in context, “this volume of ECPA cases is greater than the combined yearly total of all antitrust, employment discrimination, environmental, copyright, patent, trademark, and securities cases filed in federal court,” he notes.
Smith isn’t calling for the abolition of surveillance or anything too terribly radical. He understands why notice of a warrant may be delayed—but he wants the system made far more accountable.
Perfect transparency in criminal investigations is neither practical nor desirable, but ECPA’s present system of gagging and sealing is surely overkill. If my diagnosis—that ECPA’s regime of secrecy has choked off the oxygen of appellate review necessary for a healthy regulatory scheme—is correct, then the cure is relatively straightforward: open up the information arteries. Greater transparency would enable meaningful oversight not only by appellate courts but also by Congress and the general public.
One simple way to do this would be to open sealed warrants automatically after some period of time. At the moment, most warrant orders are sealed indefinitely, only being unsealed if a prosecutor or investigator in the matter bothers to go back to the judge and bring up the issue. In Smith’s own “home court” in Houston, magistrate judges issued 3,886 sealed electronic surveillance orders between 1995 and 2007. In 2008, 99.8 percent of them still remained sealed.
That’s especially bad news for those never charged with a crime, who will probably never learn that they were a target of government surveillance. And that number isn’t trivial. Smith estimates, based on some limited data released by the Department of Justice, that it’s “reasonable to infer that far more law-abiding citizens than criminals have been tracked in this fashion.”
The situation, says Smith, is bad for democracy and for a transparent judiciary. Fixing it will be up to Congress, which has to decide where to draw the line between personal privacy and the needs of law enforcement. In Smith’s view, any fix “will require the elimination of ECPA’s current gag, seal, and blindfold.”
Do the creators of this program remember the 4th amendment?
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (I bolded the pertinant parts).
But we must remember what Howard Zinn said in his bestseller, A People’s History of the United States:
“The Constitution became even more acceptable to the public at large after the first Congress, responding to criticism, passed a series of amendments known as the Bill of Rights. These amendments seemed to make the new government a guardian of people’s liberties: to speak, to publish, to worship, to petition, to assemble, to be tried fairly, to be secure at home against official intrusion. It was, therefore, perfectly designed to build popular backing for the new government. What was not made clear-it was a time when the language of freedom was new and its reality untested-was the shakiness of anyone’s liberty when entrusted to a government of the rich and powerful.” (bolded pertinent parts)
(via occupyla)
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What is “the militia”? It is the whole people. To disarm the people is the best and most effectual way to enslave them.
– George Mason. Suck it, Democrats. Now you can’t say the Second Amendment is ambiguous. (via leftybegone)No, the militia is basically the national guard of each state. Most people would agree they have a right to bear arms: “…the right of the people to keep and bear arms will not be infringed.”
(via talkstraight)
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If a majority should deprive a minority of any clearly written constitutional right, it might, in a moral point of view, justify revolution.” -Abe Lincoln
–(via mirandamariex329)
That’s a radical statement from a man that started the national banking system in America (National Banking Acts of 1863 and 1864). So, he is justifying the civil War because taking the power to coin money away from Congress is the majority depriving the minority of a constitutional right. In another sense, this justifies sorts of revolutions now.
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The lawmaking amendment
Section 1. Article I, Section 7, Clauses 2 and 3 are hereby repealed.
Section 2. Every bill that shall have passed or been introduced in the certain committees of the respective house of Congress shall be recorded in Congressional records, which shall be in the House of Representatives and the Senate; a bill will need fifty-one percent of the respective house determined by votes of Nays, Yays or Abstainations to pass; if a similar bill is passed in another house the bills passed shall be combined in a joint conference committee; if no similar bill is introduced in the other house, the house shall pass the bill that was introduced in the other house which would be the House of Representatives or the Senate; once this process is completed, the Congress shall present the bill to the President.
Section 3. The President shall veto a bill or if Congress adjourns for ten days and the President does not sign it the bill will not become law; if the President does not sign the bill within ten days of it being passed by Congress, the bill shall become law; A vote of 51% in both houses of Congress will be sufficient to overcome a veto by the President; a bill becomes law when the President signs it and once it becomes law the President cannot ignore it through any means, such as signing statements, just because the law does not go with their beliefs; the President is authorized by his oath of office to enforce all the laws of the United States, no exception.
Section 4. Every vote in both houses shall be presented to the President; as he has the right to veto such legislation except for resolutions, that do have any lawmaking power but are rather the collective opinion of those in a certain house of Congress on an issue.
Section 5. Congress shall have the power to enforce this article by appropriate legislation.
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We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.
– Abraham Lincoln is right, highlighting the debate between those that want to interpret the Constitution in different ways. -
Supreme Court sides with the cops in warantless search case
The article “Justices side with cops in warrantless search case: Pearson v. Callahan,” details how the Supreme Court unanimously sided with police officers in Millard County, Utah, who entered a mobile home without a search warrant in 2002. According to the article, an undercover narcotics agent went into a house and bought methamphetamine (meth) from Afton Callahan. Then the agent signaled the Utah police to come in and arrest Callahan for possession of meth. As a result, Callahan filed a civil suit against Milliard County and its police officers for violating his fourth Amendment rights. This started a chain of event through the court system, which went up to the Supreme Court.
In the first link of this chain of events, Callahan lost in district court but won in the state Court of Appeals who said that it was unconstitutional for police to enter the home. The U.S. district court said that the police officers had immunity under the “consent-once removed” exception which means that when an undercover officer enters they can call police for assistance. The U.S. Court of Appeals in Denver reversed that decision. In addition the Supreme Court went along with the decision of the U.S. Court of Appeals but then took an odd step by asking both parties if the precedent in Saucier v. Katz (2001) should be overturned. The Supreme Court overturned Saucier v. Katz which caused the previous two-step process for immunity claims to be eliminated.
Privacy is Fourth Amendment issue that is at the heart of many legal arguments. Many Americans recognize that they have privacy and safety from warrantless searches. But, this can be deceiving. According to what I have learned, the Fourth Amendment is limited—there are many exceptions to it. For example, if someone is in danger, there is a cause to enter a house. Pearson v. Callahan relates directly to issues being discussed today because it touches on a number of issues concerning the fourth Amendment.
I think that the police should not enter one’s house unless they have a warrant. Entering a house without a warrant clearly violates the Fourth Amendment even if you have probable cause. I believe that only if there are exigent circumstances, chasing a criminal or getting consent to search should one enter a home. Finally, I believe that justices, judges and jurors should take a new view of the fourth Amendment by requiring warrants.
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TRANSCRIPT: “I believe in the American Constitution. I follow the American system of Individualism and I am opposed to any general extension of government ownership and control.” (If I have the transcript wrong I’m sorry. I tried my best to listen and write what he was saying)
My friends, this is what we are up against. This is the philosophy of those that are on the right mainly. I mostly believe the opposite as Coolidge but I wanted to show the other side of things. I do believe in the American Constitution and I like the American system of individualism, but I am support extension of government control in certain circumstances (not to violate civil liberties or to unbalance the separation of powers) but certain measures that benefit the people such as the EPA to regulate greenhouse gases and the FCC to regulate the airwaves.
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Six ways the President has expanded beyond his Constitutional base
1. ‘Congress shall have the power…to declare war…to raise and support armies…to provide and maintain a navy…’(Article 2, Section 8) “Congress would be the only part of government that can start a war. However, some people argue the President has certain war powers as possibly mentioned Article 2 Section 2. Nowhere in the passage does it even hint at the power of the President to unilaterally go into war without Congressional authorization.” (http://bit.ly/hh32wf)
2. The ability to sign executive orders that act as laws to bypass Congress. This hasn’t been used much in the past 10 years, but it has been used to bypass approval by Congress.
3. Inherent powers, do certain actions in interest of “national security” including violating the Constitution (PATRIOT Act, listening in on Americans to protect from terrorism even though the Supreme Court said it was illegal).Some say they have the power to suspend laws in “wartime.”
4. The Bush Administration has demanded that presidential wartime powers permit the President to assume complete control over any and all aspects of an international war on terrorism.
5. Presidents have claimed for themselves certain powers that they feel are granted to them under Article II of the U.S. Constitution.
6. Many President have said they have power of immunity from legislative oversight, since the beginning of the Cold War if not eariler, this power has been asserted -
Enduring Traditions and Emerging Challenges
Since the first civilizations, there have been laws to control social unrest. Although many new challenges have arisen in the 21st Century, none is more potent than the expansion of terrorism
, particularly by Muslim extremists. The preamble of the U.S. Constitution says the American people must “provide for the common defense.”We as an international community cannot accomplish this unless we fight terrorism where it thrives.Terrorism presents the major challenge of our era because terrorists use our industrialized tools against us, including airplanes, the internet, and mass communication, while ignoring the laws of democracy that have enabled our civilization to thrive and create these industrialized tools.Law is ever-evolving. Legal scholar Alan Dershowitz says in his book, Rights From Wrongs: A Secular Theory on the Origins of Rights, that all good law originates not from religion or nature nor from a stubborn protection of our enduring traditions but from emerging challenges. So, how do we address the promise of the U.S. Declaration of Independence that endows people with certain “unalienable rights,” including life, liberty, and the pursuit of happiness with the everyday threat of terrorism?
I believe we must continue restricting some civil liberties to fight terrorism because it is in the interest of the common good to fight those who do wrong.Terrorism is one of the worst crises the world has ever faced.
Islamic radicals want to wipe us off the earth because they do not respect our basic traditions of law.Unless we fight them, our legal traditions will disappear and the world will become more lawless with fewer ways to control social unrest.As a world, we must act quickly and decisively by striking terrorism at the source. We must renew our commitment to the enduring principles of law by enacting new laws.These laws would lengthen the sentences of terrorists, make harsher punishments and use the government’s power in mass communication to make it more difficult for terrorists to use the technology that the industrialized world created.As an international community, we need to have these laws implemented on an international scale by passing a resolution through the General Assembly of the United Nations.Then, we need to bring the accused terrorists to the International Court of Justice in the Hague. The world must follow a diplomatic route of dispute resolution to maintain order and communication. Finally, as an international community, we must fight terrorism in unstable countries by supporting their legal traditions and helping them with their emerging challenges.ADDENDUM AS OF JUNE 2012:
The real terrorists are the financial terrorists (as David McGraw says), not those abroad, as a result, certain parts of this article have been struck. I don’t support measures that make terrorists whoever they are subhuman. That shouldn’t and can’t be the American way. Civil Liberties must be defended in a time of terrorism, because otherwise that is unconstitutional and immoral to the 99 or 99.9%.
