Have nothing to do with the [evil] things that people do, things that belong to the darkness. Instead, bring them out to the light... [For] when all things are brought out into the light, then their true nature is clearly revealed...

-Ephesians 5:11-13

Tag Archives: Fourth Amendment

Today is the 71st anniversary of California’s illegal incarceration of Japanese

There is at least one comforting thought about this travesty of history: it’s highly unlikely to happen today, thanks to the internet. Back in February, 1942, beloved President Franklin D. got a pass when he signed Executive Order 9066 which initially authorized the Secretary of War (at least they called it War rather than Defense) to

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Hypocrisy from the NRA

The NRA has changed its position on background checks, or so it says. Wayne LaPierre, the National Rifle Associations CEO and PR front man, got lots of airtime responding to Mayor Michael Bloomberg’s announcement of his $12 million ad campaign to drum up support for the wave of gun controls washing over the Senate but being resisted by a recalcitrant few, according to Bloomberg. LaPierre said that Bloomberg “can’t

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Another Judge Rules National Security Letters (NSLs) are Unconstitutional

On Friday afternoon a federal district court judge ruled that National Security Letters (NSLs) are unconstitutional under not only the First Amendment but under the “separation of powers” principle as well. As Alex Johnson, a staff writer for NBC News put it, those NSLs are

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US District Judge Susan Illston rules in our favor!

Just when I was beginning to think that 1) all common sense had vanished from the public square and 2) that our privacy was inevitably and eternally to be violated by government snoops, along comes Judge Illston 

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BATFE Empowered to Override the Constitution

Seal of the United States Bureau of Alcohol, T...

Seal of the United States Bureau of Alcohol, Tobacco, Firearms and Explosives after it moved to the Department of Justice. (Photo credit: Wikipedia)

The Justice Department under Obama is no friend of the Second Amendment. It has just issued, on its own authority, a new rule allowing the BATFE (Bureau of Alcohol, Tobacco, Firearms and Explosives) to help themselves to your guns without a warrant. As Nita Chei, a writer at the Washington Times, explains:

The Obama administration is making it easier for bureaucrats to take away guns without offering the accused any realistic due  process. In a final rule published last week, the Justice  Department granted the Bureau  of Alcohol, Tobacco, Firearms and Explosives (ATF)  authority to “seize and administratively forfeit property involved in  controlled-substance abuses.” That means government can grab firearms and other  property from someone who has never been convicted or even charged with any  crime.

What this does is dispense altogether with the need for a search warrant as required under the Fourth 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.” Under the rule, the items to be seized are

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Where Did the Tea Party Republicans Go?

Wired - House Approves Sweeping, Warrantless Electronic Spy Powers

The House on Wednesday reauthorized for five years broad electronic eavesdropping powers that legalized and expanded the George W. Bush administration’s warrantless wiretapping program.

privacy

privacy (Photo credit: Sean MacEntee)

Where are the Tea Party Republicans on this one? This re-authorization of a law that should never have been passed in the first place (thanks, George, for that) passed the House by 301 to 118. Most of those voting against it were – ready? – Democrats!  Only seven Republicans mustered enough courage to say no to warrantless wire-tapping!

This is from the article in Wired.com:

The government does not have to identify the target or facility to be monitored. It can begin surveillance a week before making the request, and the surveillance can continue during the appeals process if, in a rare case, the secret FISA court rejects the surveillance application. The court’s rulings are not public.

So the whole fishing expedition is wrapped in secrecy.

Rep. Lamar Smith, a Republican from Texas, sponsored the bill, saying that it “is one of the most important votes we cast in this Congress” because “terrorists are committed to the destruction of our country.”

Question: what about the terrorists in Congress who are determined to shred what remains of the Constitution and the Fourth Amendment and turn the country into a dictatorship? As Pastor Chuck Baldwin just wrote in his weekly newsletter:

Think of it: in the name of the 9-11 attacks, the United States is being transformed into the kind of despotic countries that we are told we are being protected from!

There was at least one small voice for common sense, expressed by Rep. Zoe Lofgren – a Democrat from California! – who said: “I think the government needs to comply with the Fourth Amendment to the Constitution all the time [what a concept!]. We can be safe while still complying with the Constitution of the United States.”

Accurate and persuasive. But not enough to persuade the Tea Partiers to vote against it.

Tossing the Fourth Amendment Under the Cell Phone Tracking Bus

Paul Lilly: Appeals Court Empowers Police to Track Suspects by Cell Phone Sans Warrant

Privacy advocates aren’t going to like this one, but a 2-1 ruling in the U.S. Circuit Court of Appeals for the Sixth Circuit has given law enforcement officials the legal right to track suspects by cell phone in real-time without first obtaining a warrant.

New phone

New phone (Photo credit: fd)

This is how the Fourth Amendment is undermined: ignore what it says, set up a straw man argument, and then argue against that straw man.

The straw man the court used was an analogy of hounds chasing a fox. The fox cannot be protected under the Fourth Amendment just because the Fox didn’t know he was providing the hounds with his scent.

Here is what the court wrote:

This is not a case in which the government secretly placed a tracking device in someone’s car. The drug runners in this case used pay-as-you-go (and thus presumably more difficult to trace) cell phones to communicate during the cross country shipment of drugs.

Unfortunately for the drug runners, the phones were trackable in a way they may not have suspected. The Constitution, however, does not protect their erroneous expectations regarding the undetectability of their modern tools.

Let’s look at what the Fourth Amendment to the Constitution actually says:

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.

Let’s be picky. “No Warrants shall issue, but upon probable cause…”  Where does it say, “except when tracking by cell phones?”  “Supported by Oath or affirmation.” By a judge, having looked at the evidence, and deciding that there is “probable cause.” Where is that in the court’s decision? Oops, missing.

And what about “particularly describing” the place to be searched, and the persons or things to be seized?” Did the officers know in advance that they would find 1,100 pounds of marijuana in his motor home? Or was that just luck?

Here’s the outrage, from the court:

The Constitution, however, does not protect their erroneous expectations regarding the undetectability of their modern tools.

What is that?

Big Brother is Watching Everyone Doing Everything

Judge Andrew Napolitano: Gazillions

Gazillions. That’s the number of times the federal government has spied on Americans since 9/11 through the use of drones, legal search warrants, illegal search warrants, federal agent-written search warrants and just plain government spying.

Drone During Storm

Drone During Storm (Photo credit: Truthout.org)

This is bad enough. And it confirms what we conspiratorialists (yep, that’s me!) have been saying for years. As my good friend Jeff Wright says, if “they” have the technology to spy on us, “they” will use it, regardless.

What’s truly horrifying is the other point Napolitano is making, and that is that Senator Paul isn’t able to tell his citizens what he knows: it’s against the law!

Here’s how the good judge explains it:

The rules for classified briefings of members of Congress on areas of government behavior that the government wants to keep from its employers—the American people—are a real Catch-22. Those rules allow representatives and senators to interrogate government officials about government behavior that they are afraid to reveal, and they require those officials to answer honestly and completely. But the rules keep the interrogations secret, and they expressly prohibit members of Congress from telling anyone what they have learned.

So Paul and his colleagues who joined in the secret briefing now know the terrible truth about the government watching us, but they cannot reveal what they know. Paul—who is the son of Rep. Ron Paul, the greatest congressional defender of limited government in our era—when asked what he learned at these secret briefings and aware that he could be prosecuted for telling the truth, chose a fictitious word to describe the vast number of violations of privacy at the hands of federal agents: gazillions…

The point here is terrifying. If the government derives its powers from the consent of the governed, how can it do things to us to which we have not consented? And when it does these things—like send a drone over your back yard to learn who is coming to your Saturday barbeque or to see what fertilizer you are using in your vegetable garden or to take a peek into your living room or bedroom—and when the laws the government has written prevent our elected representatives from telling us what it is doing, we are at the doorsteps of tyranny.

Indeed we are.

Senate Defeats Cybersecurity Act, No Thanks to Colorado

Electronic Frontier Foundation: Victory Over Cyber Spying

This morning [Thursday, August 2nd], the US Senate defeated the Cybersecurity Act of 2012, a bill that would have given companies new rights to monitor our private communications and pass that data to the government. The bill sponsors were 8 votes short of the 60 votes necessary to end debate on the bill (vote breakdown here). This is a victory for Internet freedom advocates everywhere.

EFF_logo_notype_whiteWe need victories like this.

The Cybersecurity Act failed because debate couldn’t be ended, and that essentially iced the bill. What’s interesting is the gaggle of lefties who decided, some at the last minute, to abandon their support for the bill. Here is a list of some of them, along with their Freedom Index rating (courtesy The New American) which rates each Senator’s voting record based on how closely they hew to the Constitution. A 100 is perfect, a 0 is complete and total disregard for the Constitution and its limitations on the federal government.

Here they are:

Wyden opposed the bill “on privacy grounds,” according to the EFF. Said the liberal Senator:

Today’s vote was one in which Senators were asked to sacrifice Internet users’ privacy and civil liberties for weak proposals to improve cyber security. I voted no.

Here’s a guy who supports legalized abortion, gun control and gay marriage, among other things, and who is considered a “hard core liberal” by the feminist magazine On the Issues. And yet, apparently, the pressure to do something right for a change was just too great. Says the EFF:

Pressure from civil liberties groups and Internet users didn’t just defeat the bill—it changed the conversation around cybersecurity in fundamental ways…

While the bill still had big problems, there were new privacy protections such as limitations that prevented data collected for cybersecurity purposes from being used to prosecute unrelated crimes. Those privacy protections were created as a direct result of pressure from the netroots.

Of course, the two Democrat Senators from Colorado, Bennet and Udall, voted for the bill. Their Freedom Index ratings are 17 and 20, respectively.

Senator Rand Paul’s Bill to Protect Citizens From Drone Surveillance

U.S. Predator drone flies over Kandahar Air Field

U.S. Predator drone flies over Kandahar Air Field (Photo credit: AN HONORABLE GERMAN)

When Senator Rand Paul (R-Ky.) introduced his bill in June, he was responding to growing concerns over privacy by American citizens. The purpose of his bill is elegantly simple: “To protect individual privacy against unwarranted governmental intrusion through the use of unmanned aerial vehicles commonly called drones.” Paul’s bill is very specific:

[A] person or entity acting under the authority [of], or funded in whole or in part by, the Government of the United States shall not use a drone to gather evidence or other information pertaining to criminal conduct or conduct in violation of a statute or regulation except to the extent authorized in a warrant that satisfies the requirements of the Fourth Amendment to the Constitution of the United States.

Paul explained that “Americans going about their everyday lives should not be treated like criminals or terrorists and have their rights infringed upon by military tactics.”

One of those claiming to have had his rights infringed upon is Rodney Brossart of Lakota, North Dakota, who is “the first American citizen to be arrested with the help of a Predator surveillance drone,” according to USNews. Brossart’s troubles began in 2010 when six cows

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Privacy-Eliminating CISPA Awaits Fate in the Senate

Stop CISPA

Despite an increasingly noisy chorus of resistance to many of its provisions, the Cyber Intelligence Sharing and Protection Act (CISPA) passed the House, 248-168, on April 26. Passage in the House was assured with more than 70 percent of those supported by the Tea Party voting for it. It moved to an uncertain future in the Senate.

That opposition noted that the bill’s many flaws included precious little “protection” for rights guaranteed in the Bill of Rights, especially those guaranteed by the Fourth 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.

In the zeal to “protect” the country against “cybersecurity threats,” Internet providers and other communications companies would be allowed to share their customers’ private information with agencies of the federal government, and vice versa. As Techdirt’s Leigh Breadon explained,

[The] government would be able to search information it collects under CISPA for the purposes of investigating American citizens with complete immunity from all privacy protections as long as they can claim someone committed a “cybersecurity crime.”

Basically it says the 4th Amendment does not apply online, at all.

Republican presidential candidate Ron Paul said virtually the same thing in his opposition to CISPA:

CISPA permits both the federal government and private companies to view your private online communications without judicial oversight [as required by the Fourth Amendment] provided that they do so of course in the name of cybersecurity.

The bill is another heavy-handed effort to expand government’s surveillance of private citizens’ communications without restraint. By using words such as “may” instead of “must” and “cybersecurity” without defining the term, the bill creates just the sort of opening through the Fourth Amendment that has, until now, largely

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Policing for Profit in Tennessee

Asset ForfeitureWhen George Reby was pulled over for speeding in Putnam County, Tennessee, little did he know it was going to cost him $22,000 despite never being charged with a crime.

An insurance investigator from New Jersey, Reby was driving down Interstate 40 on his way to a convention. He had $22,000 in cash with him, rolled up in 22 $1000 packages in a bag, which he intended to use to purchase a car that he had found on eBay. From the video provided by NewsChannel 5 in Nashville, Reby was stopped for speeding and the following conversation between Reby and Office Larry Bates took place:

Bates: Are you carrying any cash?

Reby: Around $20,000.

Bates: Do you mind if I search your vehicle?

Reby: No, I don’t mind.

From there it all went downhill. Bates seized the money under the suspicion that Reby might be planning to use the money to purchase illegal drugs. When interviewed by NewsChannel 5, Bates was asked why he was suspicious: 

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The DoJ Wants to Track Your Smartphone Without a Warrant

Artist's impression of a GPS-IIRM satellite in...

In its relentless never-ending quest for more power to track and follow American citizens through their smartphones, the Department of Justice (DoJ) requested last week that Congress give them easier access to location data stored by cellphone service providers.

Jason Weinstein, a deputy assistant attorney general in the Department of Justice’s criminal division, argued that requiring a search warrant to gain such access would “cripple” his department’s efforts to investigate crime and criminals. Said Weinstein,

There is really no fairness and no justice when the law applies differently to different people depending on which courthouse you’re sitting in.

For that reason alone, we think Congress should clarify the legal standard.

In other words, because the laws protecting privacy vary somewhat depending upon where an individual citizen lives, Congress should come along and override them all and provide a federal, looser standard, all in the name of security.

The increasing sophistication of cellphone and communications technology in general allows service providers to track virtually every movement of an individual, day or night, at home or work, in a bar or on a golf course. Malte Spitz, a German politician and privacy advocate, obtained his own

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CISPA Assumes Too Much Trust in Government

iPad tablet

In a surprise move the White House issued a statement on Wednesday threatening to veto CISPA (Cyber Intelligence Sharing and Protection Actbecause of privacy concerns. Parts of the statement sounded as if they had been drafted by Republican presidential candidate Ron Paul:

The sharing of information [between private agencies and the federal government] must be conducted in a manner that preserves American’s privacy, data confidentiality, and civil liberties and recognizes the civilian nature of cyberspace. Cybersecurity and privacy are not mutually exclusive…

[CISPA]…repeal[s] important provisions of electronic surveillance law without instituting corresponding privacy, confidentiality, and civil liberties safeguards…

The bill also lacks sufficient limitation on the sharing of personally identifiable information…and does not contain adequate oversight or accountability measures…to ensure that the data is used only for appropriate purposes…

The bill effectively treats domestic cybersecurity as an intelligence activity and thus, significantly departs from longstanding efforts to treat the Internet and cyberspace as civilian spheres.

This is the first time in recent memory that the White House has expressed any such concerns. When signing into law the controversial National Defense Authorization Act [NDAA] the White House blithely ignored its trampling of those same civil liberties through its “indefinite detention” provisions. Nor did the White House raise any similar concerns when it issued its executive order commandeering all resources from American citizens in the event of an emergency to be declared by the president.

So the following from the White House’s statement on CISPA makes perfect sense: the White House favors government regulation of the internet and invasion of privacy without following the Fourth Amendment. It just doesn’t want

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CISPA is Big Brother’s Friend

CISPA - The solution is the problem

This is “cybersecurity week,” according to Brock Meeks at Wired.com when CISPA (the Orwellian-named Cyber Intelligence Sharing and Protection Act) is scheduled to move to the House floor for a vote. Offered originally before SOPA (the Stop Online Piracy Act) and its sister PIPA (Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act) were blown up in January, Reps. Mike Rogers (R-Mich.) and Dutch Ruppersberger (D-Md.) have offered some amendments to the bill (H.R. 3523) to soften some of its critics and to avoid the same result.

The primary problem, according to Meeks, is that it tries to kill a flea with a baseball bat: Any alleged security the bill offers against potential hackers “comes at the expense of unfettered government access to our personal information, which is then likely to be sucked into the secretive black hole of the spying complex known as the National Security Agency.”

Despite some window dressing by Mssrs. Rogers and Ruppersberger, the bill still has major problems. First it has “an overly broad, almost unlimited definition of the information [that] can be shared [by private Internet companies] with government agencies.” It overrides existing federal or state privacy laws with its language that says information between private and public agencies is shared “notwithstanding any other provision of law.”

In addition, the bill would create a “backdoor wiretap program” because the information being shared isn’t limited specifically to issues of cybersecurity but could be used for any other purpose as well. The language is unclear about what would trigger a CISPA investigation: “efforts to degrade, disrupt or destroy” a network. Would that apply to someone innocently downloading a

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Courts and Dept of Justice Agree: Videotaping Police is OK

March 3, 1991: Rodney King being beaten by LAP...

Ken Paulsen, president and CEO of the First Amendment Centerwrote in USA Today that “just as police officers use technology to watch citizens, including patrol car cameras, traffic light cameras and radar to track speeding, the public [also] has a right to monitor the work of officers on the public payroll.”

Perhaps the most memorable and life-altering event in the history of citizens recording police behavior was that moment on the evening of March 3, 1991, when George Halliday, using his Sony video recorder, taped the beating of Rodney King in Los Angeles. By the time the dust had settled, two of the four officers charged in the beating were found guilty, 53 people were dead, 2,383 people were injured, more than 7,000 fires had been set, 3,100 business establishments had been damaged or destroyed, $1 billion in losses had been sustained, and police behavior was permanently altered.

As Joel Rubin noted in his article commemorating the 20th anniversary of the Rodney King incident in the Los Angeles Times

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New York’s Long-Distance Body Scanners Violate 4th Amendment

New York City, Manhattan, Murray Hill : NYPD N...

New York Police Commissioner Joe Kelly is considering the latest in technology—Terahertz Imaging Detection (TID)—to be mounted on police cars and allowing them to roam the streets of New York looking for people carrying guns. The NYPD, sometimes referred to as the world’s “seventh largest army” with 35,000 uniformed officers, already does a brisk business frisking potential suspects, with little pushback. In the first quarter of last year, 161,000 New Yorkers were stopped and interrogated, with more than nine out of 10 of them found to be innocent. And there are cameras already in place everywhere: in Manhattan alone there are more than 2,000 surveillance cameras watching for alleged miscreants.

But the new technology will avoid the necessity of doing public pat-downs because it would allow officers to note, from their cruisers, who is carrying heat. The technology, effective up to 16 feet (with improvements in longer scans already being tested), measures body heat and indicates any “blockages” of that heat by metal obstructions, assumed in most cases to be handguns carried on the person. What it can do is “allow the NYPD to conduct illegal searches by means of scanning anyone walking the streets of New York,” according to the report at RT.com. “Any object on your person could be privy to the eyes of the detector, and any suspicious screens can prompt police officers to search someone on suspicion of having a gun, or anything else, under their clothes.”

Commissioner Kelly assured investigators that the scanners would be used only in what he calls “reasonably suspicious circumstances.” That’s a long way from the language in the Fourth Amendment of the U.S. Constitution, which says:

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Bill of Rights Day: Celebration or Mourning?

English: The Bill of Rights, the first ten ame...

The Cato Institute’s newspaper ad reminding citizens that December 15th was Bill of Rights Day summarized the desperate shape those first ten amendments to the Constitution of the United States is in, thanks to an overweening government and an uninformed citizenry. Reviewing each of the amendments, Cato pointed  to specific infringements of each of them, concluding that “It’s a disturbing picture, to be sure, but not one the Framers of the Constitution would have found altogether surprising. They would sometimes refer to written constitutions as mere “parchment barriers” [to totalitarian government].

The erection of the original “parchment barrier,” the Bill of Rights, was initially considered unnecessary because the language of the Constitution explicitly enumerated limited powers to the newly created government and why should further protections against powers not even granted be needed? As “Brutus,” one of the authors of the Anti-Federalist Papers, wrote: 

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Stop Online Piracy Act (SOPA) is Overkill

Listen

The first hearing on Rep. Lamar Smith’s (R-Texas) bill HR 3261, known as the “Stop Online Piracy Act” (SOPA), was held Wednesday in Washington by the House Judiciary Committee, which Smith chairs.

The bill was offered back in October by Smith along with 12 cosponsors, including Bob Goodlatte (R-Va.) who stated:

Intellectual property is one of America’s chief job creators and competitive advantages in the global marketplace, yet American inventors, authors, and entrepreneurs have been forced to stand by and watch as their works are stolen by foreign infringers beyond the reach of current U.S. laws. This legislation will update the laws to ensure that the economic incentives our Framers enshrined in the Constitution over 220 years ago—to encourage new writings, research, products and services—remain effective in the 21st century’s global marketplace, which will create more American jobs. The bill will also protect consumers from dangerous counterfeit products, such as fake drugs, automobile parts and infant formula.

The bill represents a modification of the Senate bill, the PROTECT IP Act, which was reported out of committee last spring but hasn’t yet reached the floor of the Senate for debate.

Supporters and opposition are rapidly lining up, pitting Hollywood’s producers against the Internet content providers, or, as Politico.com called it, the

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Pentagon: Cyberattack an Act of War

Matrix Code

Image by My Melting Brain via Flickr

Following up on the publication of the “International Strategy for Cyberspace” by the Obama administration last month, the Pentagon clarified and expanded upon its intention to consider a computer attack as equivalent to a more traditional act of war.

The White House’s strategy made clear that:

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Many of the articles on Light from the Right first appeared on either The New American or the McAlvany Intelligence Advisor.