About NewYorkLibertarian

I am a transplanted New Yorker living and working in Brooklyn. I have a BA, a JD, and a few opinions. this blog is not affiliated with any political party. I, as the author, am not personally affiliated with any political party.

Lois Lerner and her Catch 22

It has become apparent that Lois Lerner is going to invoke her fifth amendment right to not incriminate herself.  Rachel Bade and John Bresnahan wrote an article discussing the issues surrounding her use of the right.  Their article focused mainly on the maneuvering of the parties involved and the practical implications of their decisions.

There was a statement by Lois Lerner’s attorney, William W. Taylor III, that seems to undercut her use of the fifth amendment privilege.  Mr. Taylor is quoted as follows: ““If the court finds that she didn’t waive, then it’s over, and if the court finds that she did and orders her to testify, then she goes to testify,”Taylor said, later, adding that there is “no danger under any circumstances of her going to jail.””

This begs the question.  If there is no danger under any circumstances of Lois Lerner going to jail based on her testimony then what is the basis for exercising her fifth amendment rights?  One cannot assert the privilege because the testimony they are being asked to give is uncomfortable or will paint the testifier in a negative light.  One has to believe that their testimony may incriminate.  At best this statement by her attorney further muddies the water in an already murky situation.

Some may argue that this sentence was just an errant statement from her attorney.  I seriously doubt an attorney with the pedigree and experience of Mr. Taylor is in the practice of making errant statements to the press. I am, quite frankly, confused as to why he made that statement.


What is Freedom?

When I read or hear reports about the NSA’s massive spying there is often a point of view elucidated as follows: some argue that they will surrender some amount of their liberty in return for their safety.  This is at best a false argument and unfortunately is given improper weight from the members of the press.

It is quite understandable that a society cannot function if said society is destroyed by outside threats.  John Stuart Mill and our founders understood this well.  They examined the root necessities of the power of individuals to exercise power over others. They realized that this power must be extremely limited and tied to very necessary ends.  It was understood that this power is necessary and dangerous as the accumulated power can be used against citizens with the same force and effect as it is used against outside threats.

“Their power was regarded as necessary, but also as highly dangerous; as a weapon which they would attempt to use against their subjects, no less than against external enemies.  To prevent the weaker members of the community from being prayed upon by innumerable vultures, it was needful that there should be an animal of prey stronger than the rest, commissioned to keep them down.  But as the king of the vultures would be no less bent upon preying on the flock than any of the minor harpies, it was indispensable to be in a perpetual attitude of defense against his beak and claws.  The aim, therefore, of patriots was to set limits to the power which the ruler should be suffered to exercise over the community; and this limitation was what they meant by liberty.”  John Stuart Mill 1859

The balance between liberty and security cannot unfortunately be drawn completely in favor of liberty.  We all want our government to protect us from real and understood threats.  Terrorism is unfortunately a real threat in our society.  This need to be protected from real and understood threats is the basis for societies justified power over others.

“That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will , is to prevent harm to others.  His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right.”  John Stuart Mill 1859

It is understood and generally accepted that power can be exercised to the extent necessary to salvage civil society.  To what extent these powers are used and when they are allowed to be exercised are the questions of our time. Unfortunately, some pretend that the present questions we face as as a nation are novel ideations that only our generations have faced and thus the lessons of the past can be dashed aside as inapplicable to our present predicaments.  These very arguments attempt to compel us to give up our basic liberty for protection from threats.  This  inability to understand that our challenges are not unique is a fallacy of hubris and a failure of character.

“All that makes existence valuable to any one, depends on the enforcement of restraints upon the actions of other people.  Some rules of conduct, therefore, must be imposed, by law in the first place, and by opinion on many things which are not fit subjects for the operation of law.  What these rules should be is the principle question of human affairs; but if we except a few of the most obvious cases, it is one of those which least progress has been made in resolving.  No two ages, and scarcely any two countries, have decided it alike; and the decision of one age or country is a wonder to another.  Yet the people of any given age and country no more suspect any difficulty in it, than if it were a subject on which making had always been agreed.” John Stuart Mill 1859

The questions of the balance of liberty and security has thusly been debated since the creation of government.  The question boils down to one of line drawing.  Where is the line drawn between liberty and security?  What human freedoms do we allow the collective to violate in order to save the individual.  Throughout time mankind has made these decisions and all to often on the basis of the decisions is the whim of personal opinion.

“There is, in fact, no recognised principle by which the propriety or impropriety of government interference is customarily tested.  People decide according to their personal preferences. Some, whenever they see any good to be done, or evil to be remedied, would willingly instigate the government to undertake the business; while others prefer to bear almost any amount of social evil, rather than add one to the departments of human interest amenable to governmental control.  And men range themselves on one or the other side in any particular thing which it is proposed that the government should do, or according to the belief they entertain that the government would, or would not, do it in the manner they prefer; but very rarely on account of any opinion to which they consistently adhere, as to what things are fit to be done by a government.”  John Stuart Mill 1859

We, as a society, must realize that we are an advanced people and that we have set up limitations on our government of which they cannot impede.

“Despotism is a legitimate mode of government in dealing with barbarians, provided the end be their improvement, and the means justified by actually effecting that end.  Liberty, as a principle, has no application to any state of things anterior to the time when mankind have become capable of being improved by free and equal discussion. Until then, there is nothing for them but implicit obedience to an Akbar or a Charlemagne, if they are so fortunate to find one.  But as soon as mankind have attained the capacity of being guided to their own improvement by conviction or persuasion (a period long since reached in all nations with whom we need here concern ourselves), compulsion, either in direct form or in that of pains and penalties for non-compliance, is no longer admissible as a means to their own good, and justifiable only for the security of others.” John Stuart Mill 1859

Since September 11, 2001 there has undeniably been a need to protect Americans from an outside force.  What Americans have been cheated of is the ability to debate, and be informed of, the extent and amount of liberties that have been suffered in this battle.  The very limits that have been established to constrain the power of our governing officials has presumably been violated.  They cannot violate these rights any more than I can sell a house I do not own.

The persons who claim to accede their liberty in return for protection from terrorists know not what they accede.  Our government has not allowed its citizens to see how the laws it has passed has been interpreted.  It is each individual’s right to decide what they will accede in the fight against terrorism.  Until we understand what is at stake we cannot begin to bargain.  Americans have had the terms hidden, yet asked to sign away the rights and privileges guaranteed under the Constitution.  Our basic liberties are at stake and our government has asked us to sign a blank check upon which the cost is never revealed.

I refer again to John Stuart Mill as he has expressed the essence of the very liberties we are perilously risking.

“This, then, is the appropriate region of human liberty.  It comprises, first, the inward domain of consciousness; demanding liberty of conscience in the most comprehensive sense; liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological.  The liberty of expressing and publishing opinions may seem to fall under a different principle, since it belongs to that part of the conduct of an individual which concerns other people; but being almost of as much importance as the liberty of thought itself, and resting in great part on the same reasons, is practically inseparable from it.  Secondly, the principle requires liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject of such consequences as may follow: without impediment from our fellow-creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong.  Thirdly, from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived.

No society in which these liberties are not, on the whole respected, is free, whatever may be its form of government; and none is completely free in which they do not exist absolute and unqualified.  The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it.  Each is the proper guardian of his own health, whether bodily, or mental and spiritual.  Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.”  John Stuart Mill 1859

A valid objection may be formed to argue that I speak mostly of basic liberties and avoid the questions of the dangers we face.  This is necessarily because the dangers we face are as classified as the liberties we have sacrificed.

I watch as the ‘Freedom Tower’ rises outside of my office window.  We are approaching the 12 year anniversary of those horrific acts.  Exigency can only last for so long.  A truly free society deserves to know what entreaties their government has taken upon their liberties.  No matter who temporarily is elected into positions in our government we exist as a government of, by, and for the people.  It is not for our politicians to decide in secret what laws they will or will not obey.  It is exceedingly unfortunate that we learn that all branches of our government were involved in this mass deception.  To date the media cannot inform of us of the dangers we face and the liberties we have sacrificed in the name of protecting us from these dangers.  Until they can inform us of the specifics they should not give credence to the argument that some find it acceptable to sacrifice some liberty for security.

The NSA, the 4th Amendment, and your email

I earlier wrote about the National Security Agency (NSA) and their mass collection of phone records (Smith v. Maryland and the NSA Telephone Number Defense).  Now I would like to briefly discuss the privacy issues surrounding the NSAs use of the PRISM program.  I’ll narrowly focus on emails and this post necessarily hinges on an assumption that the NSA, through the PRISM program, is storing your emails to later search.

My assumptions are as follows: I believe that the NSA is gathering emails to later have access to in case it needs to search through them.  This is based on the government’s needle and haystack defense.  Ranking member of the House Intelligence Committee Dutch Ruppersberger put forth this defense.  He described it as follows:  “If you want to find a needle in a haystack, which is a lot of what our intelligence community does, you need the haystack.  And the providers who have this information, they keep it only for a certain period of time.  So in order for us to be involved and stop these attacks, we need to move right away.” (CNN)  I grant that he may have just been referring to the collection of phone numbers dialed, but I suspect that the needle and haystack defense may well be used as justification to defend PRISM.

So I believe it is safe to assume that the government is gathering this data (your emails) in case they are deleted or secreted away so that if they feel the need to later search your emails they will have ready access.  This is supported also by the need for the government to build a massive new data storage center that will be able to hold a yottabyte of data.

So that is where I begin my analysis.  As always it is helpful to look to a court case that has undertaken a careful analysis of the issues presented to frame this discussion.  The court case I will be relying on, and citing to, is United States v. Warshak, 631 F.3d 266 (6th Cir. 2010).

If you remember, as stated in my earlier post, that when a court undertakes to determine whether a violation of the 4th Amendment has taken place they undergo a two pronged analysis.  Judge Boggs put it as such:

The Fourth Amendment provides that “[t]he 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 . . . .” U.S. Const. amend. IV. The fundamental purpose of the Fourth Amendment “is to safeguard the privacy and security of individuals against arbitrary invasions by government officials.” Camara v. Mun. Ct., 387 U.S. 523, 528, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967); see Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 613-14, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989) (“The [Fourth] Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government or those acting at their direction.”).

Not all government actions are invasive enough to implicate the Fourth Amendment. “The Fourth Amendment’s protections hinge on the occurrence of a ‘search,’ a legal term of art whose history is riddled with complexity.” Widgren v. Maple Grove Twp., 429F.3d 575, 578 (6th Cir. 2005).  A “search” occurs when the government infringes upon “an expectation of privacy that society is prepared to consider reasonable.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984). This standard breaks down into two discrete inquiries: “first, has the [target of the investigation] manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?” California v. Ciraolo, 476 U.S. 207, 211, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986) (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979)).

The Court made easy work of the first question concluding that the defendant had a reasonable expectation that his emails would remain private.  I think this assumption is axiomatic.

The Court’s next step was to determine whether society is willing to accept this expectation of privacy in email as reasonable.  “This question is one of grave import and enduring consequence, given the prominent role that email has assumed in modern communication.” Warshak, at 284. The Court then went further to give just a few of the numerous examples of how important email has become to our lives:

Since the advent of email, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate information, instantaneously, to friends, family, and colleagues half a world away. Lovers exchange sweet nothings, and businessmen swap ambitious plans, all with the click of a mouse button. Commerce has also taken hold in email. Online purchases are often documented in email accounts, and email is frequently used to remind patients and clients of imminent appointments. In short, “account” is an apt word for the conglomeration of stored messages that comprises an email account, as it provides an account of its owner’s life. By obtaining access to someone’s email, government agents gain the ability to peer deeply into his activities. Much hinges, therefore, on whether the government is permitted to request that a commercial ISP turn over the contents of a subscriber’s emails without triggering the machinery of the Fourth Amendment.

The Court went on to hold that based on the similarities between emails and traditional forms of communications that common sense dictates that it should receive the same 4th amendment protections.  The Court further pointed out that the mere fact that a third-party intermediator could access the emails does not obviate the expectation of privacy.  They pointed out that telephone company operators have the ability to listen in on a phone call and the government still needs a warrant to listen to your calls.

They also point out that a hotel guest has a reasonable expectation of privacy in their hotel rooms despite the fact that a maid can enter the room to clean.  However, the Court made sure to be clear that there are circumstances under which an agreement with your ISP may render your expectation of privacy null and void.

Again, however, we are unwilling to hold that a subscriber agreement will never be broad enough to snuff out a reasonable expectation of privacy. As the panel noted in Warshak I, if the ISP expresses an intention to “audit, inspect, and monitor” its subscriber’s emails, that might be enough to render an expectation of privacy unreasonable. See490 F.3d at 472-73 (quoting United States v. Simons, 206 F.3d 392, 398 (4th Cir. 2000)). But where, as here, there is no such statement, the ISP’s “control over the [emails] and ability to access them under certain limited circumstances will not be enough to overcome an expectation of privacy.” Id. at 473.

The Court then went on to hold that the expectation of privacy in your emails is one that society is willing to accept as reasonable.

This case shows that there is at least one Court of Appeals in the United States that views emails as analogous to traditional mail. The question that remains is whether the terms of service used by the companies like Google in their GMail service obliterate the expectation of privacy.  Here is a link to Google’s privacy policies.

This was briefly discussed by Judge Garaufis in IN THE MATTER OF AN APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER AUTHORIZING THE RELEASE OF HISTORICAL CELL-SITE INFORMATION 809 F.Supp. 2d. 113 (E.D.N.Y. 2011).  Judge Garaufis posed the question in Footnote 6 this way: “For example, would the third-party doctrine remove the reasonable expectation of privacy over the contents of emails sent on Gmail, or similar email providers, that use computers to access and analyze the contents of email communications in order to display advertisements?”

The question that remains unanswered is whether the secret law created by the FISA court has dealt with this issue.  More specifically, has the FISA court looked at GMail’s terms of service and made a decision that you do not have a reasonable expectation of privacy in your GMail because of the invasive nature of Google’s use of your emails.  Unfortunately, with no access to the secret court decisions people cannot adjust their behavior accordingly.  Thus the nefarious nature of secret law and secret courts move onward.

I also have to note that the secret courts may have determined that the storage of the emails does not constitute a search until the government physically looks at the content of the emails in some way.  Of course a post based on secret law would not provide much insight without being informed of the contents of secret law.

*You may be wondering why this post does not discuss the Stored Communications Act 18 USC § 2703.  I believe that this post was long enough as is and the Stored Communications Act will still be around in the future to feature in its very own post.

Smith v. Maryland and the NSA telephone number defense

It is clear that the Department of Justice and the National Security Agency (NSA) have been collecting the records showing the telephone numbers of every single phone call that you make.  It is not yet clear whether they have been collecting the contents of those phone calls.  Below is an attempt to analyze the argument the government has put forth as their basis for this wholesale collection of numbers.

The only case that has been discussed as possible justification by the government is Smith v. Maryland 442 U.S. 735 (1979).

First, a little background.  Michael Lee Smith robbed a woman in Maryland.  He then began to call and threaten her.  The police identified a license plate on a car that matched the description given by the victim.  This was Smith’s license plate.  The police asked the phone company to install a pen register on Mr. Smith’s phone.  Pen registers are a device that records the phone numbers dialed by a particular device.  They are currently covered under 18 USC § 3121-3127.

This pen register information, along with other information, lead to a search warrant and eventually the arrest of Mr. Smith.  He was convicted and his appeal eventually found its way to the Supreme Court of the United States.

The decision was written by Justice Blackmun.  After reciting the facts, he laid out how the Court approaches questions concerning the 4th amendment.  The opinion was interlaced with cites and references to Katz v. United States, 389 U.S. 347 (1967).  It would be helpful to read the Katz case prior to reading the Smith case.

In Smith, Justice Blackmun held that “the application of the Fourth Amendment depends on whether the person invoking its protection can claim a “justifiable,” a “reasonable,” or a “legitimate expectation of privacy” that has been invaded by government action.” Smith, at 740.  This inquiry is broken down into two prongs.  The first prong is “whether the individual, by his conduct, has “exhibited an actual (subjective) expectation of privacy,” 389 U.S., at 361 – whether, in the words of the Katz majority, the individual has shown that “he seeks to preserve [something] as private.”” Smith, at 740.  The second prong “is whether the individual’s subjective expectation of privacy is “one that society is prepared to recognize as `reasonable,'” id., at 361 – whether, in the words of the Katz majority, the individual’s expectation, viewed objectively, is “justifiable” under the circumstances.” Smith, at 740.

Justice Blackmun then distinguished the facts in Smith from the facts in Katz.  It was significant to Justice Blackmun that in Smith the police only obtained records of the phone numbers whereas, in Katz, the police recorded the content of the phone calls.  Justice Blackmun went on to express that a person knows that the phone company must use the numbers dialed on a telephone to connect it to another line.  Furthermore, the phone company must retain this information for billing purposes.

Justice Blackmun then ruled that a person has no reasonable expectation of privacy in the numbers dialed from their phone.  This meant that the first prong of the 4th amendment test had not been met and thus the 4th amendment did not protect Mr. Smith’s phone records as held by the phone company.  Justice Blackmun then goes on to broaden the holding stating that a person has no reasonable expectation of privacy in information handed over to third parties.

Interestingly, Justice Blackmun specifically dealt with the issue of changing technology.  He found that equipment used by the phone company was substantially similar to having an operator physically routing the phone call.  The fact that no human actually was receiving the information did not matter as the Court was “not inclined to hold that a different constitutional result is required because the telephone company has decided to automate.” Smith, at 745.

After the decision in Smith Congress passed 18 USC § 3121-3127. This statute requires the government to obtain a court order prior to obtaining the records of phone calls from third-party companies.  The application for the court order has to claim that the information taken is relevant to an ongoing criminal investigation.  It is clear that the broad collection of every phone call made in the United States violates this statute.  The government, in its defense of the NSA program, has admitted that they are obtaining the phone numbers prior to knowing whether they will be relevant or not.

Furthermore, 18 USC Chapter 206 § 3121-3127, requires that the order issued by the judge to contain the identity, if known, of the person who is the subject of the criminal investigation.  This order must also contain a statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates.  It is clear that the Verizon FISA* order fails to live up to these disclosures.

It is clear from the above analysis that although the wholesale collection of the telephone numbers called by each United States citizen is not a violation of the 4th amendment it is a clear statutory violation.  Your rights come from the Constitution and from statutes passed by Congress.  The Department of Justice does not have the right to collect the information that it has been collecting.

We can find some comfort in the principle that commercial establishments have 4th amendment rights themselves (see New York v. Burger 482 U.S. 691 1987).  Thus, with some exceptions, the companies can stand up to the government.  We should keep this in mind when we try to take away rights from corporations with slogans such as ‘corporations aren’t people.’  But, that is a fight for another day.

The public need for transparency on this issue is clear.  In order for me to trust my records to a phone company I need to know what protections I have from the government and what steps, if any, my company is taking to protect my information from the government.  I hope these recent events will lead to such transparency.

*When looking at the Verizon FISA order you may then question whether the above statute is the proper statute to be referencing in determining the validity of the FISA order.  This is because the Verizon FISA order references 50 USC § 1861 as a justification for its issuance.  This statute references access to certain business records for foreign intelligence and international terrorism investigations.  The reason that I did not analyze this statute is because it is clearly not applicable to phone records of citizens making phone calls wholly within the United States.  Therefore, I have to assume that the government would look to the pen register statute as its justification for collecting phone calls made internally within the United States.

The 4th Amendment and the NSA

This is my attempt to string together many seemingly disparate events.  I have attempted to cite as many sources as I can so that the reader can please come to their own conclusions.  Until secret courts with secret justifications are abolished it will be hard to tell if this is correct.

I read articles by the New York Times editorial board, “President Obama’s Dragnet,” and the Wall Street Journals editorial board, “Thank You for Data-Mining,”  the Washington Post article “Documents:U.S. mining data from 9 leading Internet firms; companies deny knowledge” and the Guardian article “NSA collecting phone records of millions of Verizon customers daily” amongst others.

Please read these articles as they offer an array of views on the National Security Agency (NSA) scandal. I believe this is a major problem. Please remember I have included sources for as many arguments as I can in an effort to be as open as possible. I encourage you to please read the source material so that you can come to your own conclusion.  A working knowledge of our history’s founding and the Constitution are helpful but not necessary.   Please if you have questions look it up and learn or ask.  The internet can be used for amazing good and amazing evil.

The 4th amendment to our Constitution states that “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.”  This right protects citizens from having the government access their emails without a warrant. Any such warrant issued must be based on probable cause.  Article III of the Constitution sets up the courts that get to decide whether probable cause has been shown.   Article III contains no authority for the federal government to establish secret courts.

We must also look at this in conjunction with the Espionage Act of 1917.   The act makes it illegal to disclose classified information in certain circumstances.  The administration has the exclusive right to decide what information is classified.

With the background information covered please read on to see the analysis of the deeply troubling NSA situation.

We learned from the Guardian story that the Obama administration seized the call records from every person who uses Verizon for a certain time period.  The Washington Post told us that these seizures had been happening every three months for years on end and involved all major phone companies.

Then we learned that the breadth of the spying was much larger than just some phone records, thanks to the Washington Post.

“The National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, e-mails, documents, and connection logs…”

“According to a separate “User’s Guide for PRISM Skype Collection,” that service can be monitored for audio when one end of the call is a conventional telephone and for any combination of “audio, video, chat, and file transfers” when Skype users connect by computer alone. Google’s offerings include Gmail, voice and video chat, Google Drive files, photo libraries, and live surveillance of search terms.”

The Obama administration’s program was building on a Bush administration program that expanded the scope of the FISA (Freedom Intelligence Surveillance Act) law.  The FISA law was originally “created to provide Judicial and congressional oversight of the government’s covert surveillance activities of foreign entities and individuals in the United States, while maintaining the secrecy needed to protect national security.  It allowed surveillance, without a court order, within the United States for up to one year unless the surveillance will acquire the contents of nay communication to which a United States person is a party.”  In short, FISA allowed the government to intercept the communications between a person physically situated outside of the United States and a non-citizen within the United States.

However, FISA also allowed for surveillance based on a ruling by a secret FISA court.  In order to get a FISA warrant the government had to show probable cause that whomever they were surveilling was a foreign power or agent of a foreign power.  The government also had to show that whatever surveillance the government wanted to do of the foreign agent or foreign power met minimization requirements to protect against the gathering of information pertaining to U.S. Citizens.

So the secret FISA courts start issuing warrants for the seizure of information based on classified facts submitted by the federal government to the secret courts.  The evidence used by the government and the underlying rationale used by the government to support its position in front of the courts is classified.  The decisions issued by the secret FISA courts are classified.  There is no right to speak about the actions of the government at the FISA court proceedings.

So the federal government approaches these giant, heavily regulated corporations and tells them their continued compliance with the Patriot Act is commendable.  The corporations know that if they talk about what the government is doing they will face up to ten years in prison under the Espionage Act.  The corporations go along with the government’s plans because of the threat of terrorism, the threat of government regulation, and because the government promised to minimize the transfer of any United States citizens information.

Then in approximately 2008 the government began to ask these companies, including Verizon, Apple, Microsoft and many others to give the government complete and total access to their servers.   The problem for the corporations was that they had built their reputations and their customer loyalty based on stoic predictions of absolute protection of customer data.  This was incorporated into many of their terms of service.  Questions arose but americans generally accepted that these companies would anonymously use their data to advertise to them and not much else.  Google tells you up front that it scans your emails, but it the implicit understanding is that the information is anonymous and only given to advertisers.  It definitely was not understood that all your emails would be made available to the federal government to be used as they see fit.

Apple, apparently defied the government for some time.  However, the government began to really turn the screws.  Remember, that if the corporations exercise their freedom of speech by disclosing the existence of this program then they can get indicted under the espionage act.  That is punishable by ten years in prison for each count.  Even acknowledging that the company is being asked questions by the government is illegal.  And remember, this is the same president who has prosecuted more people for leaks then all presidents before him combined.  There was no doubt that these companies felt they must comply or be thrown in jail.

The corporations were between a rock and a hard place.  Lie to the people and risk ruining a company built on trust or go to jail.  The government realizes the concerns of the corporations and realizes the risks if someone at one of these places of employment leaks the information about their spying.

So the government elects to immunize the corporations for any lawsuits filed by their customers based on the corporations outright violations of their customers constitutional rights.  This would force the companies to cooperate.  It’s no different then when the federal government is prosecuting multiple defendants for the same transaction.  One of the defendants gets immunity so that the government can force them to act against their friend.

These are public companies that are being told by the government to lie with impunity.  They have a duty to inform their shareholders of the health of the company.

The government is now involved in some large scale espionage on the american public.  They have shown a disregard for any actual Constitutional limits.  Then you have the 2010 midterm elections.  This election resulted in the highest loss of a party in a House midterm election since 1938.  The Republicans picked up 22 state legislatures and positioned themselves to cement this legacy based on redistricting.

This must have scared the Obama administration.

They saw a struggle to reelection and were not even sure at this point if Obamacare would survive.  The Obama administration comes from Chicago.  The machine never quits.

The administration had good reason to hope they could get away with their Constitutional violations as courts were siding with them and keeping it secret.  The legislative branch of government, Congress, was briefed and told that if they leaked any information they’d be thrown in jail under the Espionage Act.  Plus many of them agreed with the decisions made by the administration.

Then comes Citizens United.  These corporations that Obama was spying on and threatening could now give money and speech anonymously to these Tea Party groups that really did not like Obama.  Obama would have no ability to tell which corporations donated thus giving an opening that a corporation would rat on him.  This also made him feel less secure that the Courts were putting up with being forced to keep secrets as they openly defied his tight control of information.

The response was two fold.

The first part of the government’s plan was bash the credibility, character, and rights of corporations.  Remember the refrain that corporations aren’t people.  They don’t have rights.  I would imagine this will be the reasoning that was used to convince the secret courts to issue warrants.  Of course the administration won’t ever let Americans see these court decisions.  Like a good trial attorney in jury selection he was planting thoughts into your head.

The second branch of fighting the disclosure of the spying is fighting these groups applying for tax exempt status.  The administration has the IRS crack down on Tea Party groups applying for tax exempt status.

Yet they had a new group to keep happy and be worried about.  They gave the IRS big celebration type conferences and gave employees big bonuses.  with conferences and bonuses on IRS employees.

Then you have Benghazi.  The government had been telling the public that Al Qaeda is decimated but they kill our ambassador.  It is hard not to know what the truth is as the spying program has been justified based on the threat terrorism still poses to the United States.  I’m still not sure what Benghazi means, but I have a hunch it plays a major role.

finally the hackback debates started.  Companies wanted to hack back against the people hacking their computers.  The federal government does not allow this at all.  I wonder if it is because they are afraid of being discovered for their hacking.

What the government has done is inexcusable.  They have taken the tools of our greatest achievements: technology, computers, amazing devices that we use to work, play, and just about everything.  There is a device next to you when you go to bed.  There are multiple ones in your house.  They can record audio and video.  They could be on without you knowing about this at all.  They are creating the largest data center in the world.  Wired covered this in 2012.

The administration is saying that it is acceptable because the secret courts gave them secret permission and we should just trust them anyways.

This is not functionally different then posting an FBI agent everywhere you take any type of electronic device.  The really sad part is that so many in the government and the general public seem to have no problem with what is going on.  I’m sure I got some aspects wrong.  The administration has stonewalled and hidden behind secret courts.

This brings up a real fear that our country is no better than North Korea or China.  Our government espouses to other countries that they need to keep the internet free while our government violates our Constitution.   What other games or tricks are they playing.

Questions Concerning Eric Holder Testimony Still Unresolved

According to the New York Times, Eric Holder, the Attorney General of the United States, testified to the following under oath: “With regard to the potential prosecution of the press for the disclosure of material, that is not something that I’ve ever been involved in, heard of or would think would be a wise policy.”  That is a very broad statement.

After this testimony, the Chairman of the committee that took the testimony sent this letter asking for clarification in light of the facts that Eric Holder had approved an affidavit in the James Rosen case prior to testifying in front of Congress.  That affidavit labeled James Rosen, a Fox News reporter, as a co-conspirator, alleged probable cause to believe he committed a criminal act, and swore that telling the James Rosen or his employer about the attempt to obtain a warrant would jeopardize the investigation because Rosen may destroy evidence, harm or kill someone, or flee the jurisdiction.  See this post for some background on the current status of the Department Of Justice issue.

The letter from the committee requested certain questions be answered.  Most importantly, how can Eric Holder assert that the above facts do not classify as a potential prosecution of the press.

The Department of Justice send this letter in response to the committee’s letter.  This letter avoids actually answering the questions raised by the committee.  The letter claims that because no charges were actually sought Eric Holder’s statement accurately reflected the truth.

The statements by the Department of Justice fold under any level of scrutiny.  The Department of Justice investigates behavior to determine whether or not to bring criminal charges.  The Department of Justice does not just investigate all behavior at random to see whether or not a crime was committed.  They only investigate someone if they have some reason to think that there is a possibility that criminal activity is taking place.

The Department of Justice investigated a reporter and swore that they had evidence that leads them to believe that there is probable cause to believe James Rosen committed a criminal act.  They were definitively involved in the potential prosecution of a reporter.  We must remember that the evidence necessary to put handcuffs on the reporter and arrest him is the same standard, probable cause.  If the Department of Justice never even contemplated bringing charges against James Rosen then they should not have been investigating him.  If the decision not to prosecute was made after the search warrant was obtained, then it was still a potential prosecution.

Lastly, if someone alleged that I committed perjury I would personally respond to the accusation.  Eric Holder had Peter Kadzik, a subordinate employee, draft his response.  This may mean nothing, but it seems fishy to me.  When your personal integrity is challenged I think, especially considering the surrounding events, one ought to personally reply to put the issue to bed.

Military Sexual Assault Probes


Today there were congressional hearings concerning some troubling revelations about sexual assault complaints in the military.  Here is a CNN article by Eliott McLaughlin discussing the hearings.

I do not have any comments on the substance of the hearings or the proposals raised at the hearings.  I hope that Congress and the military can find a solution that helps solve this problem.  I don’t know what that solution is or will be.

One feeling I come away with is general disappointment.  As I grew up I developed a special reverence for the military.  It is hard to read about great generals like George Washington, General MacArthur, and General Patton without developing an appreciation for their bravery and sacrifice.  There are too many individual stories to even begin to name those men and women who have acted with immense character, resolve, and bravery in service of their country.  Scandals like this do damage to all of those individuals and the military as a whole.  When I was young I was told that the military was where you could go as a boy and leave a gentleman.  This behavior falls short of those brave men and women who came before and will come after.  The country needs this to stop.  Period.

Did the White House fail to respond in kind to alleged IRS abuses?

The article, “I.R.S. Spent $4.1 Million on a Single Conference, Audit Finds,” raises some potentially troubling issues.  Please keep in mind that the I.R.S. Audit concerning the lavish spending at the I.R.S. was just released and bears a date of May 31, 2013 on its front cover.  You can find a copy of the report at T.I.G.T.A.’s* website here.  This is the report that the New York Times article was referencing.

The paragraph that stood out to me is as follows: “But the audit also shows that such expenditures fell sharply when the Obama White House clamped down on travel and conferences as budgets tightened and a scandal erupted over how much the General Services Administration had spent on conferences.  I.R.S. spending on such meetings fell to $4.8 million in the 2012 fiscal year, which ended Sept. 30, from $37.5 million in fiscal 2010.”

This sounds innocuous enough on its own.  The problem is that people have memories and statements are not made in isolation.  The administrations response to the I.R.S. targeting scandal was noticeably different.  This article in the Blaze, by Jason Howerton, lays out the White House’s initial response to the I.R.S. targeting scandal.  When the I.R.S. scandal concerning the targeting of conservative groups first came to light the White House Press Secretary, among other administration officials, declared that there is a “cardinal” rule for these types of situations.  The Blaze article stated,“”[t]hese kinds of independent investigations need to be independent, there should be no intervention by a White House, and of course there was not in this case,” he said, later adding that the White House chose to “wait appropriately” instead of taking action.” (Quoting Jay Carney.)

There can be no dispute, if the New York Times article is true, that the administration quickly acted to quash wrongdoing in the I.R.S. spending scandal years before the investigation by T.I.G.T.A. was completed.  In the I.R.S. conservative targeting scandal the administration told the general public that the “cardinal” rule is to do absolutely nothing until the T.I.G.T.A. investigation is completed.

It seems to me that the actions by the White House in response to the I.R.S. spending scandal clearly violated the “cardinal” rule as espoused by Jay Carney.  This could suggest many things.  Jay Carney should be asked to comment on the contradictions.

*T.I.G.T.A. stands for the United States Treasury General for Tax Administration.  They are the federal watchdog agency for the I.R.S.  Here is their website.

Abolish the IRS?

Senator Ted Cruz says that he wants to abolish the IRS.  I wholeheartedly agree. Unfortunately, there are a lot of people who are very invested in the current tax system.  They are entrenched interests.  They will argue that we just need to reform the IRS.  Take this Bloomberg article as a prime example.  Nobody wants to turn off the spigot.  If we can’t even get rid of a temporary assistance program what luck will we have getting rid of an agency with over 90,000 employees and many people not employed by the IRS that benefit from the complex rules?

Don’t get me wrong, I think the tax laws should be written on less than 10 pages of paper.  A tax return should be a one page document.  However, government creates interesting bedfellows.  The IRS has a gigantic bed.

IRS Hearings Continue

I’ve now watched the latest House Appropriations Subcommittee’s hearing on the IRS scandal.  My instant reactions are reflected on my twitter feed.  I have put some thought into what happened today at the hearing and my reactions are not groundbreaking.

Lois Lerner first let the cat out of the bag on about May 10, 2013.  Today, June 3, 2013 the acting commissioner, whose been on the job since May 22, 2013, still can’t even state a single name when asked who was responsible.  It doesn’t inspire confidence.

Also, a really pernicious problem.  The President and all of his defenders kept claiming that a real scandal would have been if the President was somehow aware that there was an ongoing investigation by the Inspector General before the public knew.  Let’s put aside whether he knew and whether there is any functional difference between his chief of staff’s knowledge and the President’s knowledge.  It seems obvious to anybody paying attention that IRS employees can partake in wholesale ideological warfare for something like two years at least.  There is a real difference between the administration being apprised of an investigation and stopping the behavior as opposed to being apprised of an investigation and improperly influencing the investigation.

If there aren’t serious and lasting consequences for their behavior then there will be a real risk of a loss of trust between the Government and the people.  We must remember that our government is of, by, and for the people.  When that government attacks those that it serves it violates a solemn trust.

What set us apart from every other country in the world when we were formed was the institutionalization of the idea that the government operates only with the consent of the governed.  It was the institutionalization of the idea that the people retain certain rights that the government cannot violate.  These actions go to the heart of that principle.  It should really have us examine all of these laws that restrict the right of the freedom of speech.  Many of our campaign finance laws should fail under this principle.