Interesting case. And I lean toward the side which says doing what is ordered amounts to self-incrimination which the 5th Amendment is designed to prevent.
American citizens can be ordered to decrypt their PGP-scrambled hard drives for police to peruse for incriminating files, a federal judge in Colorado ruled today in what could become a precedent-setting case.
Judge Robert Blackburn ordered a Peyton, Colo., woman to decrypt the hard drive of a Toshiba laptop computer no later than February 21–or face the consequences including contempt of court.
I’m not sure, in her case, what they’re looking for, not that it matters particularly. We again have technology in the focus and its use being ruled on by the court. The question is, does such an order violate the defendants right to refuse self-incrimination by unlocking data which has the possibility of incriminating her.
Today’s ruling from Blackburn sided with the U.S. Department of Justice, which argued, as CNET reported last summer, that Americans’ Fifth Amendment right to remain silent doesn’t apply to their encryption passphrases. Federal prosecutors, who did not immediately respond to a request for comment this afternoon, claimed in a brief that:
Public interests will be harmed absent requiring defendants to make available unencrypted contents in circumstances like these. Failing to compel Ms. Fricosu amounts to a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible.
I certainly understand the import of that claim. And it is a valid point. But is it something which over rides the protection of the 5th Amendment? In my opinion, this is not at all as clear as the 4th Amendment case below. I’m not sure, however, one explains away the fact that decryption may indeed incriminate the person required to do the decrypting.
[A] Vermont federal judge concluded that Sebastien Boucher, who a border guard claims had child porn on his Alienware laptop, did not have a Fifth Amendment right to keep the files encrypted. Boucher eventually complied and was convicted.
On the other hand:
In March 2010, a federal judge in Michigan ruled that Thomas Kirschner, facing charges of receiving child pornography, would not have to give up his password. That’s "protecting his invocation of his Fifth Amendment privilege against compelled self-incrimination," the court ruled (PDF).
The government argues:
Prosecutors tend to view PGP passphrases as akin to someone possessing a key to a safe filled with incriminating documents. That person can, in general, be legally compelled to hand over the key. Other examples include the U.S. Supreme Court saying that defendants can be forced to provide fingerprints, blood samples, or voice recordings.
The defense argues:
On the other hand are civil libertarians citing other Supreme Court cases that conclude Americans can’t be forced to give "compelled testimonial communications" and extending the legal shield of the Fifth Amendment to encryption passphrases. Courts already have ruled that that such protection extends to the contents of a defendant’s minds, the argument goes, so why shouldn’t a passphrase be shielded as well?
There you have it.
I don’t know about you, but this seems such a clear thing to me. If law enforcement is going to put any sort of a tracking device on a citizen’s vehicle, they need to obtain a warrant first. See 4th Amendment:
The Supreme Court on Monday ruled unanimously that the police violated the Constitution when they placed a Global Positioning System tracking device on a suspect’s car and monitored its movements for 28 days.
Walter Dellinger, a lawyer for the defendant in the case and a former acting United States solicitor general, said the decision was “a signal event in Fourth Amendment history.”
“Law enforcement is now on notice,” Mr. Dellinger said, “that almost any use of GPS electronic surveillance of a citizen’s movement will be legally questionable unless a warrant is obtained in advance.”
“We hold that the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search,’ ” Justice Antonin Scalia wrote for the majority. Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Sonia Sotomayor joined the majority opinion.
“It is important to be clear about what occurred in this case,” Justice Scalia went on. “The government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”
The government, in this case, had put a GPS device on the target’s vehicle without a warrant, monitored it for 28 days and then used that information at his trial (he was convicted on cocaine trafficking charges and given a life sentence).
The reason I think this should have been a no-brainer for LEOs is the fact that the SCOTUS decision was unanimous.
When the case was argued in November, a lawyer for the federal government said the number of times the federal authorities used GPS devices to track suspects was “in the low thousands annually.”
Vernon Herron, a former Maryland state trooper now on the staff of the University of Maryland’s Center for Health and Homeland Security, said state and local law enforcement officials used GPS and similar devices “all the time,” adding that “this type of technology is very useful for narcotics and terrorism investigations.”
Monday’s decision thus places a significant burden on widely used law enforcement surveillance techniques, though the authorities remain free to seek warrants from judges authorizing the surveillance.
Ok, get a freaking warrant first.
What this decision does is uphold a Constitutional right that has been under assault for quite some times. The “envelope stretching” that is not uncommon as new technology offers new methods of surveillance and monitoring. The watchword for LEOs should be “when in doubt, get a warrant”. And live by the document you’ve sworn to uphold and defend.
We’ve been treated to stories of “greed” and supposed corporate misbehavior by the OWS crowd, but here’s a story that ought to make you furious, especially if you’re an Illinois taxpayer:
Two lobbyists with no prior teaching experience were allowed to count their years as union employees toward a state teacher pension once they served a single day of subbing in 2007, a Tribune/WGN-TV investigation has found.
Steven Preckwinkle, the political director for the Illinois Federation of Teachers, and fellow union lobbyist David Piccioli were the only people who took advantage of a small window opened by lawmakers a few months earlier.
Obviously any number of people are culpable. The lawmakers, of course. But the two who took advantage of this legal loophole are simply morally reprehensible people who took advantage of the system for personal gain without earning what they will receive.
The legislation enabled union officials to get into the state teachers pension fund and count their previous years as union employees after quickly obtaining teaching certificates and working in a classroom. They just had to do it before the bill was signed into law.
So seeing an opportunity to cash in without actually having to do any real teaching, they quickly got teaching certificates and substitute taught for one day. One day. They were paid $93 for the day.
The result from that day? Probably over $100,000 a year in pension payments:
Preckwinkle’s one day of subbing qualified him to become a participant in the state teachers pension fund, allowing him to pick up 16 years of previous union work and nearly five more years since he joined. He’s 59, and at age 60 he’ll be eligible for a state pension based on the four-highest consecutive years of his last 10 years of work.
His paycheck fluctuates as a union lobbyist, but pension records show his earnings in the last school year were at least $245,000. Based on his salary history so far, he could earn a pension of about $108,000 a year, more than double what the average teacher receives.
Meanwhile, as you might guess, the pension fund is horribly underfunded and teachers who’ve spent a career in the classroom stand to get less than half what these two will get.
The union finds no real problem with what its two paid lobbyists did:
A spokesman for the Illinois Federation of Teachers emphasized that the lobbyists’ actions were legal and that they made "individual decisions."
Even so, union President Dan Montgomery said the deal Preckwinkle and Piccioli landed "should never be allowed again." But the union, which provides its employees with a private 401(k)-type plan, is standing by the lobbyists’ right to have access to the public pension.
"They entered TRS under the law and are participating members of TRS. As a TRS employer, the IFT is required to make the payments to TRS," the union said in a statement.
Of course we all know that legal and moral are only the same by coincidence. These two scoundrels knew precisely what they were doing and did what they did with malice aforethought. This was a bid to cash in while doing nothing. And of course, cheats like them are more than happy – along with the union – to stand behind the façade of legality.
And oh, by the way, it should never happen again because the law was changed after these two grifters cashed in.
Always looking out for the little guy and making sure he gets a square deal, those union guys.
HT: Duane Lester
In another version of the “pushing granny over the cliff” scare which typified the resistance mounted by Democrats to Social Security reform, VP Joe Biden is out there trying to scare the people about crime in order to spend more on shoring up the Democratic base (more political cronyism) to be found in teacher’s and public servant’s unions:
“Murder will continue to rise, rape will continue to rise, all crimes will continue to rise,” if the Democrats agenda isn’t passed, he added.
Because, you know, there’s a direct correlation between murder, rape and the number of cops on the beat.
Except both murder and rape stats have been in a downward trend since 2006. In 2006 the murder rate per 100,000 was 5.7, rape 30.9.
In 2010 the rate for murder was 4.8 and rape 27.5. In the two intervening years, those numbers continued to fall. And we all know we’ve been in the recession for at least 3 years and there have been cutbacks in police during that time.
So, unsurprisingly Biden is wrong and is pushing a myth (they’ll “continue rising”) when in fact, the stats show a steady drop for the past 4 years.
But he’s shameless in his fact free attack:
Then in the same speech he wished Republicans were themselves rape victims. “I wish they had some notion of what it was like to be on the other side of a gun, or [to have] a 200-pound man standing over you, telling you to submit.”
Amazing. Vice President of the US and trying to pull this political hackery complete with the usual scare tactics off. Of course, look at his boss.
More developments in the fiasco that is known as Operation Fast and Furious.
There appears to have been a third “Gunwalker” weapon at the murder scene of Border Patrol Agent Brian Terry which hasn’t been in evidence, suggesting it has been withheld. Audio recordings reveal the mention of a third gun that until now has been unknown. The conversation is between ATF Agent Hope MacAllister and Glendale, AZ gun shop owner Andre Howard:
Agent: Well there was two.
Dealer: There’s three weapons.
Agent: There’s three weapons.
Dealer: I know that.
Agent: And yes, there’s serial numbers for all three.
Dealer: That’s correct.
Agent: Two of them came from this store.
Dealer: I understand that.
Agent: There’s an SKS that I don’t think came from…. Dallas or Texas or something like that.
Dealer: I know. talking about the AK’s
Agent: The two AK’s came from this store.
Dealer: I know that.
Dealer: I did the Goddamned trace
Agent: Third weapon is the SKS has nothing to do with it.
Dealer: That didn’t come from me.
Agent: No and there is that’s my knowledge. and I spoke to someone who would know those are the only ones they have. So this is the agent who’s working the case, all I can go by is what she told me.
The tapes are several months old (mid March, 2011):
Law enforcement sources and others close to the Congressional investigation say the Justice Department’s Inspector General obtained the audio tapes several months ago as part of its investigation into Fast and Furious.
Then, the sources say for some reason the Inspector General passed the tapes along to the U.S. Attorney’s Office in Arizona: a subject in the investigation. It’s unclear why the Inspector General, who is supposed to investigate independently, would turn over evidence to an entity that is itself under investigation.
A spokesman from the Office of the Inspector General today said, "The OIG officially provided the United States Attorney’s Office with a copy of the recordings in question so that the USAO could consider them in connection with the government’s disclosure obligations in the pending criminal prosecutions of the gun traffickers. Prior to receiving the tapes, the OIG made clear that we would have to provide a copy of the recordings to the United States Attorney’s Office because they would need to review them to satisfy any legal disclosure obligations."
Uh, yeah. And why has it taken this long for copies to be provided elsewhere?
Court records have previously only mentioned two weapons: Romanian WASR "AK-47 type" assault rifles. Both were allegedly sold to suspects who were under ATF’s watch as part of Fast and Furious.
Per the agent in the transcript, the third weapon (SKS) came from “Dallas or Texas or something like that” and they had serial numbers for all three.
Why are we just finding out about the third weapon at the scene?
Business Insider has the details. As the probe widens, more and more of the botched and frankly stupid operation becomes known:
The WSJ reports today that federal authorities are now investigating why the U.S. Attorney’s office in Phoenix — the same office that oversaw Fast and Furious — released Jean Baptiste Kingery after he confessed to providing military-style weapons to the now-defunct La Familia Michoacana drug cartel.
Kingery, who was arrested and released in June 2010, confessed to manufacturing improvised explosive devices (IEDs) using grenade components from the U.S. He also admitted to helping the cartel convert semi-automatic rifles into machine guns.
Mexican criminal organizations are increasingly using these military-style weapons as the cartels’ escalate their wars against the government and one another.
Despite Kingery’s confession, and over loud protestations from the arresting ATF officers, the U.S. Attorney’s office let Kingery go within hours of his arrest.
This has led the Phoenix U.S. Attorney’s office to attempt to push back:
The Phoenix U.S. Attorney’s office denies that it declined to prosecute the case, saying that it wanted to continue surveillance. The office alternatively told investigators that ATF agents wanted to make Kingery an informant, but lost contact with him within weeks of his release.
Prosecutors involved in the case also accuse ATF agents of devising a failed sting that allowed Kingery to take hundreds of grenade parts across the border in the months about six months prior to his arrest.
Kingery had been hauled in by ATF agents and confronted with the evidence and the U.S. Attorney’s office thinks he’s going to go back to work and it’ll be business as usual? Really? I guess they figured out that wasn’t the case when they “lost contact with him within weeks of his release”.
Botched? That’s being kind. And notice too the attempt to distract by the U.S. Attorney with the “failed sting”. It seems to me if that’s the case and six months later the agents had the goods on Kingery, it was probably a good arrest at that point. But apparently the U.S. Attorney there knows better, huh?
This is Clown College stuff. How badly can an organization screw up an operation that was absolutely stupid to begin with? Obviously worse than we thought. The level of stupidity, incompetence and outright dumb decisions wrapped up in this case are staggering. It was a dumb idea to begin with and it was compounded with incompetence, poor execution and it inevitably ended up killing a US agent and untold Mexicans.
The question is, who at what level knew about this in the administration. There are those who believe Eric Holder is certainly knew and there’s speculation that the man in the White House may have known and condoned the operation as well.
The Fast and the Furious case has escalated over the past weeks, with news that at least three White House national security officials knew about the gunrunning program.
Emails obtained by the Committee last week show contact between the head of the Phoenix ATF and Kevin O’Reilly, then-director of North American affairs, about the operation. The White House confirmed that O’Reilly briefed Dan Restrepo, senior director for the Western Hemisphere, and Greg Gatjanis, director of counterterrorism and narcotics.
The emails, first reported by the LA Times, do not indicate that the White House aides knew about the more controversial tactics of letting the guns "walk." There is also no indication that the information went beyond those three officials.
Yeah, that sort of stuff never makes it into security briefings for the President, does it?
And you can already see the attempt to limit the damage if it is finally proven the President was aware of the operation (and tacitly approved it) with the line that says the White House security aides didn’t know “about the more controversial tactics of letting the guns “walk.”” That was sort of the whole point of the operation, wasn’t it?
Lots of interesting revelations yet to come methinks. Whether or not the press will cover it in any depth remains to be seen, but in my estimation, this is a large enough scandal that at least Eric Holder’s job ought to be in jeopardy.
The usual treatment has been meted out by some unknown (at the time) foreign entity we chose to help. We’ve been stiffed. After spending months, not weeks, helping the Libyan rebels overthrow Mommar Gadaffi, payback comes in the form of refusing to hand over the convicted murderer of 270 people in the bombing of Pan Am 103 over Lockerbie, Scotland.
Having fully duped the Scots by acting as though he was terminally ill, Abdel-Baset al-Megrahi was released by them to a hero’s welcome in Libya, and, apparently a full recovery. Must be the air.
A group of US Senators, obviously presuming that the new rebel government would be somewhat thankful for all the help given them over the past months, requested al-Megrahi be turned over to US custody.
But the transitional government’s justice minister, Mohammed al-Alagi, said Sunday in Tripoli that the request by American senators had "no meaning" because Mr. Megrahi had already been tried and convicted.
"We will not hand over any Libyan citizen. It was Gadhafi who handed over Libyan citizens," he said, referring to the government’s decision to turn Mr. Megrahi over to a Scottish court for trial.
Yes, he’s be tried and convicted … and sentenced. And the only reason he was released was for supposed “compassionate” reasons based on his health. As it turns out, that was a lie. Seems pretty open and shut to me – he’s still convicted and his compassionate release, because of the ruse, is null and void.
Mr. Megrahi’s current whereabouts are unknown, and on Saturday no one answered the door of his villa, hidden behind high walls in an upscale Tripoli neighborhood. A neighbor, Yousef Mohammed, said he saw Mr. Megrahi’s son in the street on Friday and assumed the family hadn’t left the area.
No private guards or rebel fighters were visible in the quiet side street of walled villas. The neighbor, said he often saw Mr. Megrahi in the neighborhood. "This guy is sick. All the time, I saw him" in the wheelchair, he said.
Yeah, I think we’ve seen this movie before.
OK … seems pretty easy from here. No Megrahi, no aid, no assets unfrozen, no help of any kind.
The latest reports on the economy is due out this week and it doesn’t appear they will contain much good news:
Economists have been insisting for months that the economy is poised to lift off into a self-sustaining orbit, only to be forced to scrub the launch date several times.
Thus the repeated “unexpected”.
The way the economy works is that it takes growth higher than a 3% rate before good things, like a sustained decline in unemployment, even start to happen. Anything in the 2.5%-to-3% range is just treading water.
Growth has averaged 2.8% over the past seven quarters. And at this point, economists would welcome a 2.5% growth rate.
Economists polled by MarketWatch now expect growth to actually decelerate to a 1.6% annual rate in the second quarter from a tepid 1.9% rate in the first quarter.
Those are some pretty shocking numbers when you consider all the political hype that’s been flying around lately about the “vastly improved” economy. I’ve put in bold type the numbers you need to know to be able to analyze the numbers thrown around as these reports come out. As you can tell, we’ve been in the treading water stage for quite some time.
We’ve covered many of the reasons. One is the administration’s war on carbon-based fuels – an sector that could be creating hundreds of thousands of jobs, revenue and growth if not essentially shut down by bureaucratic foot-dragging and stifling regulation. ObamaCare is another reason we see blamed because it has thrown thousands of new regulations about health care at businesses.
Those and other factors have led to extraordinary caution on the part of business about expansion and hiring. So where are the profits these companies are enjoying coming from?
The sluggish pace of hiring may be hobbling the US economy, but it’s not been holding back big US companies’ profits thanks to growth overseas and cost controls at home. And that’s bad news for the more than 14 million Americans without jobs.
Big businesses would normally be desperate for surging job growth as it would feed into domestic demand but these aren’t normal times. Massive growth opportunities overseas, especially in China and other buoyant Asian economies, have some of the largest American companies on track for record profits, even if they’re businesses are mostly treading water in the US.
The message last week from the chief financial officer of one of the nation’s industrial giants couldn’t be clearer.
"We’ve driven all this cost out. Sales have come back, but people have not," said Greg Haynes, chief financial officer at United Technologies Corp. "It’s the structural cost reductions that we have done over the past few years that have allowed us to see strong bottom-line results."
The company, the world’s largest maker of air conditioners and elevators, said second-quarter profit rose 19 percent, and it is doing most of its hiring in emerging markets where demand for its products is growing fastest. It isn’t alone in seeing profits climb in the current earnings reporting season.
They’ve learned to do more with less, thus their cost cutting measures in the really bad times are now beginning to pay off. The easiest and quickest way to cut costs, of course, is reduced headcount. They’ve also identified new markets that aren’t as onerous or unsettled to do business in – so their hiring – what hiring they’re doing – is overseas. And given all that, it’s unlikely to change anytime soon:
Employers added fewer jobs in June than at any time in the past nine months, and the jobless rate rose to 9.2 percent, higher than when the recession ended in early 2009.
"We’ve never seen the kind of shedding of jobs that we saw in this recession. America’s corporations have never been running so efficiently," said Ellen Zentner, senior US economist at Nomura Securities in New York.
An example of that is the car industry:
With the economy still struggling to regain momentum after the financial crisis of 2007-09 and 14 million Americans out of work, the planners at GM and a host of corporations across America are in no rush to make big new investments to ramp up output and hiring.
The world’s second-biggest carmaker has not re-opened its idled plants or built new ones as Americans rein in spending.
Like many US manufacturers, it is squeezing more from existing factories and using time-honoured efficiency boosts such as adding to overtime and eliminating plant bottlenecks.
‘Our manufacturing folks have been tremendous at squeaking out extra units through improving line rates, adding on extra shifts,’ GM’s US sales chief Don Johnson said.
That, of course, means a long recovery period for employment. Here’s a rather startling “did you know” fact for you:
Has anyone in Washington noticed that 20% of American men are not working? That’s right. One out of five men in this country are collecting unemployment, in prison, on disability, operating in the underground economy, or getting by on the paychecks of wives or girlfriends or parents. The equivalent number in 1970, according to the McKinsey Global Institute, was 7%.
That’s neither a good cultural or economic trend and certainly not a trend that we want to see continued into the future. It has a tendency to have a negative effect that can be profound. It also tends to see incidents of criminal activity rise.
So what is government to do? Follow policies that will encourage businesses to expand and hire. Exploit those sectors that have low hanging fruit like the carbon-based energy sector.
Instead, what do we get? Thousands of pages of new regulations and laws. More and more government intrusion. A further and artificial stifling of the economy.
Well read those bold numbers again and ask yourself if that’s what you’re willing to live with – because as it is going now, despite its rhetoric to the contrary, it is that with which this administration seems to be content to live.
And that is unacceptable – or should be.
When you see someplace begin to try to legislate feelings and intentions, well you’re looking at a place that is headed toward more and more authoritarian government. Tennessee recently passed a law which make it a crime to post images which cause “emotional distress” without a “legitimate purpose”.
One has no idea what constitutes “emotional distress” or how one decides if the “purpose” is “legitimate”, but it certainly suggests someone will and that someone will be the state.
(a) A person commits an offense who intentionally:
(4) Communicates with another person or transmits or displays an image in a manner in which there is a reasonable expectation that the image will be viewed by the victim by [by telephone, in writing or by electronic communication] without legitimate purpose:
(A) (i) With the malicious intent to frighten, intimidate or cause emotional distress; or
(ii) In a manner the defendant knows, or reasonably should know, would frighten, intimidate or cause emotional distress to a similarly situated person of reasonable sensibilities; and
(B) As the result of the communication, the person is frightened, intimidated or emotionally distressed.
When you see language like you see in this law, the extent to which it can be abused and used to, ironically, “frighten, intimidate or emotionally distress” someone supposedly in violation of it are evident.
Eugene Volokh finds it to be “clearly” unconstitutional. Here are his comments:
- If you’re posting a picture of someone in an embarrassing situation — not at all limited to, say, sexually themed pictures or illegally taken pictures — you’re likely a criminal unless the prosecutor, judge, or jury concludes that you had a “legitimate purpose.”
- Likewise, if you post an image intended to distress some religious, political, ethnic, racial, etc. group, you too can be sent to jail if governments decision maker thinks your purpose wasn’t “legitimate.” Nothing in the law requires that the picture be of the “victim,” only that it be distressing to the “victim.”
- The same is true even if you didn’t intend to distress those people, but reasonably should have known that the material — say, pictures of Mohammed, or blasphemous jokes about Jesus Christ, or harsh cartoon insults of some political group — would “cause emotional distress to a similarly situated person of reasonable sensibilities.”
- And of course the same would apply if a newspaper or TV station posts embarrassing pictures or blasphemous images on its site.
This is clearly the end-game of this pernicious trend that supports this pseudo-right we have to not be offended. Obviously, you have no such right. But when the state gets into this sort of territory, it is not headed toward the slippery slope, it’s bobsledding down the slope.
This is clearly a law designed to stifle what any person of “reasonable sensibilities” would call free speech. What most who understand the right emphasize is that its strength is in the fact that we don’t penalize those who say things we don’t like, but protect their right to do so even while we denounce what they say.
This is another of those freedoms that is constantly under assault by the authoritarians among us who, for whatever reason, think it is their job to control every aspect of our lives, to include what we can and can’t say. So, as in the case of Tennessee, they criminalized behavior which might “frighten, intimidate or emotionally disturb”.
Really – I can think of any number of movies which do precisely that for any number of people – is Tennessee going to ban them? Books? Political writing (that is intended to “frighten, intimidate or emotionally disturb” readers? If you’re from another state and you have a bumper sticker that “frightens, intimidates or emotionally distresses” someone (say an abortion sticker or one that denounces Islamists) am I subject to Tennessee’s liberty destroying law?
And how does this law coexist with our right, codified in the First Amendment, that claims we can speak freely without considering any of those concerns?
Busybody lawmakers with an authoritarian streak make bad law and shred our basic rights. I’m sure they’d explain it as an attempt to ensure others aren’t offended. I, on the other hand, find that sort of nonsense un-American and unconstitutional. Repeal the law, Tennessee. Rejoin the rest of the union and quit being so afraid of free speech. Most of all, grow up and quit worrying about others being offended. That’s their problem – not the state’s.
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