Book review - Enemies Within

When mainstream journalists muster up the courage to criticize the national security state they can't seem to let go of the notion that the world is a dangerous place. Their critique falls somewhere in between lamenting the loss of liberty and the mismanagement of the security apparatus.

Matt Apuzzio and Adam Goldman are two AP reporters who spent years researching their new "expose" on the security state - Enemies Within: Inside the NYPD's Secret Spying Unit and bin Laden's Final Plot Against America. The book takes a look at how the NYPD took advantage of national security apparatus and rain their own "demographics" unit. The backdrop of the book is the attempt to foil a supposed bomb attack in New York City.

True to form, Mr. Apuzzio and Mr. Goldman try to have it both ways. On the one hand they criticize the NYPD and the formation of its intelligence unit. They detail the ways in which the NYPD cultivated a vast array of paid and unpaid informants in Muslim communities. We find out how the police created detailed maps of mosques, delis, coffee shops and gyms across the city where Muslims gathered.

Then they criticize the NYPD for botching the surveillance of Najibullah Zazi. In the eyes of the authors, if only David Cohen had been more willing to cooperate with the FBI then all of the surveillance and the informants and the intrusions upon the personal liberty of the people of New York would have been worth it.

The operation was botched because Mr. Cohen's NYPD intelligence unit was more concerned about garnering headlines and acclaim for themselves than they were with working with FBI counter-terrorism agents as a joint task force.

Left unsaid is the assumption that something had to be done after the 9/11 attacks and that curtailment of some of our civil liberties and privacy was just the cost of being safe. But even with all of the sophisticated surveillance and other information gathering techniques available to the national security apparatus, Mr. Zazi and two of his friends managed to go to Pakistan and train with al-Qaeda. They learned to make bombs and set out to launch a suicide attack on the New York City subway system.

They also point out that after the 9/11 attacks the FBI was transformed from a crime-fighting agency to a counter-terrorism agency. Instead of reacting to and investigating crimes that had already occurred, the FBI attempted to become an agency that had the ability to predict the future - an agency that could catch the criminals before they had even committed a crime.

That change in mission is what fuels the ever-increasing need of the national security state to obtain more and more information on the citizenry. It's the mindset that allows secret national security (kangaroo) courts to authorize law enforcement to infringe upon the privacy of individuals without a showing that anyone broke the law. It's the mindset that allows government agencies to issue national security letters with the threat that should the recipient mention the receipt of such a letter he will go to prison.

In the end the book is hurt by the inability of the authors to step outside the mainstream journalist box and question the assumptions of the national security state. The answer is not to increase the efficient use of surveillance and intelligence-gathering tools, but to reduce the ability of the national security state to infringe upon our privacy. Unfortunately, with the revelations of the extent to which the government will go to obtain more and more information, our reasonable expectation of privacy has diminished to the point that it is barely existent.

So. in addition to scaling back the power of the national security state, we need to devise a new paradigm to determine just what constitutes a search because the one we have is fundamentally flawed.

Smoke and mirrors, please

It's a strategy as old as politics itself - whenever you get caught up in a shitstorm of bad publicity over a policy, go with the old misdirection play.

Past presidents have launched mini-wars (see Reagan with Grenada) or military assaults (Clinton in Sudan) to distract the public's attention from economic woes. The Bush II administration would play games with changing the alert colors anytime there was criticism of the excesses of the Patriot Act.

And so, with the Obama administration under assault from the left and the right over the NSA's domestic surveillance programs, it was high time to get the public looking somewhere else. Thus we have the big dramatic announcement that embassies in the Middle East and northern Africa are being closed down due to some vague terrorist threat that we only know about because the NSA has been listening in on everyone's phone calls and reading everyone's e-mails.

In the end there will be no terrorist attack. We will be told that the plot was foiled because of intelligence our government obtained as a result of policies that both invade our privacy and violate our civil liberties. There will be no way to verify the claims.

Those folks who dutifully follow the little bouncing ball will lose sight of our dwindling reasonable expectations of privacy and will be thankful that our government is looking out for us - even if it means we are less free today than yesterday.

House gives NSA data mining operation a thumbs up

Think the Fourth Amendment still means anything? Think you should be free from government intrusion into your private affairs absent probable cause or a warrant?

Think again.

This week Congress had an opportunity to take a stand in defense of the citizenry's right to be left alone by the government. This week Congress had the opportunity to channel the anger and frustration of their constituents brought about by Edward Snowden's revelations.

And the House of Representatives chose to give the American people a big middle finger instead.

Rep. Justin Amash (R-Mich) brought forward an amendment to a defense authorization bill that would put a stop to the NSA's secret collection of phone records. Mr. Amash said he put the amendment forward in order to protect the privacy of the American people.

The House shot down Mr. Amash's proposal narrowly. House Speaker John Boehner (R-Ohio) and Minority Leader Nancy Pelosi (D-Calif) both voted against the amendment. Opponents of Mr. Amash's amendment used the death and destruction of the 9/11 attacks as a reason for sacrificing the constitutional rights of their constituents. The argument follows the trope that all of this increased security and spying has kept us safe for the last twelve years.

This entire debate should serve as a reminder why opponents of the Constitution insisted on the Bill of Rights. Fearful of what a more centralized, stronger federal government could do, proponents of the Bill of Rights wanted a document that laid out a list of rights that were sacrosanct.

They foresaw a day when the government would move to limit those rights and they wanted them to be enshrined in a document that could prevent the government limiting them in the heat of passion. Unfortunately our courts have been only to eager to limit those rights in the face of allowing a guilty person to walk free because the police crossed a line.

This debate has nothing to do with preventing terrorism or keeping this country safe. It has everything to do with restricting our reasonable expectations of privacy. For once the government makes it known that our telephone records and e-mail metadata are subject to collection without so much as a showing of reasonable suspicion that anyone has done anything illegal, our right to be secure in our person, papers and effects is lessened.

And this is yet another reason that our old metaphors must change. While Justice Scalia's notion that the common law tort of trespass should be our lodestar when determining whether the state has violated the Fourth Amendment isn't adequate to cover government data mining operations, neither is this quaint notion of reasonable expectation of privacy.

Playing post office

So you plan on going "off the grid" in order to keep the government from keeping tabs on you. Los federales are storing all the metadata from every e-mail they can get their hands on. An NSA storage facility is being built in Utah so that the government can store every phone call.

Just don't count on your snail mail being secure.

Leslie Pickering of Buffalo, New York had no reason to believe that the government was poking around his postal business. That is, until he received a card in the mail by mistake alerting postal employees to flag all mail and packages sent to his home.

Welcome to the world of mail covers. Long before electronic surveillance there was another way in which the government kept tabs on who you communicated with. With just a letter to the postal service, law enforcement agencies can find out who's been sending you mail and packages.

While the letters and packages can't be opened without a warrant, the "metadata" on your snail mail can tell someone an awful lot about you - aside from the generic junk mail that accumulates in your mailbox. Who are you getting mail from? Letters? Packages? Zip codes?

In the old days the police would only send out the mail cover request when investigating a crime. But now, thanks to the War on the Constitution Terror, it's open season on privacy and your pen pals are in the crosshairs.

The simple fact of the matter is that we no longer have a reasonable expectation of privacy in anything. Our e-mails are monitored. The NSA intercepts and stores millions of telephone conversations. And Big Brother is peeking over your shoulder at the return address label on your mail.

I have said it before, and I will say it again, it's time to rethink our privacy paradigm. Maybe it's time to go back to the actual wording of the Fourth Amendment. Persons. Houses. Papers. Effects. Enough of the reasonable expectation of privacy. Enough of crafting metaphors for what computers and cell phones are.

Hanging on the telephone (metadata records)

It all started out innocently enough. A woman was robbed. She remembered the car the robber was driving. She started receiving threatening and obscene phone calls from a man who claimed to have robbed her. One night the man told her to go outside and she saw the same car she saw on the day she was robbed driving down her street. The police ran the license plate number and learned the identity of the driver.

She called the police to report the phone calls. The police, in turn, went to the phone company and asked them to install a pen register on the phone line of the man who owned the car in question. The pen register (a device that allowed the phone company to record the telephone numbers dialed from the phone line with the device), gave the police all they needed to connect the owner of the car to the phone calls and the robbery.

Now I shouldn't have to tell you what happened next. The owner of the car was arrested, charged with robbery and convicted. His motion to suppress the evidence obtained from the pen register was denied on the grounds there was no search. The conviction was upheld on appeal to Maryland's highest court.

Then the Supremes got hold of the case.

The Court held that the installation of the pen register didn't constitute a search because the defendant did not have a reasonable expectation of privacy as to the numbers he dialed from his phone. The Court also went to great lengths to explain that the contents of the phone calls weren't recorded, only the numbers dialed from the defendant's phone.

Fast forward to earlier this week and we find out that Verizon, among other providers, has been providing so-called meta data from phone calls on its network in response to an order issued by a secret court (Foreign Intelligence Surveillance Court). The government has been quick to point out that the only information obtained were the phone numbers dialed, the duration of the conversation, the location of the callers and the length of the call.

• Click here to read the secret court's order for yourself.

What's the problem los federales ask. We're just keeping tabs on who you're calling and how long y'all are talking for.

Of course, once confronted with the news that the government is spying on its own citizens, the director of national intelligence doesn't even waste his time with the time-honored non-apology apology. Nope, instead he goes straight for the blame the leaker card.

James Clapper, the director of National Intelligence, has released a statement, which, in part, says: "The unauthorized disclosure of information about this important and entirely legal program is reprehensible and risks important protections for the security of Americans."

Just because the Supreme Court got it wrong in Smith v. Maryland doesn't mean we have to follow that precedent. Yes, all of the information regarding who we call, how long we talk and where we are when talking may be found somewhere in the mammoth stack of data the phone of cell company maintains. In our increasingly connected world, such metadata has to be stored someplace, but just because it's stored in a server in the back room of the cellular provider doesn't mean the users of that service don't have a reasonable expectation of privacy as to whom they call and how long they talk.

These cases involving electronic privacy all start with the same incorrect premise that it is the state that determines what is private and what is not. In other words, if you follow the logic of the government in these cases you will come to the inexorable conclusion that, in the eyes of the state, nothing is private unless the government says it is.

Somewhere along the line we have forgotten that it is the people who are the sovereign in the United States. The Preamble to the U.S. Constitution begins with "We the people." Our government only has those powers that the people have ceded to it. The very notion that we only have a privacy interest in anything in which we have a reasonable expectation of privacy is badly flawed.

The truth is we have a privacy interest in everything that we do and anytime the government intrudes upon that privacy interest there is a search. The burden should not be on the individual to prove that he or she had a reasonable expectation of privacy, the burden should be on the state to prove that its intrusion into the privacy of an individual was not unreasonable.

This latest example of what the government has been doing since the 9/11 hysteria demonstrates that, not only, do bad facts make bad law, but that bad law perpetuates itself through the doctrine of stare decisis.

At least it's not a needle

Police arrest suspect. Police take suspect to jail. Police take suspect's fingerprints when he is booked in for identification purposes. Police collect other scientific evidence for use in solving cold cases.

What's wrong with this picture?

According to Supreme Court Justice Anthony Kennedy and four of his fellow justices, not a damn thing. You see, there's nothing overly intrusive about it. Just take a giant Q-tip and roll it around inside someone's mouth and you have instant DNA sample. No one is getting strapped down. Nothing is being injected in someone's body. And, best of all, now you have a DNA sample you can enter into a database to see if your new guest is implicated in any other crimes that have gone unsolved.

It is so strange, at times, to agree with Antonin Scalia. But, when it comes to Fourth Amendment issues, his goofy textualist philosophy generally works in favor of the accused. Justice Scalia wasn't concerned with the intrusiveness of the collecting of the sample. He didn't care if it was convenient. Justice Scalia had a problem with the fact that the sample would be used as evidence in investigating other crimes.

Oh, did I forget to mention the samples in question were taken without a warrant?

Yesterday the Nine in Robes decided by a vote of 5 to 4 in Maryland v. King, 569 US ___ (2013), that there was no need for the government to obtain a warrant to collect a DNA sample from someone arrested for a crime. Not convicted, mind you, just arrested.

The decision raises questions on various levels. First, since when do we equate a DNA sample to a booking fingerprint? The purpose of fingerprinting those arrested and jailed is for identification purposes. Down the road, should that person be convicted and find themselves on the wrong side of the iron bars again, that fingerprint card from the first arrest and conviction can be compared to the new card to identify those folks who have prior convictions are who are subject to enhanced sentences.

The fingerprints are also loaded into statewide and nationwide data bases that allow law enforcement agencies to compare fingerprints found at the scene of a crime to those taken of folks charged or convicted of various crimes.

The DNA evidence in this case would constitute scientific evidence that could be used against the arrestee in any other case in which there is a hit on his sample. The sample isn't being used for identification purposes, it's being used for investigative purposes. It is being obtained without the slightest showing of probable cause.

This decision, and all the other 5 to 4 decisions in matters concerning our rights under the Bill of Rights, raises questions about the reverence judges pay to the principle of stare decisis. If we are going to use these cases decided by one vote as precedent on which to base our rights, shouldn't we be concerned that in this vast democracy, a right was defined by one person who was not elected and is not accountable to the citizenry?

Furthermore, if a case is decided by but one vote, what does that tell us about the strength of the precedential power of that case? Knowing that the same facts could just have easily led to a different decision if the composition of the court was changed by one justice, should we rely upon those decisions to the same extent we rely on unanimous (or near-unanimous) decisions?

There is nothing magical about the nine who sit in Washington. They are men and women who have decided, based on nothing more than their own political beliefs, that they each know the correct method of interpreting a document written in the late 19th century - a document whose authors could never have imagined how much things would change over the course of 200 years.

Who's to say that Justice Scalia's textualism is any better than the idea that the Constitution and Bill of Rights are living documents that must change with the times? And where does the doctrine of original intent fit in? Does it really make sense to try to analogize the items of our modern society to the items at hand in 1800?

Time to change the model

Our current Fourth Amendment jurisprudence is based upon what now must seem like a quaint concept - the reasonable expectation of privacy. In order to determine if police action constituted a search the court would ask whether or not the target of the action had a reasonable expectation of privacy in what they were doing.

For instance, if the target of police action was talking on a pay phone (if you've never heard nor seen such a thing, just look it up on Google), it was not considered good cricket if the police tapped that phone to listen in on the conversation. In theory a person had a reasonable expectation of privacy when standing inside a phone booth - even though the phone wasn't in their home.

The test also worked against individuals when they had no legitimate expectation of privacy. Airport security is the best example of this. If the government tells you they are going to x-ray every bag and force everyone boarding a plane to walk through a metal detector or body scanner - you can't make a claim that you had a reasonable expectation of privacy regarding the gun in your bag.

But this paradigm has run aground. Justice  Sotomayor wrote about it in her concurring opinion in U.S. v Jones (see "Hey kids, get out of my yard!")

With all of our new shiny gadgets how much of a reasonable expectation of privacy do we have? Our e-mails sit on a server owned by a third party. Our cell phones have GPS devices that track us whenever the phone is on. Our conversations are carried in waves from tower to tower instead of in a cable buried under the ground. When registering products or buying stuff online we voluntarily give a third party our personal information. We post our every thoughts on Facebook and Twitter.

In short, the ways in which we communicate today have rendered the reasonable expectation of privacy test moot. And, as a result, the government has upped the ante by requesting reams and reams of personal data from internet providers and web service companies as a way of getting around that pesky requirement that they get a judge to sign a warrant.

Google publishes a transparency report that lets people know just how many requests for data they have received from government entities.

It turns out that Google received over 21,000 requests from government offices and courts during the second half of 2012 - an increase of 17% over the prior year and 71% over the number of requests in the second half of 2009. The United States government made some 8,438 of those requests. These requests range from the name associated with a given user account to e-mails.

The report also lets us know how often Google has complied either fully or partially when presented with a request. In 2012 Google complied with 66% of the requests, down from 70% the previous year and from 76% back in 2010. Google provided at least some data to the US government 88% of the time - down from previous years.

I guess this is the point we have to decide whether we're glass-half-full or glass-half-empty folks. On the half-empty side, Google is turning over information about 2/3 of the time a government entity requests it - and in almost nine of every ten requests from our government. That's a lot of data being handed over to the government about what we do online.

On the half-full side, the numbers do indicate that Google isn't just handing over the keys to the server upon request. Although los federales get at least some of the info they request 88% of the time, the rest of the requests go straight into the circular file. And there is no doubt that it frustrates government officials when they can't get what they want just by flashing a card that says they work for the government.

Ultimately we are going to have to redefine what "persons, houses, papers and effects" means as well as just what it means to "search or seize" something. Back in the day we used to write letters and drop them in a blue box with a stamp on them. Someone would then deliver those letters to people in other cities and states. Now we just type our messages on a computer and push the send button. Is there really a difference? Does it really matter whether the message is written on paper and placed in a sealed envelope or sent through the aether of cyberspace? We used to talk on corded telephones that required someone to attach a mechanical device if they wanted to listen in on our conversation. Now we talk on cell phones that record our location and send our voices through space. Is there really a difference between the two?

Justice Sotomayor is correct that we need to rethink our paradigm when it comes to search and seizure law. But maybe, just maybe, the answer is to look back to the actual words on the page and decide just what "persons, houses, papers and effects" means. Instead of creating balancing tests and checklists and looking for any excuse to create an exception to the written words, maybe we need to look to the words themselves.

Instead of looking at it from the perspective that everything must be reasonable unless..., maybe we should look at from the perspective that everything must be unreasonable unless...

Shucking the mark of the beast

How ironic it was that Northside ISD in San Antonio decided to put radio tracking devices on students' ID badges.

It's hard to believe that in that same city over 175 years ago a ragged band of Texians and other settlers decided that freedom from Mexican tyranny was worth dying for. (We'll just forget about the part where the Mexican government had declared that slavery was illegal over the objections of large landowners in modern-day Texas.)

Andrea Hernandez decided not to wear the device. She based her decision on religious principle. To Ms. Hernandez, the badge was the equivalent to the mark of the beast found in Revelations. I don't know what that makes driver's licenses and smart phones, but that's another topic for another day.

She wasn't the first student to rebel over the school district's plan to obliterate the concept of privacy on campus. But she was the one the school district decided to go after when she took off the badge and refused to put it back on. Northside ISD decided it's only recourse was to expel her from school.

That's right. There is no indication that Ms. Hernandez was a disciplinary problem. There is no indication that she's not a good student. So, because she rebels against an edict that violates her religious beliefs, we must kick her to the curb and get her out of the school. What an example we are setting for the other students.

This nation (and this state) were founded because a group of folks stood up when they felt they were being wronged. They made noise. They caused problems. They questioned authority. They listened to their consciences.

And now, in the name of keeping tabs on every single student on one campus, a cabal of so-called educators is doing its best to squelch out any dissent. Just why does the school administration need to know who's in the restroom and who's in the lunchroom and who's in the stairwell with a member of the opposite sex? Our schools are slowly becoming police states in what would appear to be an attempt to socialize our young folks with the attitude that authority must, without question, be obeyed.

Mr. [John] Whitehead said student tagging and locating projects were the first step in producing a "compliant citizenry". 

"These 'student locator' programmes are ultimately aimed at getting students used to living in a total surveillance state where there will be no privacy, and wherever you go and whatever you text or email will be watched by the government," he said.

No, children are not adults. No students don't have the same degree of privacy on a school campus as they would at home. But at some point we must draw a line. At some point we must stand up and say that enough is enough. Students deserve a certain degree of privacy. And that degree of privacy must trump a school adminstrator's desire to track their every move.

While I may find the source of Ms. Hernandez' opposition to the ID badges comical, I do salute her for standing up for what she believes. Her parents should be proud of the daughter they've raised.

Now we can only wait and see if a court values the right of a student to seek redress of her grievances over the insatiable desire of the state to control our each and every movement.

"A cell phone is not a pair of pants"

Anthony Granville got in trouble at school one day. I don't know for what. But he found himself with his hands cuffed behind his back and getting a free ride to the county jail.

The court's opinion just refers to Mr. Granville as having "caused a disturbance." Being that appellate courts are never shy about telling us just how badly a defendant behaved, I find it hard to fathom why the police were carting Mr. Granville off to jail.

But that is a discussion for another time and another day.

While sitting in the county jail, Mr. Granville's cell phone became quite the object of interest from a police officer who had nothing to do with Mr. Granville's arrest. It seems that he somehow caught wind that Mr. Granville had taken a picture of another student urinating.

Armed with this information the officer made his way to the jail, retrieved Mr. Granville's cell phone and, without obtaining a search warrant, began searching through the stored images. Lo and behold, he found the picture in question and Mr. Granville's day suddenly became worse as he was soon charged with the felony offense of "improper photography or visual recording."

Mr. Granville urged a motion to suppress the images on the grounds that the search of his cell phone constituted an unconstitutional search.

The prosecutor argued that the search was "simply a probable cause search of jail property that is a person's effects when they go to jail" and that Mr. Granville had no reasonable expectation of privacy in what was taken from him upon being booked into the jail. According to the prosecutor, a cell phone is the equivalent of a pair of pants.

The trial court was having none of it and granted Mr. Granville's motion.

But that wasn't the end of the matter as the State just couldn't let the matter go and appealed the judge's order suppressing the photograph.

In State v. Granville, No. 07-11-0415-CR (Tex.App.-- Amarillo 2012), the Amarillo Court of Appeals held that the warrantless search of a cell phone by a "stranger to an arrest" violates the Fourth Amendment. In its opinion, the court explained, in detail, why a cell phone is not a pair of pants.

The court explained that a cell phone is more like a computer and that the information contained within the memory of a cell phone provides a glimpse into the private life of the owner and that the use of passwords, encrypted programs and other security measures gave the user a reasonable expectation of privacy.

The court also took note that Mr. Granville's phone had to be turned on by the officer who decided he needed to snoop around and look at the photos stored on the phone. The fact that the phone had been turned off was another indication that Mr. Granville had a reasonable expectation of privacy.

Finally the court addressed the issue of whether a pre-trial detainee (arrestee) has a privacy interest in his cell phone. Mr. Granville was arrested for a Class C misdemeanor (for those outside the Lone Star State, that is the equivalent of a traffic ticket). He was not going to be held in custody for long and he certainly wasn't the type of person that the ordinary citizen would think should be locked up. The court stated that, because a pre-trial detainee has the opportunity to post bond and get released that he has a greater privacy interest in his personal property than an inmate.

I leave y'all with this quote from the opinion:

While assaults upon the Fourth Amendment and article I, § 9 of the United States and Texas Constitutions regularly occur, the one rebuffed by the trial court here is sustained. A cell phone is not a pair of pants.

Droning on and on and on

It's always amusing when a right wing-nut suddenly becomes a champion of privacy and the citizenry's right to be left alone by the government. They have no problem with the government telling folks with whom they can sleep. They have no problem with the government telling folks who they can and cannot marry. They have no problem sticking their noses up a woman's uterus and telling her what medical procedures she can and cannot have. They have no problem with the steady erosion of the Fourth Amendment.

But now Ted Poe's a believer. He is up in arms about the possibility of unmanned drones patrolling the skies over Houston.

"There will be some more changes in that it will be specific about law enforcement use, civilian use, and commercial use, and the overriding concern about constitutional protection of the Fourth Amendment and the right of privacy," Poe said of the legislation, which he did not expect to be considered until next year. "So were going to get everybody involved in that situation before we see more drones in the air."

Of course as long as the drones are flying over the Middle East and dropping bombs on dark-skinned folks Mr. Poe hasn't a problem.

But I'm more than happy to welcome Mr. Poe to our side in the fight against government intrusion in our lives. I'm more than happy to have him push for the restoration of our Fourth Amendment rights against unwarranted government search and seizure.

I share Mr. Poe's concerns about the dangers of unmanned drones over Houston. With their eyes in the sky, the police will be able to see things they could never see without a search warrant. They will be able to see things they would never be able to see absent a showing of probable cause.

And, if the test to determine the reasonableness of a search then unmanned drones will all but do away with any reasonable expectation of privacy we might have outside our homes. If the owner of a piece of land also is considered to be the owner of the earth beneath him, maybe the answer is to extend that "ownership" to the space above as well. Just a thought.

The unmanned drone lobby (yes, there is such a beast) argues that the more drones, the merrier.

Gretchen West, executive vice president of the Association for Unmanned Vehicle Systems, said the introduction of drones into the nation's airspace could add 23,000 new jobs by 2025. Her group of 6,300 members includes 225 in Texas, including BAE Systems, Lockheed Martin, and Raytheon.

Well, there you go. You do have a choice. You can choose between your right to privacy or jobs. In these economic times it would be just plain unpatriotic to sacrifice jobs for the Fourth Amendment.

It couldn't be that BAE Systems, Lockheed Martin, Raytheon and the other members of the drone lobby make their profits off the threat of continual war, could it? These companies have sat down at the public trough and taken our tax dollars to produce items whose sole purpose is to kill. These companies pump massive amounts of dollars into political campaigns in order to prevent the bloated defense budget from being cut down to size.

So, Ted, I'm with you, man. Let's work together to get the government out of our private lives. Let's work together to strengthen the Fourth Amendment. Let's work together to end the military-industrial complex.

I got my "i" on you

We live in an age where we are encouraged to spy on our neighbors, co-workers and friends. It's all about conformity and ratting out anyone who dares to do something other than the ordinary.

Well, maybe not exactly, as we don't like those damn whistleblowers like Wikileaks that dare to expose our government's deep, dark, dirty secrets. The last thing we seem to want is to know just what our government does in our name. We certainly don't want someone like Bradley Manning letting the world know that the United States violated just about every international convention regarding torture and the treatment of alleged enemy combatants.

Now the paranoia patrol has come to Houston. Just take a gander at the new iWatch Harris County mobile phone app. Now the shiny gadget brigade has the ability to watch crime and rat out those suspicious looking folk they see hanging about.

Just think, it's even easier to spy on your neighbors and that hippy do-gooder living down the street. What better way to get around that pesky little Fourth Amendment than having normal everyday citizens poking their noses into everyone else's business? After all, the Fourth Amendment just protects us against overreaching by the state.

In Texas, however, we do at least have the additional protection of Article 38.23 of the Texas Code of Criminal Procedure that allows a jury to exclude any evidence that was obtained illegally - whether by the police or a private citizen. That is, if you can convince a jury to ignore the bad stuff your client did and focus in on the actions of the other party.

I wonder if the app will allow someone to report incidents of police brutality. What about illegal searches and pretextual stops? Testilying on the stand? Probably not.

The government knows best

The State of Texas has decided it is qualified to tell doctors how to run their practices and what to tell their patients. According to a proposed rule for the state's Women's Health Program, doctors would not be allowed to provide abortion counseling for their patients.

The gag order would extend to other doctors in the practice - even if they aren't participating in the program - as well as to other patients who are not in the program.

The purpose of the rule is very clear. It's yet another attempt by the far right to limit women's access to abortion. It's yet another example of the government getting involved in an area in which it has no business being involved. Our beloved state legislators are barely capable of doing that job (and everyday I am thankful that they are only allowed to meet for 140 days every other year); they are not qualified to stick their noses in the conversations that doctors have with their patients.

I understand that there are those who are adamantly opposed to a woman's right to have an abortion. Ironically, most of them have no problem with the state murdering inmates - but that's another story for another day. Of course most of them are also opposed to the coverage of birth control under the Affordable Care Act - but intellectual consistency has never been the calling card of the far right.

The proposed rule would seem to run afoul of that little thing we refer to as the First Amendment. The rule would impose a limitation on the ability of doctors to speak freely with their patients. It would subject the doctor to penalties should he provide abortion counseling to his patient.

Once again we find the far right cheering on the government's attempt to invade the privacy of its citizens without any apparent irony considering the tea baggers' insistence that the power of the government must be limited.

Prying eyes in the desert

Had up to here with airport security, TSA, drones and government data-mining of phone calls and e-mail? Well, the latest device in the government's ongoing war against your right to be left alone are license plate recognition devices in the Arizona desert.

That's right. Clusters of cameras have been placed in the Arizona desert - in some cases quite far from the Mexican border. These clusters include both regular surveillance cameras as well as devices that read license plate numbers and send the data to a site in Virginia for storage. The device also records the date, time and location of the car tracked.

Of course the government claims this is the latest tool needed to fight the scourge of drugs. The information retrieved by the devices can then be shared with local, state and federal law enforcement agencies for whatever purpose they deem necessary.

The DEA has installed the devices in California, Arizona, New Mexico and Texas. Next up are plans for installing them further inland.

Writes, G.W. Schultz of the Center for Investigative Reporting:

In their unending battle to deter illegal immigration, drug trafficking and terrorism, U.S. authorities already have beefed up border security with drug-sniffing dogs, aircraft and thousands more agents manning interior checkpoints. 

Now, the U.S. Drug Enforcement Administration has decided it wants more, and the Justice Department agency doesn't care whether someone has even set foot in Mexico.

Need I go any further?

Bet you didn't know that just by driving down the highway in Arizona, minding your own business, you were under suspicion for illegal activity. The notion is absurd. I'm also surprised that Homeland Security didn't get involved in this and claim that the devices would cut down on terrorist activity in the Southwest.

Oh, no terrorist activity in the Arizona desert? Well, that's just a little detail we don't need to worry about at this time.

This country was founded on the principle that the people have a right to be left alone by the government. The Bill of Rights enshrines that doctrine. But with a judiciary that would rather kowtow to law enforcement than exercise sound judgment, our right to be left alone has withered away to the point of extinction.

The Fourth Amendment is on life support as the result of a thousand paper cuts over the years. Judges are more worried about outcome than they are principle. You know the drill - if the court were to uphold the words of the Fourth Amendment, the bad guys would get away; therefore we must make an exception to the rule in this case... and in that case... and in this other case. You do it enough, there is no doctrine left.

We have the right to be left alone. The police don't have the right to interfere with your daily routine unless they have reasonable suspicion (itself an example of the courts taking liberties with the Fourth Amendment) that you have engaged in some type of criminal activity. These devices in the desert are only the latest method the government has dreamed up to circumvent that basic notion.

Death by a thousand cuts?

Last week Manhattan Criminal Court Judge Matthew Sciarrino, Jr. ordered Twitter to hand over three months worth of Occupy Wall Street protester Malcolm Harris' tweets and his personal information. Mr. Harris was one of hundreds arrested for holding a protest on the Brooklyn Bridge last October.

Manhattan prosecutors allege that Mr. Harris' tweets during that period belie his contention that he thought the group had police permission to march across the bridge. The tweets, of course, were deleted after the fact.

In his ruling, Judge Sciarrino declared that Mr. Harris had no standing to challenge the district attorney's subpoena for the records as the information was held by Twitter. In the past Twitter has argued that the individual tweeter "owned" the information and had standing to challenge any government requests for the records.

Now Twitter may find itself in the position of being forced to challenge each and every one of those requests itself. If that's the case, just how much longer can Twitter fend off government requests for user information? At what point does it become too expensive to stand up for principle?

But maybe that's the price that is to be paid for the one social media providers that has refused to bend over and grab its ankles when the government comes calling for records. Other firms have opened their doors wide open whenever someone wearing a dark suit, sunglasses and an earpiece comes a-knocking asking for user records. Twitter has been alone in standing up to the government in its attempts to data-mine user information.

So, if you can't get what you want, just make it so damn expensive and inconvenient that that other side finally just says "here, come and get it." That's what the government's strategy is. And that's something that should worry us all.

Because it's not just the content of the tweets that's at issue. It's something that many people still have a hard time coming to grips with in our social media age - once it's online, it's out there for all to see and it doesn't go away. But it's more than just a case of wishing you hadn't tweeted something - it's about the user's personal information, followers, IP addresses and locations.

Maybe you lost your ability to keep your tweets to yourself when you hit that send button, but did the people who follow you lose their freedom of assembly? Does the government have any business digging around to figure out where you were when you sent that tweet? Does the government have any business knowing whose computer you were using?

When Matthew Harris hit that send button, his tweets became as much a part of the public record as if he had stood on a soapbox and spoken through a bullhorn. But that doesn't mean his followers gave up their right to be left alone by the government.

Congress mulling bill to extend warrantless wiretapping

The Foreign Intelligence Surveillance Act (FISA) was signed by President Jimmy Carter in 1978 and it laid out the rules by which the government could spy on citizens it thought were involved in acts of espionage against the US government. The original bill dealt with people who were spying on behalf of another government.

Following the 9/11 attacks, President Bush, with the assistance of a bunch of weak-willed Democratic congressmen, signed the USA Patriot Act which expanded FISA's coverage to individuals alleged to be working for terrorist groups not associated with another government.

But enough of the history of the erosion of our right to privacy. Since no one raised a stink then, your expectation of privacy in your conversations has been greatly reduced - almost to the point of being non-existent.

In both the Senate and the House, the Judiciary committees have approved a bill extending the amendments to FISA until 2017. The House committee voted along party lines while the Senate committee approved the bill overwhelmingly. The bill now goes before both houses.

The bill will allow los federales to continue to intercept all telephone conversations, e-mail correspondence and other digital communications between two or more people suspected of being involved in terrorism - even if one of the parties happens to be an American citizen.

How interesting that the Republicans, the so-called champions of limited government, are behind this expansion of governmental power whole-hog. Who the hell needs a warrant to gather all the digital information they can store despite that pesky little Fourth Amendment thingamobob?

Come on, tea baggers, explain how you can go out into the streets yelling and screaming that President Obama is enslaving the American people by requiring them to purchase health insurance, but you are more than happy to let the government intercept our fellow citizens' telephone conversations without so much as a warrant. We mustn't allow the government to regulate industry or pass laws to reduce pollution because that's just so un-American - but it's alright to ignore the plain meaning of the Constitution just because someone with a badge says someone else is up to no good.

Of course that's just details, I'm sure. We certainly can't expect anyone to have an intellectually consistent (not to mention "honest") position when it comes to the leash on government power.

In the meantime, just be secure in your knowledge that, slowly but surely, as sure as the day is long, your reasonable expectation of privacy in anything in anyplace at any time will disappear as if it never existed. You wanted security at the expense of freedom. You've made your bed, now sleep in it.

Another assault on privacy

It's just never enough. No matter how much data the US government can collect on citizens, there is always more data just out of reach.

Last week the European Parliament voted to pass a bill allowing the US Department of Homeland Security to have access to the Passenger Name Records of any airline either operating out of the 27 countries of the European Union or any other airline incorporated or "storing data" in the EU.

And, no, you shouldn't need to ask why los federales need such information. It's the latest salvo in the war on the right to be left alone terrorism. Apologists for the overreaching arms of the state will point out that such information allowed the United States to catch various baddies over the years.

And now ordinary folks from across the pond will be giving up some of their personal data to Big Brother for the privilege of coming to America.

Some MEPs say the proposals leave too many unanswered questions, such as how will the US use this information, how long will it keep the data and who will have access to it? 

Dutch Liberal-Democrat MEP Sophie in 't Veld was involved in drafting the proposals but voted against the bill. 

"The results of the vote show clearly that there are very strong reservations against this agreement. However, the US made it very clear that a 'no' vote would be answered by suspending visa-free travel to the US," she said. 

"Many colleagues - understandably - did not want to make this sacrifice. But it is highly regrettable that the fundamental rights of EU citizens have been bargained away under pressure."

And why did the EU prostrate itself before the United States and agree to give up personal data on their citizens? Because of threats by the United States to suspend visa-free travel from Europe. Oh, the things our representatives are willing to cede on our behalf for the convenience of others.

Somewhere along the way in this war on the Bill of Rights terrorism, the government has forgotten one very important proposition. The proposition that we are all innocent unless proven guilty. Slowly, but surely, our basic right to be left alone by the state has eroded - and continues to erode because few people are willing to stand up and do anything about it.

Most folks will stand in that line at the airport and grumble about having to take off their shoes or pass through a full body scanner or have to suffer the humiliation of a scope and grope and just complain. Well, I guess that's just the price we pay for safety, they say.

This isn't about safety. It's about the unencumbered intrusion of the federal government into our private lives. It has to stop or else one day you will wake up and wonder where your right to privacy went.

Mussolini made the trains run on time

It was bad enough when airport harassment security was handed over to the newly-formed TSA following the attacks on 9/11. Of course the real tragedy was the attack on the Constitution by our own government using 9/11 as an excuse to crack down on rampant civil liberties.

It was a mild pain in the ass to travel by air prior to the hijackings. But since that time we have seen one more intrusion into our privacy after another. Every few months the muckety-mucks at TSA decide to implement a new strategy to fight yesterday's attack.

If you read Scott Greenfield yesterday you know about the sudden insights that Kip Hawley has had since he quit running TSA. While he is now troubled by the intrusion into travelers' privacy, it didn't seem to bother him too much when he was running the show.

Last night my colleague Mark Bennett posted a piece on his blawg that went beyond merely disturbing. Now Mark and I share a couple of things in common - neither one of us will fly as our little protest against the means by which los federales have used to trample the privacy rights of the citizenry. It turns out that TSA is not satisfied with fucking airport security up beyond belief. Now it's their mission to fuck up the rest of the nation's transportation system.

TSA's VIPR (Visible Intermodal Prevention and Response) unit descended upon Houston recently and trampled upon the rights of folks hopping a ride on METRO. That's right. Somehow it's now under TSA's purview to implement security measures for those so brazen as to take advantage of public transportation.

Law officials performed random bag checks, conducted sweeps with our K-9 drug and bomb-detecting dogs, and assigned both uniformed and plainclothes officers at transit centers and rail platforms to detect and prevent criminal activity. 

At a news conference last Friday, METRO Police Chief Victor Rodriguez called METRO's transit system one of the safest in the world. "We at METRO take our responsibility seriously. We have a safe and secure system," said Rodriguez. "This initiative is going to help us maintain and enhance the safety of our system. It takes this collaborative effort to synergize those expertise and skills for the benefit of all of Houston." 

Doyle Raines, general manager at the Transportation Security Administration, said Rodriguez invited the TSA to bring its viper teams to join in this grassroots pilot program that grew from a peer advisory group of mass transit police chiefs and security directors that included METRO's Rodriguez. 

The VIPR squad, assisted by the Harris County Sheriff's Office, the METRO police and Harris County Constables carried out a counter-terrorism exercise by subjecting riders to "random" bag searches and K-9 sniffs. The stormtroopers agencies recorded eight felony arrests.

So tell me, Mr. Rodriguez, just how many of those who got arrested were subjected to searches without probable cause? Not that it matters, I suppose, because the courts in Harris County aren't known for suppressing searches just because the police might (and i stress might) have overstepped their legal authority. I mean, the guy had the goods on him, didn't he?

Houston Congresswoman Sheila Jackson Lee (who has never missed an opportunity to mug for the camera) exclaimed that she was ecstatic that the TSA was subjecting bus riders to the same inconveniences that airline passengers put up with.

But how many people had their rights trampled upon? How many times did the police ignore the proscriptions of the 4th Amendment and subject folks to unreasonable search and seizure? How much more of this can we endure? How long until even the most docile American stands up and tells the government that enough is enough?

We used to have a reasonable expectation of privacy. Not any more. At the airport you have none. At home the NSA is downloading all of your phone calls and internet searches. And now, the people who take public transportation (and down here that's mainly folks who can't afford a working car) have none.

If you're fed up here's your chance to do something about it. METRO will hold its next board meeting on April 26, 2012 in the second floor boardroom at 1900 Main at 9:00 a.m. Let's pack the room and let METRO know how we feel about the steady erosion of our rights.

Mark is mad as hell and I can't take it anymore.

Bennett for Court of Criminal Appeals

If there was ever a place that needed a proponent of limited government it is the Texas Court of Criminal Appeals. In no other area is the need to limit the power of the government quite as profound.

The government has the power to take away a man's life - either by force or by time. It is the most frightening power imaginable and it is that power that must be limited. And the most effective way to limit that power is to enforce the right of the people to be left alone by the government.

That right, in turn, is protected by the Fourth, Fifth and Sixth Amendments. The courts have only been too happy to ignore the words in the Constitution and substitute their notion of judicial efficiency and economy in their place. In order to affirm lower court decisions, our appellate courts have looked for every possible way to justify actions of the state that violated the provisions of the Fourth, Fifth and Sixth Amendments.

Into the void must step a person who is willing to stand alone to defend those rights.

Mark Bennett is that person.

Mark can be abrasive. He can be snarky. He can be a tad bit arrogant. But he is also a man of conviction. He is a man who believes that the power of the government must be limited by enforcing our right to be left alone.

Mark Bennett is running for a seat on the Texas Court of Criminal Appeals as a Libertarian.

Now if you're happy with the current state of the criminal (in)justice system in Texas, Mark isn't your man. If you think it's okay for the Chief Judge to shut down the clerk's office to prevent a man's attorneys from filing a last minute pleading, then Mark isn't your guy. If you don't understand that when the state takes away the rights of those people, that they are taking away your rights, then Mark isn't for you.

But if you believe that right must trump expediency, then you need to get out and vote for Mark Bennett.

See also:

"Mark Bennett, Court of Criminal Appeals," Simple Justice (March 5, 2012)

Who really wants limited government?

Mitt Romney, Rick Santorum, Newt Gingrich and every other wingnut and wanna-be wingnut preach that government is too big. That's it's too powerful. That the biggest threat to liberty is government.

The government wants to micromanage. The government wants to intrude into our daily lives.We want limited government!

Really?

If the current batch of Republicans seeking the party's nomination for president really want to limit the size and scope of government, then why the hell are they involving the government in what folks do in their bedrooms?

I understand why Catholic organizations are a bit miffed that they are being required to provide their employees with coverage for birth control. On the other hand, I think the Catholic church did a good job in encourage Catholics around the world to make more Catholics. Now, with some seven billion of us sharing the earth, I think the time for that policy has long since come and gone.

Perhaps someone can help me out on this, but I don't recall a commandment that reads "Thou shalt not use birth control." That was but a proclamation by the head of the church.

We don't need to politicize health care. We are living with the vestiges of a system designed to stave off the Red Menace back in the 40's and 50's. Employers began offering health care coverage to their employees as a way of placating the unions. Now we're stuck with a bunch of for-profit companies making health care decisions based on cost operating under different rules in every state. It also means that people risk losing their coverage if they change jobs and many whom lose their jobs can't afford the astronomical cost of continuing their coverage.

But that's all beside the point.

We all have the right to be left alone by the government. And defending that right is the essence of limited government. It's not the government's business what a couple does in their bedroom. If a church wants to raise a stink about whether folks conduct themselves according to a code of morality - that's fine. We are all free to ignore what the church says.

But we can't just ignore what the government says. Especially when what it's saying relates to our private conduct.

Folks who work for Catholic organizations have just as much right to the same level of health care coverage as someone working for Ford or Google or the government itself. It's not the workers' fault that our health care delivery system is fatally flawed.

But it is the utmost in hypocrisy for presidential candidates to climb up on the soapbox and preach against the evils of government and the need to reign in its powers and then advocate that the government stick its nose into our bedrooms.

Using the children as a shield

What could possibly go wrong when our legislators set out to do "something for the children?"

I mean, there's no way that Congress would use the kiddos as a smokescreen to enact a piece of legislation that would make it easier for law enforcement to collect data on the citizenry. Right?

Take just a second to think about that. HR 1981, otherwise known as the Protecting Children from Internet Pornographers Act of 2011, is yet another power grab by the state promoted under the guise of protecting someone from something terrible.

Under HR 1981, internet service providers would be required to keep a log of the temporary network addresses (IP addresses) assigned to its subscribers so that los federales can access the information should they get a bee up their butt that someone has been looking at something naughty on the internet.

Under H.R. 1981, which has the misleading title of Protecting Children From Internet Pornographers Act of 2011, Congress would force commercial Internet access providers to keep for one year a “log of the temporarily assigned network addresses the provider assigns to a subscriber to or customer of such service that enables the identification of the corresponding customer or subscriber information under subsection (c)(2) of this section.”  Let’s break that down into simple terms.

An IP address is a string of numbers that indicates the general location where someone accessed the internet. The IP address isn't unique to the user. It isn't even unique to the computer. If you use an unsecured wireless system someone can sit in the street in front of your house and access the internet using your connection. The IP address would be the same as if you accessed it from your study.

But the bigger problem is having Big Brother looking over your shoulder while you cruise the internet. Sure, there are people looking at naughty pictures on their computer screens. There are also people following the Syrian government as it kills off its own people. There may even be some folks writing subversive blog posts about the overreaching of the state.

We all have a right to be left alone. It is, as I have said before, the most fundamental right we have. We shouldn't have to worry about what records our internet service providers keep regarding our browsing. Hell, even the folks over on the right are upset about it.

H.R. 1981, one of the newest pieces of internet legislation to be debated, is a huge threat to our privacy. Under the auspices of protecting our children from pornography, it is simply a cleverly-disguised way to force online service providers to spy on your online activities and provide that information to the government.

There's a reason those in power couch their intentions to intrude into our private lives the way they do. Who on earth would be against a bill designed to protect our youth from the scourge of drugs? Who would opposed a bill designed to protect our nation from terrorists? Would would dare challenge a bill meant to protect our children from the pornographers?

But it's all just a ruse. All the state needs is for that tent to be lifted just high enough to get its nose underneath it. And once that nose is under the tent it's just a matter of time until the whole damn camel is snuggling up next to you in your sleeping bag.

By then it's too late.