Civil libertarians have long ago lost faith in Barack Obama’s and his continuing expression of support for privacy and individual rights. Just in case anyone is still not convinced, consider the petition this month to the Supreme Court by the Obama Administration. Just last week, Obama waxed poetic about his commitment to privacy. Yesterday however, his Administration took another major swipe at privacy and asked the Supreme Court to reverse the United States Court of Appeals for the First Circuit, which held that the police could not conduct warrantless searches of your cellphone when you are arrested. The decision in United States v. Wurie is below.
Since there is a split in the circuits, there is a good chance for a granting of review by the Court. Civil libertarians are shuddering at the prospect of this Court getting their hands on this issue. The Obama Administration is again pitching its case to the most conservative members of the Court like Thomas, Scalia, Alito, and Roberts. It is an irony missed by many. While Democrats often discuss the need for a Democratic president to make appointments on the Court, the Obama Administration routinely relies on the right wing of the Court for its efforts to strip privacy rights and civil liberties.
The case from the First Circuit involves the arrest of Brima Wurie on suspicion of buying crack. The police seized his phone and used it to determine his address. They raided the home and found drugs, cash and guns. It is precisely the type of case that the Obama Administration knows will appeal to Alito, Roberts, and Thomas and probably pull in Kennedy.
The First Circuit simply held that the police could have easily gotten a warrant in this circumstance and should have. That is not enough for the Obama Administration. They want to strip cellphones of any and all protection after an arrest. What was truly striking about the case was the clearly frivolous argument presented by the Administration:
The government has . . . suggested that the search here was “arguably” necessary to prevent the destruction of evidence. Specifically, the government points to the possibility that the calls on Wurie’s call log could have been overwritten or the contents of his phone remotely wiped if the officers had waited to obtain a warrant. The problem with the government’s argument is that it does not seem to be particularly difficult to prevent overwriting of calls or remote wiping of information on a cell phone today. Arresting officers have at least three options.
First, in some instances, they can simply turn the phone off or remove its battery. . . . Second, they can put
the phone in a Faraday enclosure, a relatively inexpensive device “formed by conducting material that shields the interior from external electromagnetic radiation.” . . . Third, they may be able “to ‘mirror’ (copy) the entire cell phone contents, to preserve them should the phone be remotely wiped, without looking at the copy unless the original disappears.” Flores-Lopez, 670 F.3d at 809. Indeed, if there is a genuine threat of remote wiping or overwriting, we find it difficult to understand why the police do not routinely use these evidence preservation methods, rather than risking the loss of the evidence during the time it takes them to search through the phone. Perhaps the answer is in the government’s acknowledgment that the possibility of remote wiping guarded elsewhere by a co-conspirator. . . . Weighed against the significant privacy implications inherent in cell phone data searches, we view such a slight and truly theoretical risk of evidence destruction as insufficient. While the measures described above may be less convenient for arresting officers than conducting a full search of a cell phone’s data incident to arrest, the government has not suggested that they are unworkable, and it bears the burden of justifying its failure to obtain a warrant.
It is absurd to argue that, because it is theoretically possible that the contents of a device could be lost, all such devices should be stripped of all protections. However, it is a signature of the extreme views of this Administration. People can be arrested for a great variety of crimes, including relatively minor offenses. Yet, the Administration insists that a phone is no different from any other object found in a vehicle despite the fact that people now hold a huge amount of data, pictures, and messages on their phones. Today’s phones are little computers and are often used for everything from bills to personal communications. Indeed, the danger in this case is the fact that cellphones have changed since this arrest. This is how we ended up with the automobile exception to the Fourth Amendment. In Carroll v. United States, 267 U.S. 132 (1925), the Supreme Court held that the warrantless search of an automobile could be done without a warrant because of the exigent circumstances and difficulty in securing a warrant. The Court held that there was a lower expectation of privacy for vehicles — a self-fulfilling prophesy when you strip away protections. Later when telephonic warrants allowed for such searches to be done within the confines of a warrant-based search, the Court simply ignored the new technology and the lack of exigency.
The Administration knows that this older phone allows for an easier way to strip away privacy protections from citizens. That is why it is moving now. The war on privacy is now truly one of the most prominent elements of the Obama legacy. More than any modern president, his Administration has led a full frontal attack on privacy and has largely succeeded as Democratic leaders follow sheepishly in his wake.
This is an important case and the potential loss for civil liberties could be immense. It is the right Court and the right technology for the Obama Administration to add to a growing list of unchecked police powers in the United States.
Source: Washington Post
ap,
I just checked the spam filter–but didn’t find your comment.
Comment did not post. Could someone grab the first one, please. (Two are dups and then I tried a shorter version.)
Excerpt of interview with Jacob Applebaum on Democracy Now!, this morning :
“At its core, what is at stake is the ability for a human being to have dignity and for journalists to have integrity with their sources, [threatening] the whole concept of a free democracy,” says computer security researcher Jacob Appelbaum, who has been detained and questioned numerous times at airports. “And I don’t mean that as hyperbole, but if everything is under surveillance, how is that you can have a democracy? How is it that you can organize a political function, or have confidentiality with a constituent, or a source, or with a friend or a lover? That’s an erasure of fundamental things that we have had for quite some time.”
( http://www.democracynow.org/2013/8/20/uk_media_crackdown_greenwalds_partner_detained )
Jill 1, August 20, 2013 at 11:37 am
I have to say that the liberal defense of what is indefensible has been the most horrific part about how we came to this place.
*****
It’s the defense of some liberals…and the silence of others. And look at the members of the MSM–especially folks like David Gregory.
I have to say that the liberal defense of what is indefensible has been the most horrific part about how we came to this place.
All that is necessary for evil to flourish is for good men to say nothing (or in the case of Obama, to actively support it). I did not believe this would happen. I thought people who said it was wrong to commit torture, war, surveillance, fraudulent economic policy under Bush, I thought they meant that. It was to my horror when I found they did not. They were not against those things per se, they were against a Republican engaging in them. I was at first stunned by this and now I am really pissed about it.
What the right wing began under Bush, the left has nearly finished. The destruction of the rule of law, our best values as a society-almost gone. Had left wing people been able to keep true to their supposed value system, we would not be in this place today.
By the time Obama was elected even most people on the right thought all of this was both illegal and immoral. Suddenly, the left wing began ignoring, justifying and literally attacking anyone who sought to hold this govt. to the rule of law. They are still at it, even when the end result of such stupidity ought to be clear even to someone as well compensated as Toobin.
I find it very difficult to deal with Obama supporters. I have made a vow to come to their aid no matter what, something they would never do for a left wing critic such as myself or a right wing person. We are just vermin to them. I have seen us called that on this blog. But I have a real value system that no leader can take from me. I won’t look at them in the terms they have treated me. I have been called a traitor, a racist, a member of the tea party, told to get off this blog. I will not do that to an Obama supporter, nor will I ever use the terms, cancer cells or vermin that I have seen people use here against people they didn’t like. It’s the difference between having real convictions and having a football team mentality towards a political party.
I tried posting the same comment twice. Could someone retrieve one of them, please?
“And I don’t mean that as hyperbole, but if everything is under surveillance, how is that you can have a democracy?” -computer security researcher Jacob Appelbaum, computer security researcher
And, truly, this is where we are.
UK Media Crackdown: Greenwald’s Partner Detained, Guardian Forced to Destroy Snowden Files
http://www.democracynow.org/2013/8/20/uk_media_crackdown_greenwalds_partner_detained
Summary:
“The Obama administration has acknowledged it had advance notice British officials were going to detain David Miranda, the partner of Guardian journalist Glenn Greenwald, who has revealed the National Security Agency’s massive spy practices. Miranda was held Sunday at London’s Heathrow Airport under Section 7 of the British Terrorism Act for nine hours — the maximum time he could be detained without charge. Miranda has just announced legal action against the British Home Office for his detention. Meanwhile, The Guardian has revealed the British government threatened legal action against the newspaper unless it either destroyed Snowden’s classified documents or handed them to British authorities. “At its core, what is at stake is the ability for a human being to have dignity and for journalists to have integrity with their sources, [threatening] the whole concept of a free democracy,” says computer security researcher Jacob Appelbaum, who has been detained and questioned numerous times at airports. “And I don’t mean that as hyperbole, but if everything is under surveillance, how is that you can have a democracy? How is it that you can organize a political function, or have confidentiality with a constituent, or a source, or with a friend or a lover? That’s an erasure of fundamental things that we have had for quite some time.” We’re also joined by longtime British attorney Gareth Peirce.”
The link JT provided to Us v Wurie does not have a valid PDF file.
Here is another link: US v Wurie
Obama’s father was a con-man.
I guess Obama just can’t escape his DNA.
It’s not like we were warned. This is what happens when people trade liberty for security, you end up with neither. Sure we’ll see opposition but for the most part it will token at best. Conservatives have rarely been pro-fourth amendment (the typical attack on those who are against police abuse is that they’re pro-crime). They only liberties they defend regularlly are religion and gun rights. Even on gun rights they’re hypocritical as Adam Kokesh has pointed out.
https://www.youtube.com/watch?v=PIBwRhz0uFc&list=PLtpf9JFf-Xgd8vrnDfukl0kJTdjeiBvM8&index=19
Sure you can point to paleoconservatives like Pat Buchanan and Chuck Baldwin for being against this since 9/11 but their opposition to it is a means to an end. They and people like them are against it because they’ve been targeted.
As for the liberals aside for people like Glenn Greenwald, Dennis Kucinich and greens much of the liberal support for civil liberties disappeared when Obama took office.
Excellent Elaine..
The Snowden Effect, Continued
By Charles P. Pierce
8/20/13
http://www.esquire.com/blogs/politics/The_Snowden_Effect_And_Jeffrey_Toobin
Excerpt:
There is one thing for which we can thank Edward Snowden, International Man Of Luggage. His revelations clearly have delineated, once and for all, the parameters of liberalism’s inner authoritarian. We all have one, that little voice that whispers, “Not all slopes are slippery,” and we take its advice and then, 60 years or so later, we wonder how we all wound up in the ditch. Those parameters now appear to be sharply defined as Don’t Be Unpleasant To Me On The Teevee, and Don’t Inconvenience A President I Like. We’ve seen that over the weekend as various liberals half-defended the bullshit use of an anti-terrorism statute to detain David Miranda because of documents Miranda was carrying, which requires you to ignore the loud bell that ought to ring every time the British government starts using anti-terrorism statutes to conduct its intelligence business. (Ask the Irish what I’m talking about.) If the Brits thought that Miranda would be carrying documents he shouldn’t have had — and if, as appears likely, they were tipped by the American government to that effect — then they should have let the American government swear out a warrant on those charges and [c]onduct a proper arrest. Any argument aimed at mitigating the deployment of an anti-terrorism statute in this case is drowned out by the howls of political — and, I fear, personal — oxen being gored.
Comes now Jeffrey Toobin in The New Yorker, to kick things off with a slapstick comedy episode of Bad Historical Analogy Theater, after which he moves along to explaining how much damage Snowden may have done because, as we know, they are all honorable men, First, our drama critic steps in.
“The assassinations of Martin Luther King, Jr., and Robert F. Kennedy led directly to the passage of a historic law, the Gun Control Act of 1968. Does that change your view of the assassinations? Should we be grateful for the deaths of these two men? Of course not. That’s lunatic logic. But the same reasoning is now being applied to the actions of Edward Snowden.”
I am sorry, but I’d forgotten how, at trial, James Earl Ray mounted a defense saying that he’d iced Dr. King in order that the country might have more effective gun control. I know how much damage the assassinations of King and Kennedy did. I watched their funerals on TV. We have no idea what damage Snowden may or may not have caused. The NSA would like to tell us but, goshdarnit, they just can’t. And, of course, they are all honorable men. This is so far off the plane of the ecliptic that Toobin’s already halfway to Mars.
“In this debate, Snowden himself says, those who followed the law were nothing better than Nazis: “I believe in the principle declared at Nuremberg, in 1945: ‘Individuals have international duties which transcend the national obligations of obedience. Therefore individual citizens have the duty to violate domestic laws to prevent crimes against peace and humanity from occurring.’ ” ”
This is both mendacious and completely ahistorical. Snowden here is not remotely comparing anyone at the NSA to the Nazis, unless you believe that the Nuremberg principles, which were adopted after the defeat of Nazi Germany, were adopted merely to prevent the rise of the Fourth Reich somewhere in the world. Rather, they were statements in law acknowledging that what Hitler’s Germany did changed the paradigm of both nationalism and patriotism forever by perverting both of those concepts to monstrous ends. They apply universally. Is Toobin seriously arguing that the United States is, simply through its own inherent goodness, a place where the principles it primarily expounded do not apply? To say a country violated them is not to say that country is run by Nazis. It is to say that a country should check itself before it wrecks itself, and that its citizens have obligations to the common humanity that may supersede adherence to national laws. This is something with which, among other folks, Dr. King would have agreed.
“We must destroy the village in order to save it.”
“We must destroy privacy in order to save it.”
“We must take away rights in order to protect them.”
This has been the argument of many. The govt. always claims it must take the nuclear option to keep us “safe”. First the limits on keeping us “safe” are clearly delineated in the Constitution. The limits are bound by human rights, guaranteed by our founding document.
Secondly, and very significantly, there were a number of perfectly reasonable and effective options for preserving data while waiting for a warrant (aka, judicial oversight). It should be clear that the nuclear option is not about law enforcement, it is about lawlessness. It is about taking power over the people, the rule of thugs.
Even die hard Obama supporters, need to be honest about what is going on. I can’t believe that even they want this kind of power vested into the executive. Of course, maybe they do. But most of us do not want this type of society. We are going to have to work hard against the enormous power arrayed against us to tether the govt. to the rule of law.
Reblogged this on Eatgrueldog.
Obama is a dictator
Reblogged this on Brittius.com.
Nick… Nick… Obamas just doing what he’s supposed to do…. Guess he wants to be like Bush…. The Whitehouse got a new dog… Named it Sunny….
Ok…I feel safer now… Obamas asking the extremely conservative justices to rule in Hs favor…. Yippie…..
When all of DC is on vacation, this administration is hard @ work sticking it up our collective asses.