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
” … because of the exigent circumstances and difficulty in securing a warrant.”
My goodness. And I had always thought that the Constitution had one great purpose above all others: namely, to make the exercise of limited and enumerated state powers as difficult, costly, and time-consuming as possible — with every intent and reasonable expectation that such difficulties would make the arbitrary exercise of state power as rare as human design could make it.
“Convenience of the Government”? Who in their right mind would ever advance that canard as a constitutional argument for any law worth having?
Somewhere along the line, the former democratic republic of the United States just crawled up its own ass and died, as T. S. Elliot said: “Not with a bang, but a whimper.”
“There’s a lot of stuff on HuffPo that I never bother reading. The site is a good aggregator, though, of many important stories. Their articles often include links to other articles.”
That sums up how I use HuffPo as well, Elaine. Much of their original content I find to be as suspect and slanted as most other MSM.
Speaking of self-anointed “news” sources, we have the happily unfair and unbalanced — if not unhinged — example of Republican State Cable Television: My impression of the typical “analytical” episode:
All the news that’s fit to sling.
Jill,
Hey, MSM: All Journalism is Advocacy Journalism
By Matt Taibbi
POSTED: June 27, 2013
http://www.rollingstone.com/politics/blogs/taibblog/hey-msm-all-journalism-is-advocacy-journalism-20130627
Excerpt:
So New York Times Dealbook writer Andrew Ross Sorkin has apologized to journalist Glenn Greenwald for saying he’d “almost arrest” him, for his supposed aid and comfort of NSA whistleblower Edward Snowden. “I veered into hyperbole,” was Sorkin’s explanation.
I got into trouble the other day on Twitter for asking if David Gregory may have just had a “brain fart” when he asked Greenwald his infamous question, “To the extent that you have aided and abetted Snowden, even in his current movements, why shouldn’t you be charged with a crime?” I hadn’t seen the show and had only read the quote, and quite frankly, I don’t watch a lot of David Gregory. Apparently, in context, even the question I asked is absurd (more on that later). But Sorkin is different. For Sorkin to call his outburst an accident, that I know is hilarious.
Did he also “veer into” a long career as a shameless, ball-gargling prostitute for Wall Street? As Jeff Cohen eloquently pointed out on HuffPo, isn’t Sorkin the guy who’s always bragging about how close he is to top bankers and parroting their views on things? This is a man who admitted, in print, that he only went down to Zucotti Park after a bank C.E.O. asked him, “Is this Occupy thing a big deal?”
(Sorkin’s reassuring response: “As I wandered around the park, it was clear to me that most bankers probably don’t have to worry about being in imminent personal danger . . .”)
And when Senator Carl Levin’s report about Goldman’s “Big Short” and deals like Abacus and Timberwolf came out, it was Sorkin who released a lengthy screed in Dealbook defending Goldman, one I instantly recognized as being nearly indistinguishable from the excuses I’d heard from Goldman’s own P.R. people.
But the biggest clue that Sorkin’s take on Greenwald was no accident came in the rest of that same Squawk Box appearance (emphasis mine):
I feel like, A, we’ve screwed this up, even letting him get to Russia. B, clearly the Chinese hate us to even let him out of the country.
I would arrest him . . . and now I would almost arrest Glenn Greenwald, who’s the journalist who seems to want to help him get to Ecuador.
We? Wow. That’s a scene straight out of Malcolm X. (“What’s the matter, boss, we sick?”) As a journalist, when you start speaking about political power in the first person plural, it’s pretty much glue-factory time.
The irony of all of this is that this whole discussion is taking place in a phony “debate” that’s now being cooked up about the legitimacy of advocacy journalism, which is exactly what Sorkin practices when he goes down to Zucotti Park on behalf of a bank CEO or when he talks about how “we” screwed up, letting Snowden out of the country. Preposterously, they’ve made the debate about Glenn Greenwald, who absolutely does practice advocacy journalism. But to pretend he’s the only one is lunacy.
All journalism is advocacy journalism. No matter how it’s presented, every report by every reporter advances someone’s point of view. The advocacy can be hidden, as it is in the monotone narration of a news anchor for a big network like CBS or NBC (where the biases of advertisers and corporate backers like GE are disguised in a thousand subtle ways), or it can be out in the open, as it proudly is with Greenwald, or graspingly with Sorkin, or institutionally with a company like Fox.
But to pretend there’s such a thing as journalism without advocacy is just silly; nobody in this business really takes that concept seriously. “Objectivity” is a fairy tale invented purely for the consumption of the credulous public, sort of like the Santa Claus myth. Obviously, journalists can strive to be balanced and objective, but that’s all it is, striving.
Jill,
There’s a lot of stuff on HuffPo that I never bother reading. The site is a good aggregator, though, of many important stories. Their articles often include links to other articles.
I’m getting past the point of caring.
“I’m getting past the point of caring”
If they can’t convince you the next best thing is to wear you out and make you apathetic.
L.K. I hang out with many people who are firm believers in HuffPo, even in the Green party. They aren’t stupid, they’re highly educated. Each site gets tailored to its viewers. If you watch the site carefully, you will see who they are going after. Huffpo goes after one set, evidently, you are not in their target market.
There is a reason that so many leftist stopped standing up for their own prior stated value system. That reason is in part the work of highly sophisticated propaganda. I’m not kidding about Fmri used to “focus” the message. The govt. is very good at what they do and I think it is a real mistake to underestimate how powerful they are at reaching us.
Man, thank goodness a drug case came along so the Administration would have an ‘acceptable’ hook on which to hang this power grab. /s
Jill: “Elaine, The internet isn’t free of propaganda either. Just yesterday, trusted “liberal” newz site, Huffington Post, lied to….”
***
With all lightness and affection: if you’re hanging around with ‘liberals’ that think HuffPo is a trusted liberal site, you need to find smarter liberals to hang with. 🙂 Srsly.
*****
AP, Jacob Appelbaum has been harassed for a long time, at least since 2010. When I first read about Mr. Mirada I immediately thought of him.
There is a list. One doesn’t want to be on that list.
Rolling Stone is akin to Democracy Now! and ProPublica? Diane Ravitch is akin to The Guardian and David Sirota? ThinkProgress is akin to The First Amendment Center?
Thanks Elaine for your list and I’ll look at yours also, Squeeky. i’m sure Elaine can speak for herself but it was my impression that she was giving a list to help add her ideas to the mix. I was asking her so I could find other sources of info.
I do think in some ways, Naked Capitalism is best because it has real diversity of articles and commenters there. And USGinc. isn’t getting away with anything.
@elaine:
You gave these sites as proof of your independent thinking:
“Democracy Now!, Rolling Stone (Matt Taibbi and other political writers), Charlie Pierce, ProPublica, ThinkProgress, TPM, Diane Ravitch, The Guardian, Huffington Post, Common Dreams, David Sirota, The First Amendment Center–and others.”
Don’t you see the similarity between those sources? Where’s National Review, Ann Coulter, Legal Insurrection in your list. Even Free Republic, where among all the crazy crap, you also get stories you seldom see elsewhere. I go there daily, even though I was zotted for kicking the stupid Birthers around.
Plus, Jill is right about Naked Capitalism. Probably one of the best sites on the web, and great links to other stories.
Squeeky Fromm
Girl Reporter
From: Toobin’s article “Edward Snowden Is No Hero” that appeared in the New Yorker:
“What, one wonders, did Snowden think the N.S.A. did? Any marginally attentive citizen, much less N.S.A. employee or contractor, knows that the entire mission of the agency is to intercept electronic communications. Perhaps he thought that the N.S.A. operated only outside the United States; in that case, he hadn’t been paying very close attention. In any event, Snowden decided that he does not “want to live in a society” that intercepts private communications. His latter-day conversion is dubious.”
The point of this passage is not just to impugn Snowden but also to convince us how normal it is for NSA to spy on communications in the US. Nothing could be further from the truth.
If you actually read this passage in the New Yorker article you will see that the passage links to NYT article of 12/21/2005 by Risen and Lichtblaugh “Spying Program Snared US Calls”.
Toobin leaves the impression that this article confirms that spying inside the US is completely ordinary and therefore Snowden must be disingenuous or ‘hadn’t been paying very close attention’ when he objects to NSA spying on US citizens.
If you check the Risin and Lictblaugh article you will find that the entire point of the article is to report that despite the requirement of the law that one end of the communication originate outside the US, a very small number of US communications were accidentally intercepted due to technical difficulties. The article cited by Toobin actually supports Snowden’s view that NSA spying in the US is historically unusual and illegal.
Toobin tries to convince us that NSA spying in the US is no big deal and widely understood. On the contrary, widespread spying by NSA on US citizens is exactly what the administration tried to conceal. The administration tried to conceal wholesale spying on citizens in the US precisely because it is such a great departure from historical limitations of US intelligence services and also shreds widely acknowledged limitations on government power.
From Groklaw:
http://www.groklaw.net/article.php?story=20130818120421175
Anyway, one resource was excerpts from a book by Janna Malamud Smith,”Private Matters: In Defense of the Personal Life”, and I encourage you to read it. I encourage the President and the NSA to read it too. I know. They aren’t listening to me. Not that way, anyhow. But it’s important, because the point of the book is that privacy is vital to being human, which is why one of the worst punishments there is is total surveillance:
Blockquote the following:
“One way of beginning to understand privacy is by looking at what happens to people in extreme situations where it is absent. Recalling his time in Auschwitz, Primo Levi observed that “solitude in a Camp is more precious and rare than bread.” Solitude is one state of privacy, and even amidst the overwhelming death, starvation, and horror of the camps, Levi knew he missed it…. Levi spent much of his life finding words for his camp experience. How, he wonders aloud in Survival in Auschwitz, do you describe “the demolition of a man,” an offense for which “our language lacks words.”…
One function of privacy is to provide a safe space away from terror or other assaultive experiences. When you remove a person’s ability to sequester herself, or intimate information about herself, you make her extremely vulnerable….
The totalitarian state watches everyone, but keeps its own plans secret. Privacy is seen as dangerous because it enhances resistance. Constantly spying and then confronting people with what are often petty transgressions is a way of maintaining social control and unnerving and disempowering opposition….
And even when one shakes real pursuers, it is often hard to rid oneself of the feeling of being watched — which is why surveillance is an extremely powerful way to control people. The mind’s tendency to still feel observed when alone… can be inhibiting. … Feeling watched, but not knowing for sure, nor knowing if, when, or how the hostile surveyor may strike, people often become fearful, constricted, and distracted.”
Jill,
I should have said Jeremy Scahill and Jane Mayer. I have read Scahill’s book on Blackwater, Mayer’s book “The Dark Side,” and all of Taibbi’s books–including “Griftopia.”
Myriad sites–including Democracy Now!, Rolling Stone (Matt Taibbi and other political writers), Charlie Pierce, ProPublica, ThinkProgress, TPM, Diane Ravitch, The Guardian, Huffington Post, Common Dreams, David Sirota, The First Amendment Center–and others.
I subscribe to both The Boston Globe and The Nation.
*****
What NSA Transparency Looks Like
by Justin Elliott
ProPublica, Aug. 20, 2013
http://www.propublica.org/article/what-nsa-transparency-looks-like
Anon Posted,
Thanks for the link. It’s scary what the govt. will do to people. David Miranda has drag because of Glenn and the Guardian and even he was detained the full 9 hours. The mind-fu–ing Appelbaum describes is typical of this govt. Bruce Ivins was likely innocent. Aaron Swartz, Bradley Manning. We have no idea what John Walker Lindh did because he was tortured and put away. Jose Padilla is a walking vegetable after his torture. Grabbing Miranda and threatening him must have been terrifying. Then there’s the people in OWS, other activists, and law abiding people known as Muslims, who don’t have any drag. People in these groups have been dragged off and put in jail, some have been tortured. So I’m glad people with drag are willing to take risks and speak up.
And you thought this was change you could count on! Change indeed, but not for the better. I voted for him the first time, but realized shortly thereafter that was not a real choice. So the second time I went completely Green. I know a third party would never be allowed to become viable, but it was either that, or not voting at all!
Fundamentally, I know the system is fixed or rigged, corrupted, and amounts to a criminal enterprise. I wonder how long they will be able to keep up this facade. When the tax base is destroyed (due to destruction of the middle class, and unemployment) who will take up the slack for this flawed system? It will have to come from the corporations they now represent. In other words, the corporations will become the government, when the mask comes off.
Privatization of the government and the military is not so farfetched, when you consider the fact that our schools and prisons are also becoming more privatized. Besides, it will get rid of that nasty headache called “elections” and having incumbents run every 4 years. Once the government admits that it is a corrupt and criminal corporation that is hell bent on exploitation of the people and resources, there will be no need for the dog-and-pony show any longer. No need for debate, no need for explanations, no need to justify anything! They will simply do it, and if there is any sass from the public, they will simply declare martial law!
The smoke and mirrors will cease, and the public will realize that they no longer have a democratic republic, a Constitution, or a Bill of Rights. If it walks like a duck, quacks like a duck, and looks like a duck, chances are it is a duck, and no one in their right mind can consider what is being done in our name by the government even closely resembles a representative democracy.
Elaine, I’ve adopted the same practice as you. As many sites as possible and I deliberately do go to very different points of view, so that means, I will definitely check out infowars.
Scahill, Glenn and JT are very good. The Guardian, Der Spiegel, occasionally al jazeera, Juan Cole (I believe he works for the CIA but I still read him). Sometimes Common Dreams. Naked Capitalism is really good for diversity of opinion and really knowledgeable writers/commenters. War is a Crime and the Bradley Manning support Network. The techie blogs can be helpful.
Where do you find useful?