Quotulatiousness

July 12, 2011

Another end-run around privacy expectations

Filed under: Law, Liberty, Technology, USA — Tags: , , — Nicholas @ 13:44

Julian Sanchez thinks the government has stopped caring whether you are innocent or guilty online:

Thanks to an unwise Supreme Court decision dating from the 70s, information about your private activites loses its Fourth Amendment protection when its held by a “third party” corporation, like a phone company or Internet provider. As many legal scholars have noted, however, this allows constitutional privacy safeguards to be circumvented via a clever two-step process. Step one: The government forces private businesses (ideally the kind a citizen in the modern world can’t easily avoid dealing with) to collect and store certain kinds of information about everyone — anyone might turn out to be a criminal, after all. No Fourth Amendment issue there, because it’s not the government gathering it! Step two: The government gets a subpoena or court order to obtain that information, quite possibly without your knowledge. No Fourth Amendment problem here either, according to the Supreme Court, because now they’re just getting a corporation’s business records, not your private records. It makes no difference that they’re only keeping those records because the government said they had to.

Current law already allows law enforcement to require retention of data about specific suspects — including e-mails and other information as well as IP addresses — to ensure that evidence isn’t erased while they build up enough evidence for a court order. But why spearfish when you can lower a dragnet? Blanket data requirements ensure easy access to a year-and-a-half snapshot of the online activities of millions of Americans — every one a potential criminal.

Settling the Caledonia issue . . . in time for the provincial election

Filed under: Cancon, Government, Liberty, Politics — Tags: , , , — Nicholas @ 13:12

Christie Blatchford finds the timing of the settlement to be “arguably suspicious”:

The last page of the Caledonia class action settlement is the one that tells the shameful truth of what happened five years ago in that lovely small southwestern Ontario town.

The settlement was the result of a lawsuit against the government and the Ontario Provincial Police filed by 440 residents, 400 businesses and a handful of sub-contractors affected by the native occupation there five years ago.

The deal has been repeatedly portrayed purely as a “compensation” package since it was formally announced by the Ontario government last Friday.

The government’s brief press release used carefully neutral language: The settlement is called an “agreement” which “provides compensation” for those who suffered “direct losses” during the course of “the protest.”

It is, in a word, bunk.

July 11, 2011

Can the government force you to provide your password?

Filed under: Government, Law, Liberty, Technology, USA — Tags: , , , , — Nicholas @ 09:37

Declan McCullagh discusses a potentially precedent-setting case in Colorado that may determine whether the 5th amendment applies to your personal passwords:

The Colorado prosecution of a woman accused of a mortgage scam will test whether the government can punish you for refusing to disclose your encryption passphrase.

The Obama administration has asked a federal judge to order the defendant, Ramona Fricosu, to decrypt an encrypted laptop that police found in her bedroom during a raid of her home.

Because Fricosu has opposed the proposal, this could turn into a precedent-setting case. No U.S. appeals court appears to have ruled on whether such an order would be legal or not under the U.S. Constitution’s Fifth Amendment, which broadly protects Americans’ right to remain silent.

I’d hope that the protections against self-incrimination would apply in this case, but government power has been expended so far in the last ten years that it would not surprise me if the courts gut this right in their deference to the executive (just like every other time, it seems).

July 8, 2011

Oh, it’s not really “censorship”, say Apple fans

Filed under: Law, Liberty, Media, Technology — Tags: , , , — Nicholas @ 14:01

Even if Apple is silently censoring their MobileMe email messages:

Writing on the Cult of Mac, John Brownlee reports that Apple applies silent, unpublished content-filters to outgoing MobileMe Email messages, sometimes deleting the messages you send without notifying you. This doesn’t appear to be in Apple’s published terms of using the service, and while an Apple spokesperson has confirmed that this goes on, she disclaims that it is political in nature. The comments on Brownlee’s post are a study in cognitive dissonance from Apple fans, with responses ranging from, “I don’t send politically charged messages so it doesn’t matter,” to “It didn’t happen when I tried it, so it’s not true,” to “All spam filters work this way” (they don’t), and so on.

It’ll be hard to find a way to make this sound nice to folks who aren’t already fully paid-up members of the Apple Fanboy Club.

The Canadian right to free speech: not invented in 1982

Filed under: Cancon, History, Law, Liberty — Tags: , , , — Nicholas @ 10:03

Mark Steyn responds to former blogger Jason Cherniak about the free speech rights of Canadians:

You claim that the legal right to free speech “did not exist as a legal right before 1982”. This is bollocks de facto and de jure. When you say with all the blithe insouciance of a Dalhousie Law School alumnus that any right to free speech was “only respected by convention”, my response is what do you think the entire Canadian legal inheritance is, genius? It’s “convention”. That’s what the definition of Common Law is: a body of precedent, understandings of inherent authority — ie, “convention”. When Julian Porter, QC filed a motion objecting to the Canadian “Human Rights” Tribunal’s “secret trial”, he cited CBC vs New Brunswick, Ambard vs Attorney-General of Trinidad and Tobago – in other words, the accumulation of precedent, or, in your words, a respect for convention.

England, the mother of Common Law, has no written consititution, and thus no “constitutional rights” at all, but only “conventions”. Those “conventions” were the underpinning of the 1867 British North America Act and, more broadly, the third of a millennium of Canadian legal history before the Charter of Worthless Crap. As Blackstone put it, for lands “planted by English subjects”, “all the English laws then in being, which are the birthright of every subject, are immediately there in force”. In other words, long before 1982, free speech was a Canadian’s “birthright” — through convention. It’s all convention. In the English legal tradition, take away convention, and what’s left?

That’s why more countries have lived in liberty longer under Common Law than any other legal inheritance. Because what you dismiss as mere “convention” is, in fact, an understanding that “law” and laws are not the same thing. It’s not about the government writing down on a piece of paper everything that it will permit you, Jason the Barrister, to do. “Rights” are not those things granted by the sovereign and enumerated in statute, but the precise opposite: They’re restraints upon the sovereign. They’re not about what the state allows you to do, but about what the state is not allowed to do to you. The English legal tradition is imperfect (as all systems are) but it has been a better protector of this principle than any other. What part of that don’t you understand?

All of it, apparently. Because along comes that puffed up poseur Trudeau with all his modish contempt for the Canadian inheritance and he decides that, like you, he’s not big on convention and precedent and he’d rather have everything written down, all nice and “codified”. So now we have your 1982 Charter that, for the first time since Magna Carta, gives citizens what you call a “legal right” to free speech. And whaddaya know? Ever since we got a Trudeaupian “legal right” to it, there’s been less and less free speech than back in the bad old days when (according to you) we had no “legal right” to it at all. Ask yourself this, “Barrister and Solicitor”: Had Guy Earle delivered his lesbophobic putdowns at a Canadian comedy club in 1981, would he have had more or less “legal right” to free speech than he enjoys today?

I said in my post that, for you and yours, Trudeau is Year Zero. Your response confirms it. That a Canadian lawyer is willing to argue that a long, established, settled legal inheritance means nothing unless Father Pierre writes it down in his Napeoleonic Complex Code is bleak confirmation of how thoroughly he vacuumed Canada’s past — and, in doing so, perverted the very idea of what “rights” are. If yours is a typical Canadian lawyer’s view of the law, it certainly explains a lot. God help us all.

A contrarian view on the News of the World closure

Filed under: Britain, Liberty, Media — Tags: , , , — Nicholas @ 09:28

Well, somebody had to point out the cloud to this lovely silver lining that everyone else is enjoying:

Around the world, miles of column inches and hours of television and radio debate have been devoted to the closure of the News of the World. And yet the gravity of what occurred yesterday, the unprecedented, head-turningly historic nature of it, has not been grasped anywhere. A newspaper of some 168 years’ standing, a public institution patronised by millions of people, has been wiped from history — not as a result of some jackbooted military intrusion or intolerant executive decree or coup d’état, but under pressure from so-called liberal campaigners who ultimately felt disgust for the newspaper’s ‘culture’. History should record yesterday as a dark day for press freedom.

In a civilised society we tend to associate the loss of a newspaper, the pressured shutting down of a media outlet, with some major corrosion of public or democratic values. We look upon the extinction of a paper for non-commercial reasons, whatever the paper’s reputation or sins, as a sad thing, normally the consequence of a tyrannical force stamping its boot and its authority over the upstarts of the media. Yet yesterday’s loss of a newspaper has given rise, at best, to speculative analysis of what is going on inside News International, or at worst to expressions of schadenfreude and glee that the four million dimwits who liked reading phone-hacked stories about Wayne Rooney on a Sunday morning will no longer be at liberty to do so. Many of those politically sensitive commentators who shake their heads in solemn fury upon hearing that a newspaper in a place like Belarus has closed down have barely been able to contain their excitement about the self-immolation of a tabloid here at home.

Many people, including us at spiked, had reservations about the News of the World’s mode of behaviour, especially following this week’s revelations of deplorable phone-hacking activity involving murdered teenager Milly Dowler and the families of dead British soldiers. The paper undoubtedly infuriated many people, too. Yet this was a longstanding public institution. Just because a newspaper is the private property of an individual — even if that individual is Rupert Murdoch — does not detract from the fact that it is also a public institution, with an historic reputation and an ongoing political and social engagement with a regular, in this case numerically formidable readership. That such a public institution can be dispensed with so swiftly, that a huge swathe of the British people can overnight be deprived of an institution they had a close relationship with, ought to be causing way more discomfort and concern than it is. How would we feel if other public institutions — the BBC, perhaps, or parliament — were likewise to disappear?

Shifting in the general direction of legalizing marijuana?

Filed under: Health, Law, Liberty — Tags: , , — Nicholas @ 00:30

Ace is still not eager to see pot legalized, but he’s had a bit of a change of heart lately:

The liberty argument is a strong one.

The counter-argument, and the one I have previously relied upon/acceded to, was that the state has such a powerful interest in protecting people from harming themselves that our Duty to Protect outweighs the case for liberty.

But I don’t believe that any more. For one thing, I am becoming, little by little, and belatedly, very suspicious of any argument that assigns liberty a lower priority than another value. And I’m becoming, again belatedly, very very suspicious of the general claim that we can use the Coercive Power of the State to make people live better lives.

It’s not so much a slippery slope argument — of the type “If we say the state can do X to supposedly improve our lives, who’s to say they can’t do Y, as well, making the same claim?” — as it is an argument about that first step itself.

I don’t think I want the state using its coercive power to lock people up any more for doing drugs.

What business is it of mine? I do lots of things that others may look down upon but I wouldn’t be at all happy about having State Coercion brought to bear upon me for any of it.

So, cut through all the stuff about medicinal marijuana and the like… it’s really just about respecting a citizens’ basic right to do as he pleases without state coercion, so long as what he pleases does not produce direct harm for anyone else.

And I just don’t buy the case for “direct harm” anymore.

July 7, 2011

QotD: The United Nations has a master plan

Filed under: Economics, Environment, Government, Liberty, Quotations — Tags: , , , — Nicholas @ 13:13

What’s amazing about this stuff — and believe me, there’s plenty more where this came from — is the unblushing shamelessness with which it advocates this economic insanity. Here is the world’s most powerful intergovernmental institution essentially arguing for the destruction of the global economy, enforced rationing, Marxist wealth redistribution, greater regulation, the erosion of property rights and global governance by a new world order of technocrats and bureacrats. And being so upfront about it they actually issue press releases, telling us what they’re planning to do and encouraging us to write about it.

[. . .]

As economies grow richer, so they have more money to set aside for cleaner rivers, fresher air, as well as to invest in R & D projects for ever more eco-friendly forms of energy. It’s no coincidence that quite the worst environmental damage in the last century was done in those countries behind the Iron Curtain. Free market economies tend naturally to be cleaner and healthier because clean and healthy is what people choose anyway if they can afford it. They don’t need government to step in and take their money in order to spend it inefficiently trying to achieve something which would have happened quite naturally anyway.

What this ludicrous UN report is advocating is the exact opposite of what the world needs if it is to become genuinely greener. All those people in the developing world, if they’re to live healthier, less environmentally damaging lives the very last thing they need is hand-outs from richer economies. What they need is property rights and free trade and the chance to grow their economy to the point where — cf the Kuznets Curve — they can afford the luxury of having to breed fewer children and to heat and light their homes without having to chop down the nearest trees. What they also need for us in the rich West to have thriving economies in order that we can import more of their produce.

Rationing and limits to growth are not the answer. The UN is a menace and we listen to its eco-fascist ravings at our peril.

James Delingpole, “UN reveals its master plan for destruction of global economy”, The Telegraph, 2011-07-07

Cartoon history of the global warming panic

Filed under: Economics, Environment, Government, Liberty, Media — Tags: , , , , — Nicholas @ 12:56

British tabloids

Filed under: Britain, Liberty, Media, Politics — Tags: , , , , — Nicholas @ 09:19

Brendan O’Neill views with some puzzlement the degree of outrage at the News of the World phone-hacking compared to earlier tabloid excesses:

Even some of those involved in the campaign recognise that there is a disparity between their earlier reaction to breaches of morality by tabloid newspapers and their reaction to this one. The campaigner who has successfully managed to get some big corporations to withdraw their advertising from the News of the World says she had previously learned to live with a ‘generalised, low-level irritation with the content of some of the tabloids’, yet following the Milly Dowler revelations those ‘years of irritation were transformed into rage’. Others have referred to the Dowler claims as ‘a tipping point’, arguing that we knew Murdoch’s tabloids were value-free and ethics-lite, but we didn’t know ‘they were this bad’.

In truth, there has been a distinct lack of journalistic integrity amongst some of the tabloids (and other media outlets) for many years now. For example, in 1988 the News of the World hounded the mentally ill EastEnders actor David Scarboro, not only revealing that he was in a psychiatric institution but also publishing photos of the institution and describing Scarboro as ‘mad’. Forced, under the glare of tabloid publicity, to flee the institution, Scarboro committed suicide by leaping off Beachy Head. He was just 20 years old. More famously, or rather infamously, the Sun libelled Liverpool football supporters following the Hillsborough disaster in 1989, falsely claiming that they had pickpocketed and urinated on dead and dying fans. There are many other instances over the past 30 years where the tabloids have used harassment and intimidation to get stories that have sometimes ruined people’s lives or denigrated the dead.

Yet none of those episodes gave rise to a widespread anti-tabloid campaign that galvanised prime ministers, opposition leaders, the respectable media, political activists and lawyers, as the Milly Dowler revelations have. Nor did they result in three-hour emergency debates in the House of Commons, with politicians battling it out to see who could express the most vociferous disdain for tabloid culture. The most striking thing about the anti-Murdoch campaign that has been so speedily consolidated over the past 48 hours is that it includes a smorgasbord of people who are normally at each other’s throats — from Conservative MPs to left-wing agitators, from big businesses such as William Hill and Coca-Cola (which are withdrawing their adverts from the News of the World) to religious spokespeople.

July 6, 2011

Having it all? Not without sacrifices

Filed under: Economics, Law, Liberty — Tags: , , , — Nicholas @ 12:29

Scott Greenfield wastes little sympathy with the plaintifss in this case:

How grand would life be if you could enjoy the perks, the glory, the importance and power of being a big shot executive with a major multinational, but got to stay home and play with the kids rather than work? I know, me too. So too the six women suing Bayer for sex discrimination.

While there are plenty of other causes of action that suggest they have some very real gripes. This [. . .] is not their strongest point:

The few women who have advanced beyond the director level and into the highest echelon of management have achieved this rank by sacrificing their personal lives and abandoning work-life balance. Female Vice President of Global Health Economics and Outcomes Research Kathleen Gondek is unmarried with no children, female Senior Director Susan Herster has no children and female Vice Presidents Shannon Campbell and Leslie North have others who serve as primary care-givers to their children.

Can you imagine the sadness at the loss of work-life balance by these women in the “highest echelon of management?” How sad. How wrong. They shouldn’t be there are all if they haven’t figured out that anyone elevated to that position is required to sacrifice their personal lives to perform the heavy burdens that come with the heavy paycheck.

Not worth it for you? That’s cool. Don’t do it. And don’t get the title, or the car, or the paycheck. But you can’t have it all. No man can. No woman can. No one can. And don’t whine about the choice you made, to go for the career at the price of a family life.

June 29, 2011

Canada’s constitution has the “notwithstanding” clause . . .

Filed under: Government, Law, Liberty, USA — Tags: , , — Nicholas @ 16:42

. . . but that’s just a loophole compared to the utter legal devastation contained in the American constitution’s Commerce Clause:

Obama and, it seems, many courts, would like to pretend that while the Constitution generally speaks of enumerated and limited powers — all other powers, such a the police power, reserved for the people and the states — that the Commerce Clause generally is a “Take-Back” clause that essentially calls bullshit on everything else in the Constitution.

That is, everything else in the Constitution is about establishing particular powers of the federal government, and, expressly, reserving those not named (or “necessary and proper” to undertake a named power) to the states.

But this new claim is that really there is only one clause that matters in the Constitution, and that is the Commerce Clause, and this one brief clause renders all 4400 other words in the Constitution null and void, because the Commerce Clause says, it is contended, that the federal government may do anything so long as, in the aggregate, it “affects interstate commerce,” which, as is often pointed out, applies to everything.

Having sex with your wife? This affects interstate commerce, as you might wind up creating the ultimate economic effect — a child; a future one-man army of economic activity, labor, investment, and consumption — and even if you don’t, your choice to have sex is a choice not to sample the fruits of interstate commerce, which is affected, then, by your choice to not enter the stream of paid entertainments.

The US federal government clearly does believe that the Commerce Clause is the trump card in the deck. You play that and it doesn’t matter what the other cards may be: you win.

If the framers of the Constitution meant for this one clause to have such omnipotent power, trumping everything else, establishing well-nigh plenary power of the federal government over every aspect of human existence —

Why did no one seem to think it necessary to add even the most gentle limitation on such a far-reaching power?

In other words, if this Clause means what it is, apparently straight-faced, contended to mean, and therefore is the only real clause in the Constitution at all — why did no one think to elaborate upon it?

Why all that wasted time on Amendments and specific powers of Congress, the President, and the Courts, when the only real grant of power in the Constitution is the Commerce Clause?

From the comments, where it’s been pointed out that if this decision is upheld, the government can mandate how many children you have to have:

Bob Saget: If you cannot afford a wife for bearing the Federally mandated minimum number of children, one will be appointed for you.

June 28, 2011

Government attempts to censor and control the internet spawn opposition

Filed under: Government, Liberty, Media, Technology — Tags: , , , , , , — Nicholas @ 12:06

Loz Kaye makes the point that the recent ratcheting-up of freelance subversion of government and corporate web sites and online communities is a direct reaction to attempts to control the internet:

LulzSec wasn’t an isolated or unique phenomenon. People with passionate beliefs have been using new technological tools to effect change out of a sense of powerlessness. In the last year, I’ve watched 38 Degrees using the strength of association online to change government policy, WikiLeaks force transparency on those who’d rather run from it, even the amorphous mass that is Anonymous taking a stand on whatever issue they feel deserves their attention.

These tools are now themselves under attack. Lord Mandelson’s last gift to us, the Digital Economy Act, is just one of a raft of “three strikes laws” worldwide that threaten to cut off households from the web. Buried in the coalition’s Prevent strategy is the assertion that “internet filtering across the public estate is essential”. Nor is it solely a British issue; Nicolas Sarkozy called for global online governance at the eG8 in his attempt to civilise the “wild west” of the web.

We’re starting to see what this civilising process entails. Open Rights Group revealed that Ed Vaizey and lobbyists held a secret meeting discussing the future of web blocking powers. There was no public oversight and no one asked the net natives. Vaizey has relented a little via Twitter, consenting to open up the discussion — the Pirate Party and I welcome that invitation. It will take more, however, than getting a few NGOs around a table to ease the real sense of anger poisoning the online community.

We’re quickly coming up on a time when we’ll need to enshrine access to the internet (or equivalent data sources) as a formal constitutional right. If we don’t, we will always have this urge to control and to censor on the part of petty authoritarians and bureaucrats.

June 27, 2011

“A substantial expansion of the FBI’s power to monitor innocent Americans”

Filed under: Government, Law, Liberty, USA — Tags: , , — Nicholas @ 12:06

Julian Sanchez on the changes to the FBI’s domestic rulebook:

The change in the rules will remove a crucial deterrent for any of the 14,000 FBI employees who might be tempted to use their government access to all kinds of databases for improper personal ends, or to flout rules prohibiting religious, racial and political profiling. This is no hypothetical concern: Shortly after the new guidelines were announced, a former CIA official alleged that the Bush administration had asked the spy agency to dig up dirt on academic and blogger Juan Cole, whose fierce criticism of the war in Iraq earned the ire of the White House.

The new manual will also give agents who have opened assessments greater authority to employ physical surveillance teams. If the FBI thinks you might make a useful informant, agents will be free to dig through your garbage in hopes of finding embarrassing trash that might encourage you to cooperate. And they will be able to do this without first having to show any evidence that you are engaged in wrongdoing.

The FBI, predictably, is downplaying the changes in its rulebook, characterizing them as “clarifications” and “tweaks.” But all these tweaks add up to a substantial expansion of the FBI’s power to monitor innocent Americans — power Congress wisely curtailed in the 1970s in light of the bureau’s ugly history of spying on political dissidents. The law set broad limits on the most intrusive investigative techniques, such as wiretaps, but the details of who could be investigated and how were largely left to executive branch regulation. As statutory restraints on surveillance have been peeled back over the last decade, Americans have been asked to rely more than ever on those internal rules to check abuses.

A review of The Declaration of Independents

Filed under: Books, Economics, Liberty, Media, Politics — Tags: , , , — Nicholas @ 08:33

Timothy P. Carney talks about the new book by Nick Gillespie and Matt Welch:

Libertarians today are mostly considered a variety of conservative — Ronald Reagan with fewer bombs and more pot. But Welch and Gillespie don’t cast libertarianism as one of many political ideolgies. Instead, they portray it as a truce. It’s unpolitics. The authors see evidence of a “libertarian moment,” not so much in public opinion on policy matters (though outrage about bailouts helps), but in cultural trends that spill over into politics.

Younger Americans don’t like being told what to think. Gone is the voice-of-God Walter Cronkite figure. Younger adults assemble their own news feeds a la carte, following trusted voices on Twitter and RSS feeds. Even walking through a shopping mall, the authors argue, shows how we’re much more individualistic as a culture than we used to be. The authors say there’s a proliferation of cliques and types in high schools and among adults, too. The Internet has helped people find kindred spirits both near and far, making it less necessary to modify your interests to match an existing group. Americans, increasingly, choose their own way.

And there, in a nutshell, is the traditionalist’s core argument against the internet (grounded in their remembered high school experience): it allows geeks and nerds and other unpopular kids to find solace, support and fellow feeling outside their immediate physical surroundings. That undermines the traditional rule of the jocks and the beautiful people.

Welch and Gillespie see our cultural trends as evidence that “decentralization and democratization” are taking territory from “the forces of control and centralization.” The political corollary, naturally, would be a movement that creates more space for individuality. It would be almost an anti-political movement.

But this is where every dream of an independent or libertarian uprising crashes into reality. You don’t win at politics without being good at politics. The people who are best at politics are the people who stand to gain a lot from it — special interests and people who get like to play the political game. Neither group is likely to include many anti-political decentralizers.

What about the libertarians who are already caught up in politics? The think-tankers, the activists, the journalists? Well, they’re another obstacle to a libertarian revolution. For one thing, this is a group famous for infighting. The Libertarian Party has been racked with strife, splits and feuds for its entire existence. Welch and Gillespie want to pitch a big tent, but Beltway libertarians are famous for imposing “purity tests.” (Q: Should vending machines marketing heroin to children be allowed on public sidewalks? A: There shouldn’t be public sidewalks.)

That last quip is quite true: the very first time I walked in to a libertarian gathering, I was besieged with purity testing of that sort. I nearly walked right back out without a backward glance.

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