Personal rights and liberties: Have we reached a tipping point?

Bill of Rights, being chipped away?As many of you know, I live in Maryland.  Around here, we’re well-familiar with the process by which Chesapeake Bay blue crabs are turned into the delicacy for which our state is so famous.

It’s simple:  We place the live crabs in a pot of water and slowly turn up the heat.  This “slow cooking” does the trick every time … and the hapless crabs are none the wiser.

I wonder if something similar is happening to us right now when it comes to our rights and liberties?

Consider these recent news developments:

And let’s not forget this other news shocker:  “The Supreme Court upholds Maryland legislation allowing law enforcement officials to collect DNA from any person detained or arrested – even before they’re charged with anything.”

Sometimes it’s easier to see what’s happening from the vantage of distance.  My brother, Nelson Nones, writes me the following from outside the United States:

It’s time for Americans of all political stripes to stand up and put a stop to this. 

Conservatives should be alarmed over the plainly obvious violations of our Constitution, the supreme law of our land:

  • Amendment 1:  “Congress shall make no law … abridging the freedom of speech …”
  • Amendment 4:  “The right of the people to be secure in their … papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the … things to be seized.”

Non-conservatives should be just as alarmed.  In fact, every citizen should be alarmed.

Anyone who thinks Chinese censorship and the Great Chinese Firewall are bad things, but supports what our government is doing as described in recent news on account of “security,” is a complete hypocrite.

Resorting to legalistic “workarounds” is no less hypocritical.  For example, some might claim that governments have unfettered legal power to engage in surveillance of electronic data because it doesn’t violate the “right of people to be secure in their … papers.”  However, any such interpretation is plainly contrary to the framers’ intent:  Intellectual property existed only on paper in 1791, when the Bill of Rights came into effect!

Others might maintain that warrantless government surveillance, backed up by gag orders to keep the surveillance secret, is “reasonable” in national security situations involving either domestic subversion or foreign intelligence operations.

This was the argument the Executive Branch put forward to the Supreme Court in Katz v. United States (1967).  But the Supreme Court unanimously overruled the Executive Branch by holding that, at least in cases of domestic subversive investigations, compliance with the warrant provisions of the Fourth Amendment was required.  

Justice Lewis Powell, writing for the Court, said that whether or not a search was reasonable was a question which derived much of its answer from the warrant clause; except in a few narrowly circumscribed classes of situations, only those searches conducted pursuant to warrants were reasonable (refer to Warrantless “National Security” Electronic Surveillance,

In other words, the government attempted to legitimatize warrantless electronic surveillance through the courts, but lost. Case closed.

To Nelson’s comments, I would add that the Supreme Court’s upholding of Maryland’s sweeping DNA law (on a 5-4 decision), means that your and my DNA can be collected and kept on file with the government for the rest of our lives — and who knows what they could do with that information.  Dissenting Justice Antonin Scalia’s arguments in this case are strong, persuasive – and withering.

The question now before us is … what are we going to do about it?  My brother proposes civil disobedience, if necessary, to wipe away these blemishes – even going so far as leaking the contents of National Security Letters.

Would anyone care to offer alternative ideas – ones that work more within the system?  Your thoughts and comments are welcomed – and you can keep them anonymous if you wish!

7 thoughts on “Personal rights and liberties: Have we reached a tipping point?

  1. I could not agree with you more. I have had a heightened concern for privacy since the 1990s when the push for medical data collection in government databases began to accelerate. This year, Maryland agreed to turn over patient-specific records collected by a Maryland cost control board to the federal system.

    All this data collection is very unhealthy and alarming for our citizens — whether it is medical, financial, ideological or regarding Second Amendment rights.

    With nothing being private or sacred, and you get in the way of the powerful, they have an arsenal of your personal information to use for extortion, intimidation or confiscation.

    My greatest fear for my fellow citizens is the trust of the ruling class that they have put in power. They have a blind faith that those who wear their party label have “pure” motivations for everything that they do. Even when it is proven that money is wasted, information is leaked and mishandled. and even lives are lost due to politics or incompetence, that trust persists.

    The politicians have been so successful in dividing us that we are complacent, silently satisfied that this is only happening to “the other guy” — for now.

  2. I cannot resist adding more commentary.

    Not only have I lived overseas many years, I have worked in the information systems field most of my 37-year career. In the systems world, “metadata” means “data about data.”

    The “telephony metadata” of interest to the government would be more aptly described as “descriptive metadata” (a.k.a. “metacontent,” or “data about data content”). The descriptive metadata about a phone conversation that seems to interest the U.S. government includes:

    1. Origin telephone number (16125551212)
    2. Destination telephone number (0116625551212)
    3. Telephone calling card number (1234123412341234)
    4. Date and time of call placement (2013-05-31 20:00:00)
    5. Duration of call (00:01:25)
    6. Local time zone where the call originated (America/Chicago)
    7. Phone conversation synopsis (my flight reservation enquiry to an airline call centre concerning an air flight from Los Angeles to Bangkok on June 12th, 2011 as a completely hypothetical example)

    The government isn’t going after Item 7 (I do not believe this is obtainable without wiretapping specific calls) … but it is going after all the others.

    Of them, items 1, 2, 3, 4 and 6 are personally identifiable information (PII) within the general meaning of the term, and also specifically within the meaning of European Union directives and various national data protection laws in countries like Australia, Japan and the U.K. (The U.S. doesn’t have any such laws at the national level, but states like California, Nevada and Massachusetts do.) That’s because it’s possible to use this information to contact or locate a specific person either on the basis of an individual piece of information, or in the context of multiple pieces of information.

    The U.S. government’s position appears to rest on the concept that metadata isn’t private or personal; it’s just as public as what you’d see on the envelope of a letter.

    Such arguments might be plausible in the context of revealing your state-issued license plate number on a public highway, or sending a letter through the U.S. Postal Service (a government organization).

    But they are not plausible in the context of a private communication network and/or private telephone subscription utilized under the terms of a private contract between one or two individuals (or corporations) and their respective private telephone service providers which does not involve the use of public property or infrastructure –- and for which no crime is alleged or suspected.

    The argument for upholding Maryland’s DNA Collection Act may merely pretend “to identify the criminal in question” whilst serving a broader and more onerous purpose, but at least the act of obtaining a detainee’s DNA without a warrant can occur only when the detainee is in (presumably lawful) police custody.

    No such excuse exists for seeking or collecting “telephony metadata” from purely private transactions and then requiring people in-the-know to keep this act top-secret.

    Blandishments like “it’s just metadata” open the door to massive government intrusion on an unprecedented scale.

    The government is not only operating illegally and unconstitutionally, it is operating immorally and is simply wrong on every level. The Guardian, a British newspaper, deserves kudos for having the guts to come forward with the information they leaked (though it has to be acknowledged that they are beyond the reach of U.S. authorities).

    Now it’s up to ordinary citizens to follow through and put a permanent stop to this — even if doing so places them in harm’s way.

    I am proud to be American. But our government’s actions cause me to lose face before my foreign hosts. Personally, therefore, I am delighted to take this risk on board.

  3. In America, citizens believe it is a foregone conclusion that government can and will do whatever it wants, and that the courts will tell them that they can.

    It makes me wonder what the American Revolution was all about.

    We see country after country welcome an all-powerful, “benevolent” government — and then they end up being run by despots.

  4. Well, the SCOTUS ruled that Maryland’s DNA law is not unconstitutional, not that it should be mandatory.

    It seems to me that we now have a successful Fourth Amendment attack similar to the Fifth Amendment attack of Kelo v. New London, CT. After the Kelo decision, many states immediately passed legislation that prohibited municipal governments from seizing private land for commercial purposes.

    States (and Congress) should be pressured to do the same thing here. Whether those efforts will be successful, I have no idea.

    Frankly, what amazes me, is that anyone thinks a constitution —- or any other document — has any authority whatsoever except that which people give it.

    The U.S. Constitution means what nine unelected justices say it means.

    Actually, it means what FIVE unelected justices say it means.

    When you swear an oath to uphold the Constitution, you have no idea what you’re signing on for. Not really. One day, I suspect a left-leaning High Court will pronounce that the right to bear arms under the Second Amendment applies only to the National Guard. And when they do… it’ll be the law of the land.

    It is an old Protestant notion that authority can reside in a text (the Bible) … how’s that working out for them these days?

    Today, we want to believe that there is some inherent, inviolable authority in our Founding Documents. It just ain’t so.

    Authority always ultimately resides in people. Centuries ago, it was a monarch. Now, in the U.S., it’s five justices. Once again we see that in a democracy such as ours, where “big government” already is firmly entrenched, there really is no reliable constitutional buttress against the inexorable creep of illimitable governmental power.


    While this is somewhere else and about something else … maybe … it is about what people can do and will do in a country where they have not been so apparently safe and – despite sharply increasing poverty figures – quite overfed on high fructose corn syrup and GMO and MSG and whatever else. People in the U.S. are doing too well to be motivated. It doesn’t look good.

    What are a few civil rights, really? Most of them are about other people, anyway. We can put gas in the car and pay our cable TV bill; so what if they know our DNA, so long as we can get our meds!

    This caricature is not to judge people who have been made dull and dumb and docile. (It has nothing to do with IQ, btw. I know people of medium-to-low intellectual capacity who are neither dull nor dumb or docile.) Rearing people on physical and mental junk food will do it, however. It doesn’t look good.

    Most of our diseases are caused by plenty (of the wrong stuff), by convenience, by lack of exercise. And our societal diseases are also caused by “way too much”: Way too much governmental apparatus with no checks and balances except for the 1% buying themselves influence as they have done for a long, long time.

    Who cares about civil liberties? What are civil liberties?

    We forget that we’re talking way up here with a modicum of comprehension about what civil rights are. For many, civil rights are about what they want. It doesn’t look good.

    Worst of all, we’re not living in what is called “Rechtssicherheit”, i.e. under a government which would ensure that laws really matter, that when crossing an intersection at a red light is illegal that I can actually depend on being able to safely cross when it is green. This is not the case when, according to a Supreme Court rule (here ORAP 1.20(5)) “For good cause, the court on its own motion or on motion of any party may waive any rule.” It doesn’t look good.

    Courts will not rule on law, from the smallest town to the highest court, they do not know the law, nor care.

    If people can come and steal something from me or accuse me of something I did not do … and then go to court and win, what do we expect people to care about civil liberties?

    If government agencies (here BLM) spend millions to disinform the public of their agendas and dealings, who is capable of standing up against them as an unpaid individual? When, as a result, one’s well dries up or a hill comes down on your house, that puts a perspective on civil liberties. Call it all you have wiped away as a consequence of corruption on any level.

    It is happening right here, right now. People who had put their life savings into buying a peaceful rural property may end up in a trailer park. What about their civil liberties? It doesn’t look good.

    When centuries’ and millennia old ways of agriculture are outlawed because a handful of global corporations (Monsanto, Sungenta, etc.) force farmers to buy seeds that will not reproduce, just so they must come back and buy all their seeds, every year? What if, world wide, hundreds of thousands of farmers are driven out of their livelihood? What about their civil liberties? And if you think that is somewhere else, guess again. It doesn’t look good, and there is no “somewhere else” anymore.

    When outfits like the ACLU only take on “sure winners” that they can put on their front page for more grants, who will stand up if not us ourselves?

    And yes, civil disobedience:

    But also in small areas — personal areas — we need to disempower the corrupt administrative apparatus that is depleting our resources and that gives us very little or nothing in return.

    [The above is not fair and balanced, BTW.]

  6. It’s amazing how fast, far and wide this story is spreading …

    What’s even more amazing are these quotes I just picked up:

    Sen. Dianne Feinstein: “I think people want the homeland kept safe to the extent we can. We want to protect these privacy rights. That’s why this is carefully done in federal court with federal judges who sit 24/7 who review these requests.”

    My response: How exactly does gathering all “telephony metadata” covering millions of phone users on a daily basis keep the homeland safe? And how exactly do the federal judges sitting 24/7 in the top-secret federal court, rubber-stamping FBI applications, assure “careful” protection of privacy rights for those millions of people?

    Sen. Lindsey Graham: “Radical Islam is on the rise throughout the region. Homegrown terrorism is one of my biggest concerns. It is happening in our own backyard, and I am glad that NSA is trying to find out what terrorists are up to overseas and inside the country.”

    My response: if you read the court order carefully, you’ll see that the applicant is the FBI, not the NSA, and the order excludes communications “originating and terminating in foreign countries.” The FBI is a domestic law enforcement agency, and the NSA is merely the FBI’s data processing agency. In this case it is duplicitous to say that the “NSA is trying to find out what terrorists are up to overseas …” In actual fact the FBI is secretly trying to find out what boatloads of people (of which no more than a tiny minority are real terrorists) are up to inside the US.

    White House Principal Deputy Press Secretary Josh Earnest: “Information of the sort described in the Guardian article has been a critical tool in protecting the nation from terrorist threats to the United States, as it allows counterterrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, particularly people located inside the United States.”

    My response: if this White House spokesperson is to be believed, then the FBI already knows or suspects who the terrorists are. Why, then, is it necessary to gather all “telephony metadata” covering millions of phone users on a daily basis?

    These people have one thing in common: They are in government. It doesn’t seem to matter if they are political allies or opponents.

    It’s truly amazing to see how “bipartisan” people in government can be when it’s your freedoms they are usurping!

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