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Category Archives: Fourth Amendment
Letter to the Editor: Will Republican Leadership Stand Up to Murphy in Wake of Coronavirus Crisis? – TAPinto.net
Posted: March 26, 2020 at 6:21 am
Editor's note: This letter is addressed to the Republican leadership and urges them to "stand up to the authoritarianism of Governor Murphy" and to assert constitututional rights.
To: Chairman Doug Steinhardt, Esq.; Senate Republican Leader Tom Kean, Jr.; and Assembly Republican Leader Jon Bramnick, Esq.
Dear Republican Leaders:
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We are writing to you as both concerned American citizens and members of the clergy. We are circulating this letter to other citizens and clergy across New Jersey.
A civil rights attorney recently made the point that our founders were intimately familiar with pandemics, viruses and plagues, living at a time before the life-extending science that we benefit from today. Nevertheless, there is not one word in the Constitution about plagues or pandemics to exempt the government from any of our Bill of Rights. The founders of our Republic did not allow for a health crisis or medical emergency as an excuse to suspend our Constitutional liberties.
Our Bill of Rights is under attack by a number of misguided state executives including Governor Phil Murphy who are embracing authoritarian measures under color of law. Our Constitution is being quarantined as if a virus has made it irrelevant. Can a virus do that? Can a panic stoked by the media negate every protection we enjoy as citizens of a Republic? Is this the way democracy dies?
Every citizen should be concerned about how quickly and with gusto this Governor has moved to forcibly strip us of our freedoms. Where is the American Civil Liberties Union? Where are the liberal voices of good conscience in Governor Murphys own party?
As leaders of the opposition party in New Jersey, the Republican Party, we ask that you provide the checks and balances needed at a moment like this. We ask that you aggressively press Governor Murphy and hold him to account for his attack on the Bill of Rights and the Constitution of the United States of America.
Governor Murphy has suspended the First Amendment by issuing lock-down orders and curfews that prohibit obtaining a petition for public protest or public assemblies. He has infringed on the free practice of religion. These are black letter violations of the Law of this Republic.
Governor Murphy has suspended the Second Amendment under the guise of a mandatory shut-down of all nonessential businesses and by barring citizen access to the online means to obtain legal permits. Worse still, he has done so while releasing thousands of convicted criminals from prison, at a time of food shortages, in the midst of a crisis that has stretched law enforcement readiness and increased response times.
Governor Murphy has suspended the Fourth Amendment by asking neighbor to spy upon neighbor and using taxpayer funds to create a system by which reports may be filed and acted upon outside the normal legal process, which has been severely curtailed. Under color of law, the Governor has employed his appointed Attorney General to threaten, coerce, and compel individuals and communities into ceding their protected liberties to the government. He has criminalized heretofore everyday private and peaceful activities, and has done so with the knowledge that every interaction between law enforcement and citizens carries with it the possibility of a fatality. Just ask Eric Garner.
Governor Murphy has suspended the Fifth Amendment the right to property without deprivation by due process of law, and the obligation of government to compensate for such takings. He has issued authoritarian mandates destroying the means of legal commerce, that close businesses without appeal, making workers redundant, and leaving families without the means of survival. Worse, he has done so while continuing to collect taxes on the property and extant funds left to those made unemployed and whose lives will soon be unsustainable.
As religious leaders who both suffer and who minister every day to those suffering, we urge the opposition party to stand up to the authoritarianism of Governor Murphy and to assert our rights under the Constitution of the United States of America and the Bill of Rights. There must be checks and balances in place to the Governors reckless and ruinous abuse of power.
Please hear our prayer.
Pastor Philip Rizzo
Rev. Gregory Quinlan
Posted: at 6:21 am
By Andy Snyder
Originally posted March 25, 2020 on Manward Press
Weve got bad news.
Despite all the ciphering, speculation and soon-to-be-crushed curves this crisis will never end.
Like a scar across the cheek from a blow we never saw coming, the effects of the coronavirus will last forever.
Oh sure, stocks will recover, the economy will come back and, yes, well even gain immunity to the nasty little bug.
But, as always, theres more to the story
A lot more.
We joined in on a conversation with a state senator Monday night. Hes one of the good ones a former Army officer and a staunch defender of freedom. (We fear he wont last long in politics.)
The chat was somber, with hints of optimism.
The topic was one thats on the minds of so many Americans these days the limits and powers of the government.
The message that this senator repeated over and over was quite simple: Let the people decide.
Right now, for instance, in many states throughout the Union, businesses have been forced to close. Jobs have been lost. Retirement plans are crushed.
Divorces will spike. Suffering will rise. And Trump isnt wrong suicides will come.
A 66-year-old woman shot herself in the head just down the road last night.
Its a hell of a thing.
Perhaps the thing thats gone most unnoticed, though, is the new presumption of guilt in the nation.
Were now guilty before proven innocent. Were now deemed to be riddled with the virus before the government tests us and tells us were not.
This is a nasty mindset that strikes at the core of American values.[mw-adbox]
Here in Pennsylvania, all nonessential businesses were told to shut down. The state police are handing out fines.
But, as anybody would guess, the governors definition of nonessential is different from yours and ours and the mans who is running the shop in town.
The state wisely set up a waiver system for the new rules. But businesses are deemed guilty before they prove themselves innocent.
Even if a guy is sure his business is essential, hes got to close it until the government reviews his application and deems him safe to stay in business.
Last we heard, there were 13,000 applicants waiting to hear the fate of their business.
And the bureaucrats are in no hurry.
Again, its a hell of thing.
Do they think were that dumb? our friend in the Senate asked. They cant trust the people to make the right decision?
Meanwhile the police patrol the streets with drones. The National Guard has moved into New York City. And kids throughout the country will miss months of school.
Perhaps scariest of all is the fact that the media is quickly weaponizing the idea that the cure for this virus may be worse than the disease.
It demonizes us for even pondering the question for even wondering whether life is life without Liberty.
Its a tough discussion that must be had with clear heads not with the November election fogging the view.
This is where our old, reliable pal Know-How enters the story.
And its where things get scary
Few folks know exactly how much power the government gave itself after our last big national emergency.
Oh sure, we see an army of bored TSA agents each time we fly (there are 44,000 of them now). We see an occasional officer from the Department of Homeland Security when we drive through the city. And our new drivers license has a shiny sticker on it telling whoever bothers to look at it that our background has been checked and were clean.
But few folks know 9/11 gave your state governor immense control over your health.
Worried about a biological attack, governments across the land penned a bevy of ideas that most Americans are only finding out about some 19 years after the fact.
Your governor, as you now know, has the power to quarantine you or the whole state. So does the president.
With an emergency declaration, he can ration vaccines and other medicines.
And if things get really bad, in states like Arizona, the governor can jab you with a needle of the serum of his choice. In the Grand Canyon state, the governor can force the vaccination of folks diagnosed with a deadly disease or, get this, simply those who are reasonably believed to have been exposed or who may reasonably be expected to be exposed.
This isnt some internet myth or hype. Its fact. You can read the bill here.
We sure hope any vaccines that hit the market arent rushed because theyd be sticking us all this week if they could.
And dont try hiding your cough or blaming allergies.
The same laws that let the governor vaccinate you also let his boys dig into your medical records to see if youve asked a doc about your symptoms and they let the government track your calls and movements just to verify youre not hanging out with large groups or other infected folks.
But before you go thinking were preaching some sort of anti-vax message, we beg you to remember that none of this comes along with the great protections that make America America.
This can all and has been ordered by just one man.
Theres no judge or jury.
Theres no Fifth Amendment that keeps your business open until your case is heard.
Theres no Fourth Amendment that keeps the man from looking in your shop windows.
Theres not even a First Amendment right to protest when the government tells us we cant gather in groups of three or more.
This a dangerous disease.
Its a hell of a time in America.
But we must not make it worse.
We must open our minds and see all that is going on.
Some of its good (weve reported it). Some of its quite bad.
But more folks must understand the decisions and precedents we set today will affect this country for good.
If we fail now, this crisis will never go away.
This is about to become a huge discussion across the nation. Please join it with an open and informed mind.
Note: Are our core values in danger? Send us your thoughts here.
Andy did what most of us can only dream of. He left our bustling society to rough it in the Alaskan wilderness no roads, no electricity, nothing but the outdoors and his sharp mind. While there, he met with top investors and entrepreneurs from across the globe, all seeking out his expertise. His experience inspired the idea for his unique publishing company, Manward Press. Not only does Andy dish out top-notch investment advice (after all, he spent a decade as an advisor at one of Wall Streets top brokerages), but his mission is to lead folks to richer, healthier lives through his science-backed Triad of Liberty, Know-How and Connections. His one-of-a-kind free daily e-letter,Manward Digest, is a true fan favorite.
See the article here:
The Consequences of the Coronavirus Will Haunt Us Forever - Investment U
Posted: at 6:21 am
For most peopleand especially Lawfare readersthe word surveillance conjures up images of law enforcement investigations and foreign intelligence operations. But surveillance plays a major role in an equally important way of keeping people safe: public health. One of epidemiologists most powerful tools is disease surveillancethe monitoring, at both the population and individual levels, of whos been infected and with whom theyve interacted. And as the outbreak of the novel coronavirus and the disease it causes, COVID-19, brings American economic and social life to a halt, it is worth asking: What will be the effects on government surveillance? And while even the precise short-term effects are still hazy, we can already see signs that the outbreak may usher in a permanent and far-reaching expansion of the surveillance state.
Government-mandated disease surveillance has a long history in the United States, from the first reporting law (in colonial-era Rhode Island, for smallpox, yellow fever and malaria) to the sophisticated programs that the Centers for Disease Control and Prevention and state public health agencies run today. But COVID-19 could drive surveillance to a much higher level, for two reasons.
First, the COVID-19 pandemic is the most serious pandemic that the United States, indeed the world, has dealt with since the 1918 influenza outbreak. The coronavirus outbreak may well prove to be the most socially disruptive event of the past 100 yearseven World War II did not require hundreds of millions of Americans to effectively shelter in place for an indefinite period. Whether one is chiefly concerned about the public health impact of COVID-19 or the economic and social toll of the response (or all of the above), this episode will no doubt convince policymakers that drastic steps may be justified to stop this outbreak and prevent future ones.
Second, technological advances make it possible to collect a vastly larger and more precise trove of information. Internet-connected thermometers, thermal-imaging cameras (especially when combined with facial recognition software) and algorithms that scrape and process social media posts can all help detect the spread of disease in near real time and at an individual level. The ubiquity of GPS-enabled smartphones can allow health authorities to determine with whom infected individuals may have had contact, thus allowing for faster and more precise contact-tracing. Governments can use databases of individuals phone numbers and email addresses to proactively notify them of exposure and then use location data to monitor and enforce quarantines.
Countries worldwide are already stepping up surveillance in hopes of flattening the curve. In particular, China, which appears to have managed to all but eliminate local transmission of the virus, has, in addition to locking down hundreds of millions of people, adopted some of the most extreme surveillance measures, from using data from telephone companies to monitor quarantine compliance to developing apps that assign color codes to individuals based on their health status.
But increased surveillance has not been limited to authoritarian states. Other Asian countries, such as Taiwan, Singapore and South Korean, have also used aggressive surveillance and tracking to keep coronavirus infection rates low without resorting to mass lockdowns. Perhaps taking notice, liberal democracies are stepping up as well. Israel has repurposed its domestic spy agencys trove of cell phone data to notify individuals who may have come into contact with those infected with the coronavirus. The United Kingdom is developing an app that would do the same thing, but on a voluntary basis. Even the European Data Protection Board, perhaps the worlds strictest privacy regulator, has clarified that individualized phone-based tracking may be permissible, assuming legislative authorization and adequate safeguards.
In the United States, which seems perennially behind the curve on all things coronavirus, there has not yet been (at least not publicly) an expansion in individual electronic surveillance to fight the pandemic. But the longer it continues, the more likely that federal, state and local governments will turn to such technologies to enable a more targeted approach to coronavirus management. The federal government is already in talks with tech giants to use cell phone data to track the virus (though for now the discussion seems to be limited to anonymized data). Strikingly, even the Electronic Frontier Foundation has conceded that more surveillance will be necessary, noting, In the digital world as in the physical world, public policy must reflect a balance between collective good and civil liberties in order to protect the health and safety of our society from communicable disease outbreaks. When it comes to increased surveillance to fight the coronavirus, the question seems to be not if, but when.
Although the outbreak will at some point be controlled, the expansion of government surveillance is likely to be permanent, for two reasons. First, the cost of the coronavirus response is proving astronomical. The public may well decide that it was justified, given the potential severity of the outbreak, but it will surely expect the government to put in place measures to deal with future outbreaks in a less socially disruptive way. COVID-19which is on track to cause thousands of deaths and trillions of dollars of economic destructionis public healths 9/11, and it will serve as a never again moment that will drive policymaking for years to come.
Second, surveillance programs tend to stick around long past when the emergency that initially justified them has faded. Some of this is due to bureaucratic inertia and path dependency, and some to mission creep as the government finds additional ways to use the data. Either way, now is the time to start thinking about the short- and long-term future of disease surveillanceand how it may interact and overlap with law enforcement and national security surveillance.
Some of the questions are legal ones. For example, does the Stored Communications Actwhich permits companies to voluntarily share data with the government in case of an emergency but does not permit the government to require data disclosure outside a criminal investigationneed to be modified? And if so, what should be the corresponding privacy protections? What limits might the Fourth Amendment impose on searches and seizures performed for administrative or special needs purposes, like public health, and can the data obtained also be used for law enforcement investigations?
Other questions will be about policy. Here public health and legal experts could fruitfully come together to develop evidence-based, constitutionally permissible reforms to surveillance laws and programs. In doing so, they should be particularly wary of exaggerated claims of surveillance effectiveness, either from companies trying to hawk their products or government officials seeking to exploit this crisis for their own purposes not related to public health (as already appears to be taking place, both in the United States and in authoritarian countries such as Russia, China and Iran). But they should also resist privacy absolutism.
Difficult as these questions will be, weve no choice but to face them. As our current situation makes clear, pandemics pit one kind of liberty against another: the liberty to be free from intrusive government monitoring against the liberty to be free from disease and, in due course, from the heavy-handed measures needed to bring it back under control. As our national lockdown grinds on, Americans may decide that the freedom to avoid being monitored is less precious than the freedom to leave their homes.
Government Surveillance in an Age of Pandemics - Lawfare
Posted: February 29, 2020 at 11:23 pm
The U.S. Supreme Court held last week in Hernandez v. Mesa that the parents of a Mexican national shot and killed in Mexico by a U.S. Border Patrol agent cannot sue that agent in federal court. The decision was 5-4, dividing the court along what many observers regard to be predictable ideological lines.
But to view this decision through the lens of partisan ideology would be a mistake.
The incident that launched the case is horrifying. When 15-year-old Sergio Adrin Hernndez Gereca was playing in a cement culvert between El Paso, Texas, and Cuidad Juarez, Mexico, in 2010, the Border Patrol agent detained his friend and shot Hernndez in the face, killing him. Hernndez was standing in Mexican territory.
At bottom, this case was not about whether Hernndezs family deserves an avenue for seeking redress for the alleged violation of their sons Fourth and Fifth Amendment rights. Rather, it is about the power of federal courts to provide a remedy where Congress has provided none.
The key legal precedent at issue in Hernandez originates from Bivens v. Six Unknown Federal Narcotics Agents, a 1971 decision in which the Supreme Court held that a person victimized by an unlawful arrest and search could bring a claim for damages in federal court directly under the Fourth Amendment, even though neither the text of that amendment nor any federal statute authorized such a claim.
That decision has been called into question by the court in recent years, based on the idea that recognizing claims not provided for in the Constitution or by Congress risks engaging federal courts in the exercise of legislative rather than judicial power.
The question in the Hernandez case was whether to extend the Bivens decision into the new context of a cross-border incident that was alleged to have violated the victims constitutional rights. In light of the international context of this dispute, the court concluded that fashioning a judicial remedy not created by Congress risked interfering not only with Congresss legislative authority but also with the presidents authority, as it pertains to national security and international affairs.
In other words, if the federal courts are effectively going to make up a right to sue that no constitutional or statutory text endorses perhaps an altogether dubious enterprise they at least should avoid such an undertaking in circumstances presenting considerations of foreign relations and border protection; such considerations are meant to be addressed by the executive branch, and involve the weighing of costs and benefits of a kind the judiciary is ill-suited to assess.
True, the result of acknowledging that federal courts lack the power to improvise judicial remedies in this context means that the victims parents in this case cannot recover damages in a federal civil action. But the proper way to address that undesirable outcome is to urge Congress to enact legislation that would authorize the lawsuit that Hernandezs parents seek.
There are several statutes in which Congress has authorized claims against government officials for alleged wrongdoing. Section 1983 of Title 42 of the U.S. Code permits the recovery of damages for constitutional violations by state officials. The Federal Tort Claims Act provides a remedy for most claims against federal government employees, but it does not apply to claims arising in a foreign country.
Either of these provisions could be amended to extend the ability to sue federal government officials for conduct that violates rights of persons abroad. The fact that neither of these statutes nor any other statute permits these suits provides a fairly strong indication that it would be inappropriate for the federal courts to permit them on their own initiative.
It is indeed tragic that Hernandez lost his life in this incident. It is also tragic that his parents cannot seek monetary damages for their loss in U.S. federal courts. But the culprit in this tragedy should not be seen as a block of conservative ideologues on the Supreme Court but, rather, a Congress that has opted not to open our courthouse doors to those whom our officials harm abroad.
A. Benjamin Spencer is the Bennett Boskey Visiting Professor of Law atHarvard Law School and the Justice Thurgood Marshall Distinguished Professor of Law at the University of Virginia School of Law. Follow him on Twitter @PROFSPENCER.
Read more from the original source:
Justices make the tough but right call in cross-border shooting case | TheHill - The Hill
Posted: at 11:23 pm
On Tuesday, the Supreme Court decided in Hernandez v. Mesa that there is no cause of action for damages if a federal border patrol agent unconstitutionally shoots somebody across the border. The Court had recognized a cause of action under the Fourth Amendment against federal law enforcement agents in a 1971 case called Bivens, and extended it in two subsequent cases, but it has rejected further Bivens claims in every Supreme Court Bivens case in my lifetime and that doesn't seem likely to change. Two Justices, Thomas and Gorsuch, have called for Bivens to be overruled on the grounds that it lacks a formal or historical basis.
Justices Thomas and Gorsuch are right about that the lack of a formal and historical basis, but I worry about the broader picture. As Justice Thomas's concurrence notes, it's not like there was no remedy for unconstitutional conduct before Bivens. Rather, as Thomas writes:
From the ratification of the Bill of Rights until 1971, the Court did not create implied private actions for damages against federal officers alleged to have violated a citizen's constitutional rights. Suits to recover such damages were generally brought under state law.
What Justice Thomas does not note is that it has become very hard to bring those suits under state law either. There is some debate about whether that difficulty is attributable to Congress's 1984 enactment of the Westfall Act, various judicial decisions arguably misconstruing that act, or what (see this article by Vladeck and Vasquez), but I think at this point we're entitled to wonder, if the Court is going to abolish the 20th century remedies for unconstitutional conduct, can we at least have the 19th century remedies back?
Normally the Court lacks the ability to take a big-picture view in these cases, since it has only the issue before it. But in Hernandez, the petitioner foresaw this problem and petitioned the Supreme Court to consider a second question if there is no Bivens liability, then, he asked:
whether the Westfall Act violates the Due Process Clause of the Fifth Amendment insofar as it preempts state-law tort suits for damages against rogue federal law enforcement officers acting within the scope of their employment for which there is no alternative legal remedy.
So Hernandez is the rare case in which the Court could have considered both questions at the same time and thus provided an account for what violations of constitutional violations remain. It does seem perverse to think that Congress can eliminate state law damages for constitutional violations without either Congress or the courts providing an alternative . It's possible that this seemingly perverse result is constitutional, especially if one takes a broad view of federal power, but it seems troubling for the Court to repeatedly narrow Bivens without at least considering that question.
[Cross-posted from Summary, Judgment.]
Originally posted here:
Bivens Liability and Its Alternatives - Reason
A Democratic president could have a big impact on the tech industry here’s where the candidates stand on important tech issues – CNBC
Posted: at 11:23 pm
Democratic presidential candidates (L-R) former New York City Mayor Mike Bloomberg, Sen. Elizabeth Warren (D-MA), Sen. Bernie Sanders (I-VT), former Vice President Joe Biden, former South Bend, Indiana Mayor Pete Buttigieg, and Sen. Amy Klobuchar (D-MN) arrive on stage for the Democratic presidential primary debate at Paris Las Vegas on February 19, 2020 in Las Vegas, Nevada.
Ethan Miller | Getty Image
Voters from the 14 states and one U.S. territory hosting primaries and caucuses on Super Tuesday have plenty of issues to consider in choosing a presidential nominee. Besides top issues like healthcare and gun policy, some voters may be weighing the Democratic candidates' stances on technology.
Americans have grown increasingly concerned about the power Big Tech companies like Facebook, Google, Amazon, Apple and Microsoft wield over their personal information and future job prospects. A Pew Research Center survey found that attitudes toward tech companies soured in the last half of the decade. Between 2015 and 2019, the percentage of adult U.S. respondents who said tech companies have a positive effect on the way things are going in the country declined from 71% to 50%,.
Among the Democratic candidates, Massachusetts Sen. Elizabeth Warren has made the biggest and earliest splash with her views on the tech industry, releasing her plan to "break up Big Tech" in March. But Warren is not the only candidate to have weighed in on tech issues, which extend well beyond antitrust.
Here's what voters should know about the stances of the top-polling Democratic presidential candidates on the key tech issues:
Vermont Sen. Bernie Sanders said at a Washington Post event last year that he would "absolutely" try to break up Facebook, Google and Amazon. Sanders is perhaps only second to Warren in his readiness to declare support for a breakup.
Former South Bend, Indiana Mayor Pete Buttigieg said that as a candidate for office, he doesn't feel it's appropriate to dictate what companies should be broken up, according to his interview with the New York Times Editorial Board. But he would empower the Federal Trade Commission to better assess and handle anticompetitive behavior by tech firms, he said at a CNN town hall in April.
Former Vice President Joe Biden said we should "be worrying about the concentration of power" in an interview with The New York Times Editorial Board. The tech industry experienced relatively positive treatment under the Obama administration, but Biden told the editorial board, "There are places where [Former President Barack Obama] and I have disagreed."
Massachusetts Sen. Elizabeth Warren was the first out of the gate with her proposal to break up Big Tech. Since then, she's maintained a persistent drumbeat on the topic. Warren has pledged to turn down large donations from Big Tech executives to shirk any questions of influence, though it's not entirely clear what her campaign counts as its threshold.
Minnesota Sen. Amy Klobuchar, the top Democrat on the Senate Antitrust Subcommittee, said "this consolidation issue is the most underrated discussed issue of our time," in her interview with the Times Editorial Board. Klobuchar said strong antitrust enforcement involves looking back at past mergers like that of Facebook and Instagram. Last year, Klobuchar introduced legislation to update antitrust enforcement, including by shifting the burden onto companies to prove that very large mergers won't hurt competition.
Former New York City Mayor Mike Bloomberg, a billionaire tech and media mogul himself, told the The Mercury News in January that Warren and Sanders don't "know what they're talking about" when it comes to breaking up the big tech companies. He said he is open to more narrow forms of enforcement.
Sanders told Vox, "Americans have the right to their own data and that there should be strict penalties for companies who are negligent in protecting that data." He added that there should be oversight of the collection and sale of consumer data, particularly by Big Tech companies like Facebook.
Buttigieg said in a podcast interview that he believes Americans should have a "right to be forgotten," similar to that granted to citizens of the European Union. Buttigeg told journalist Kara Swisher on the Recode Decode podcast, "we need to have some level of relationship to the value that is created in our name." A U.S. version of the "right to be forgotten" would likely raise serious First Amendment issues, but Buttigieg argued tech companies are already making decisions around speech "because the policy world didn't figure it out."
Warren has proposed legislation that would allow executives of companies with more than $1 billion in annual revenue to be held criminally liable in cases where they are found to have acted negligently and violated civil law impacting the personal data of 1% of a state or American population.
Klobuchar has signed on a key Democratic privacy bill in the Senate that would allow for states to continue to issue and enforce their own privacy laws and give individuals the right to bring their own lawsuits against companies they feel violated their rights.
Bloomberg has indicated a preference for consistency in federal digital privacy legislation, seeming to align with conservatives who want a federal law that preempts state law, according to an interview with The Mercury News.
Sanders told Vox he opposes "the Trump administration's efforts to compel firms to create so-called 'backdoors' to encrypted technologies an attack on the First and Fourth Amendments that would ultimately leave everyone less secure." He also said, "Technology cannot shield people from the justice system, especially when it comes to white-collar and other financial crimes."
Buttigieg told Vox, "End-to-end encryption should be the norm," but that "we also need to ensure that law enforcement has access to the tools it needs to keep us all safe." He advocated for "heightened legal standards" for government officials trying to gain access to data with new tools, such as a court order and proof all other options have been exhausted.
Biden hasn't commented much on encryption this election cycle, but he did introduce a counter-terrorism bill in 1991 that would have allowed government officials to obtain data and communications from electronic service providers "when appropriately authorized by law." While the bill did not become law and technology has rapidly evolved in the intervening years, the legislation is reminiscent of Attorney General William Barr's calls for tech companies to build in a way for law enforcement to access encrypted devices and messages with a warrant.
Warren has said, "The government can enforce the law and protect our security without trampling on Americans' privacy. Individuals have a Fourth Amendment right against warrantless searches and seizures, and that should not change in the digital era," according to her response to Vox's question.
Klobuchar, a former prosecutor, expressed an understanding of law enforcement's challenges during the 2016 standoff between Apple and the Federal Bureau of Investigation, which requested help unlocking an iPhone used by a shooter in an attack in San Bernadino, Calif. Klobuchar said in a statement to the MinnPost at the time that "very real risks have been presented as criminals and terrorists are constantly trying to utilize the latest technologies to evade capture and conviction," adding that "any proposal that would limit data security available to the public could impede efforts to protect American businesses and consumers from cyber-attacks by criminals and foreign governments."
Bloomberg dug into the tech industry for resisting calls to build a backdoor into encryption for government officials in a 2016 Wall Street Journal op-ed following the public fight between Apple and the FBI over unlocking the San Bernadino shooter's phone. Bloomberg acknowledged encryption's benefits for people living under repressive regimes, but said, "We can work to undermine repressive regimes in ways that do not compromise our own safety, and we should expect tech leaders to help lead the way."
Sanders told Vox that Section 230, the law that shields online platforms from legal liability for their users' posts, was drafted "well before the current era of online communities, expression and technological development." Sanders said he "will work with experts and advocates to ensure that these large, profitable corporations are held responsible when dangerous activity occurs on their watch, while protecting the fundamental right of free speech in this country and making sure right-wing groups don't abuse regulation to advance their agenda."
Buttigieg hasn't made clear his stance on Section 230 but has suggested tech companies should take more responsibility for their role in spreading hate online and should be required to root out misinformation in political ads. Buttigieg told Vox he would "identify online platforms and other companies that refuse to take steps to curb use by hate groups."
Biden has taken the most extreme view of the Democratic candidates when it comes to Section 230, telling the Times editorial board that it "should be revoked ... For [Facebook CEO Mark] Zuckerberg and other platforms." Other candidates have not taken such a strong approach on Section 230 likely because it also allows for online platforms to engage in "good faith" content moderation to remove the most insidious content from their sites without fearing legal repercussions.
Warren said in a campaign plan that she would "push for new laws that impose tough civil and criminal penalties for knowingly disseminating this kind of information, which has the explicit purpose of undermining the basic right to vote," referring to false information about voting in U.S. elections. She called on tech platforms to take responsibility for spreading disinformation, asking them to share resources and even open up information about their algorithms and allow users to opt out so they don't need to be subject to amplified material.
Klobuchar said Section 230 "is something else that we should definitely look at as we look at how we can create more accountability," in an interview at South By Southwest recorded for the Recode Decode podcast. But she said, it's not the goal to "destroy" tech companies.
Bloomberg has said social media companies should be held to similar legal standards as media outlets. In an interview with The Mercury News, Bloomberg said, "Society shouldn't give up the protections that we have from the press's responsibility just because it helps them make more money." He stopped short of saying Section 230 should be repealed and said he didn't know which part of the law should be altered.
Sanders has been long been a vocal supporter of net neutrality, the concept that broadband providers should not be allowed to block or slow access to websites or require payments to deliver faster speeds. When Federal Communications Commission Chairman Ajit Pai ordered net neutrality to be repealed in 2017, Sanders said the decision was "an egregious attack on our democracy." He advocates for reinstating net neutrality in his campaign plan.
Buttigieg said on Twitter last year he would "make net neutrality the law of the land." Buttigieg was one of 100 mayors to sign the Cities Open Internet Pledge while in office, which required internet providers doing business with those part of the pledge to follow principles of net neutrality.
Biden has not said much on net neutrality recently, but he has previously positioned himself as a skeptic. In 2006, while serving as a Delaware senator on the Judiciary Committee, Biden said it didn't seem necessary to introduce a preemptive law because if discrimination feared by net neutrality advocates did occur, there would be such a dramatic public response that "the chairman will be required to hold this meeting in this largest room in the Capitol, and there will be lines wandering all the way down to the White House." The Obama administration in which he served, however, was a champion of net neutrality.
Warren has advocated in the Senate to restore net neutrality rules, saying in 2018 that their repeal "has corporate greed and corruption written all over it." In her plan for "Investing in Rural America," Warren said she would appoint FCC commissioners who would restore net neutrality.
Klobuchar has publicly supported net neutrality in the Senate, calling the rules "important protections" and saying the FCC's vote to eliminate them "will harm consumers, particularly in rural areas. It will limit competition. And it will hurt small business entrepreneurship and innovation." In her "Plan for the Future of Work and a Changing Economy," Klobuchar promises to "work to codify strong net neutrality principles and make immediate progress in her first 100 days [as president] by using federal contracting requirements to encourage broadband providers to honor net neutrality principles and promote a free and open internet."
Bloomberg hasn't said much either way about net neutrality at this point in the campaign.
Sanders has said, "We do need new trade policies that are fair to the working people of this country, not just to the CEOs, but as usual, I think Trump gets it wrong in terms of implementation," according to Vox. Sanders said on CNN last year he would "of course" use tariffs to reach a deal with China, but only "used in a rational way within the context of a broad, sensible trade policy."
Buttigieg said on CNN last year that it's "a fool's errand to think you will be able to get China to change the fundamentals of their economic model by poking them in the eye with some tariffs." In the June Democratic debate, Buttigieg shared his concerns with China's advancement in technology, saying, "China is investing so they could soon be able to run circles around us in artificial intelligence and this president is fixated on the relationship as if all that mattered was the balance on dishwashers... The biggest thing we have to do is invest in our own domestic competitiveness."
Biden said in a speech last summer that if the U.S. fails to act to counter China, it will "keep moving and robbing U.S. firms" of technology and intellectual property. He advocated creating "a united front" of economic partners who can hold China accountable. Biden said at the time, "there's no going back to business as usual on trade with me."
Warren said in 2018 that U.S. policy toward China had been "misdirected" for years and "Now U.S. policymakers are starting to look more aggressively at pushing China to open up the markets without demanding a hostage price of access to U.S. technology," according to Reuters. In a campaign blog post, Warren said, "tariffs are an important tool, [but] they are not by themselves a long-term solution to our failed trade agenda and must be part of a broader strategy that this Administration clearly lacks."
Klobuchar has said it can make sense to use tariffs, but that there needs to be a level of consistency to both the promises and threats made in the process. She criticized Trump's tariffs as being too broad and hurting allies in the process during the September Democratic debate.
Bloomberg said at the most recent Democratic debate that "we have to deal with China, if we're ever going to solve the climate crisis." Addressing his past statements that Chinese President Xi Jinping is not a dictator, Bloomberg said "he does serve at the behest of the Politburo" but that "You can negotiate with him. That's exactly what we have to do, make it seem that it's in his interest and in his people's interest to do what we want to do, follow the rules, particularly no stealing of intellectual property; follow the rules in terms of the trade agreements that we have are reciprocal and go equally in both directions."
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Posted: at 11:23 pm
Clearing up misconceptions about the roles of the PWC, City of Fayetteville in sewer line installation
Since the Fayetteville Public Works Commission (PWC) began the utility retrofitting of annexed areas related to the City of Fayetteville in its 2005 Phase V annexation, public misconceptions about the multi-faceted project seem to arise from time to time. On behalf of the PWC, I would like to provide some facts and historical perspective related to the work PWC has undertaken on behalf of the city mainly in the western side of our community.
When the city engaged in the so-called Big Bang annexation, it was obligated to extend water and sewer services to annexed properties, and the city could do so by charging property owners.
The city entered into a contract with the PWC to install the utilities in the Phase V area and agreed to contribute to the expense of the project which was estimated to be $220 million by imposing an assessment on property owners in the annexed neighborhoods. The assessment would help pay for installing sewer lines to over 8,000 properties.
The assessment, set at $5,000 for the typical single-family residential lot, was capped by the City Council. Both parties have followed the terms of the Agreement, as amended, since 2008.
Prior to 2016, under the agreement, the city and the PWC split the cost to install sewer and water lines that exceeded the $5,000 single-family residential assessment. Without this agreement with PWC, the city and property owners in the annexed neighborhoods would have been responsible for the entire cost of the utility expansion project.
In 2016, as part of the changes in the legal relationship between the PWC and the city that occurred as a result of the new PWC Charter adopted by the General Assembly, the PWC entered into a fourth amendment to the 2008 agreement.
The amendment was approved by the PWC Commissioners on June 22, 2016 and City Council on June 27, 2016. The amendment was signed by then PWC Chair Darsweil Rogers and Mayor Pro Tem Mitch Colvin. The parties 2016 amendment ended the citys direct financial responsibility, leaving the PWC and its customers to bear the entire cost of utility-line extension in excess of the $5,000 single family assessment amount.
For perspective, in 2008, the average installation cost per residential lot was $15,000. That cost has now grown to nearly $40,000 per lot, and while the PWC believes installing these services remain in the best interest of the City of Fayetteville, the adverse impact to PWC ratepayers continues to grow.
The PWC does not issue assessments; we have no statutory authority to do so. Only the city has that authority. Because these assessments are for sewer and water services, and the responsibility for collecting the assessments has been delegated to they PWC, they are viewed as a PWC fee. In fact, the assessments are imposed by the city and used to defray the cost of this expansive project.
Understanding that residents may have difficulty paying the assessment all at once, there are provisions to pay over time, up to 10 years. In addition, the city has successfully applied for grants to assist low-income residents pay their assessments.
As the PWC has worked through the challenges of retrofitting utilities in established neighborhoods, in 2017, it took on another expense, previously paid by the city. The PWCs Commissioners agreed to pave, not patch, streets in all future installation areas to ensure residents received the benefit of good roads following the completion of utility work.
No unintended tax
Today, utility installation is more than half complete. The PWC is scheduled to bid the final areas in 2024. PWC representatives have engaged in productive discussions with our mayor and his staff regarding acceleration of the work remaining. While we are sensitive to our neighbors desires, any potential acceleration to the work would have a minimal impact on when sewer is available to residents. Moreover, all should be aware that it could significantly increase design and installation costs, which would have additional impact on costs and customers rates.
As commissioners, we are required by our charter to take action so rates are set not only in the best interest of the city, but also the customers of the Commission. We take our responsibility very seriously as we try to balance our decisions. We do not want to create, nor will we create, an unintended tax on our ratepayers for an annexation which is outside of our purview as the hometown utility.
There is a great advantage to our citizens owning a hometown utility, where decisions are made in the best interest of all ratepayers who are also our neighbors. The PWC does not seek a profit when we provide utility services; however, we do work daily on sustainability, accountability and reinvestment in your utility to keep it strong and viable.
It is a jewel that belongs to you the customers and citizens. It is not some monolithic entity that will put profits above all else. The PWC will continue to meet our obligations under the agreement with the city, and we will seek all reasonable and practical opportunities to help property owners in annexed areas. We will work diligently to fulfill this commitment and soon complete this long, challenging, yet necessary chapter of Fayettevilles history.
Evelyn Shaw is chairwoman of the Fayetteville Public Works Commission.
Posted: at 11:23 pm
Attorney General William Barr wants the Foreign Intelligence Surveillance Act to be renewed pronto with no questions asked. If any reforms are needed, he promises to take care of them himself: Dont worry yourself, America.
Is Barr kidding?
First, a short history lesson. Due to the officials within the government, including Presidents Richard Nixon, Lyndon Johnson, and no doubt many before them, using federal resources to spy on citizens and political opponents, the Foreign Intelligence Surveillance Act was passed in 1978. The law set up rules and a court designed to protect our Fourth Amendment privacy rights.
The goal was noble: FISA and its court would give the green light on going after terrorists while, ostensibly, protecting U.S. citizens from unconstitutional intrusions. Then, in the wake of 9/11, Congress passed the USA Patriot Act, which lowered FISA standards. This, too, was supposedly for the sole purpose of targeting terrorists.
But by 2003, according to the New York Times, The Bush administration, which calls the USA Patriot Act perhaps its most essential tool in fighting terrorists, has begun using the law with increasing frequency in many criminal investigations that have little or no connection to terrorism.
The newspaper reported, The government is using its expanded authority under the far-reaching law to investigate suspected drug traffickers, white-collar criminals, blackmailers, child pornographers, money launderers, spies and even corrupt foreign leaders.
Obviously, what was originally promised concerning the scope of the Patriot Act has changed significantly. This point was driven home in the 2006 movie The Departed, in which Boston police officers and the FBI are surveilling gangsters, and the police captain exclaims, The Patriot Act! I love it! I love it! I love it!
Far from just focusing on terrorists, the Patriot Act has become an extraconstitutional law enforcement tool. It has overwhelmingly been used to catch drug dealers more than terrorists. The Washington Post reported in 2011 that after a decade, the Patriot Act ha[d] been used in 1,618 drug cases and only 15 terrorism cases.
In 2013, whistleblower Edward Snowden revealed to the world that the U.S. government was spying on everyone in every way imaginable. Former President Barack Obama attacked Snowden and insisted that government agents were "not abusing [their] authorities to listen to your private phone calls or read your emails."
In fact, the government was doing all of these things. By 2019, many wondered if the U.S. government had spied on President Trumps campaign exactly the kind of Watergate-style corruption that inspired FISA in the first place.
Obviously, FISA is badly in need of reform.
With FISAs expiration looming in mid-March, Barr held a lunch briefing on Tuesday that most Republicans came out of agreeing to pass a clean extension, with Senate Majority Leader Mitch McConnell leading the pack. Barr assured them that any changes that needed to be made to prevent Trump or citizens from being spied on illegally again are actions he would take internally.
Yeah, right. It should be noted here that Barr believes the Patriot Act doesnt go far enough.
When libertarian-leaning Republican Sens. Rand Paul and Mike Lee voiced their objections to what essentially amounts to a reformless FISA extension, Barr reportedly told them criticizing U.S. government surveillance was dangerous. Why? Because it supposedly helps terrorists. This debate is just about terrorism. Nothing else.
In a series of tweets, Lee laid out what reforms he believed needed to be made before FISA should be renewed and added in a later tweet:
Its a safe bet that most Americans would agree. Sadly, the attorney general could care less about FISA reform. After all, Barr is asking citizens to entrust him with protecting the same constitutional rights he has abused for decades.
Jack Hunter (@jackhunter74) is a contributor to the Washington Examiner's Beltway Confidential blog. He is the former political editor of Rare.us and co-authored the 2011 book The Tea Party Goes to Washington with Sen. Rand Paul.
Posted: at 11:23 pm
John D. Vanderwielen walks out of the Tippecanoe County Courthouse, Friday, Feb. 28, 2020 in Lafayette. Vanderwielen is accused of aggravated battery with risk on life, domestic battery with a deadly weapon, battery with a deadly weapon, domestic battery, battery resulting in bodily injury, criminal recklessness with a deadly weapon, resisting law enforcement and possession of paraphernalia after allegedly taking three hits of acid before attacking his parents.(Photo: Nikos Frazier | Journal & Courier)
LAFAYETTE Eighteen-year-old John Vanderwielen is one step away from formalizing his 18-month diversion agreement that allows him to avoid jail and prison for allegedly attacking his father with a knife and punching his mother.
During a hearing Friday, Tippecanoe Superior 2 Judge Steven Meyer set a hearing for 1 p.m. March 18 to decide if the court will sanction the agreement between Vanderwielen and prosecutors.
The hearing will give prosecutors time to correct a few typos in the Feb. 13 signed agreement, Vanderwielen's attorney, Steve Knecht, told the court Friday.
Vanderwielen, who was 17 at the time of the Jan. 26, 2019, attacks, will be required to maintain lawful behavior, get his high school equivalency and successfully complete the Restoration Men's Ministry through Faith Church, according to the agreement.
Until his acceptance into the Restoration Men's Ministry, he will remain on community corrections and will live with his aunt and uncle, where he's lived since posting bond last summer.
Vanderwielen's agreementwaiveshisconfidentially for the ministry's program, and he also waived his Fourth Amendment protections from unreasonable search and seizure, according to the agreement.
During the agreement, Vanderwielen cannot return to his parent's house in the 3900 block of Sunnycoft Place in rural West Lafayette, where the attacks happened, according to the agreement.
Additionally, the no-contact order prescribing how he can interact with his parents remains in effect during the deferment program.
His status will be reviewed by the court every 90 days during the deferment, according to the agreement.
If he goes astray from the agreement's conditions, prosecutors can revoke the agreement, and he might be prosecuted.
If prosecutors revoke the agreement, Vanderwielen faces felony charges of domestic battery with a deadly weapon, battery with a deadly weapon and criminal recklessness with a deadly weapon. He also faces misdemeanors of domestic battery, battery with injury, resisting law enforcement and possession of paraphernalia. Additionally, prosecutors could refile the most serious charge aggravated battery with substantial risk of death, a Level 3 felony. That chargewas dismissed earlier this month.
According to Indiana law, a diversion agreement can be offered by prosecutors to defendants charged with lower level felonies, as well as misdemeanors. The Level 3 felony was an impediment to the diversion agreement.
The teen's legal problems in adult court started early Jan. 26, 2019, when he punched his mother in the face, then went downstairs and stabbed his father in the neck and face, according to a probable cause affidavit filed after his arrest.
Vanderwielen was waived into adult court on Feb. 14, 2019.
Reach Ron Wilkins at 765-420-5231 or at firstname.lastname@example.org. Follow on Twitter: @RonWilkins2.
Go here to see the original:
Diversion agreement hearing set for teen accused of stabbing his dad - Journal & Courier
NSA Blew $100 Million On Phone Records Over Five Years, Generated Exactly One Usable Lead – Techdirt
Posted: at 11:23 pm
from the try-not-to-ask-what-your-country-can-do-for-you-because-as-you-can-see... dept
The telephone metadata program the NSA finally put out to pasture in 2019 was apparently well past its expiration date. Since the initial Snowden leak in 2013, critics have argued the program needed to die since it was obviously the sort of general warrant rummaging (only without the warrant!) the founding fathers headed off with the Fourth Amendment.
The program wasn't remade/remodeled until the passage of the USA Freedom Act in 2015. That took the phone records away from the NSA and left them at their place of origin -- the databases maintained by telcos and other service providers. The government was also required to put forward some sort of articulable suspicion before asking for phone records from telcos.
The NSA was uniquely unprepared to handle these sorts of transactions, having been built from the ground up to collect everything and sort through it later. Now that its searches were more confined, it frequently found itself obtaining more records than it could legally justify having. The cost of compliance managed to outweigh the benefits of the program and the NSA just kind of stopped approaching the FISA court with requests for communications metadata.
Still, proponents argued the program had value -- possibly unrealized -- and that it should not be written out of existence by the periodic surveillance powers renewal process. I have no idea what they planned to use as evidence for these claims. A new report by Charlie Savage for the New York Times makes it clear even the most obligatory cost-benefit analysis should lead Congressional oversight to question why it allowed the modified Section 215 collection to limp along for another five years.
A National Security Agency system that analyzed logs of Americans domestic phone calls and text messages cost $100 million from 2015 to 2019, but yielded only a single significant investigation, according to a newly declassified study.
$100 million for a single investigation lead. How's that for ROI? It actually produced two leads, but the other lead was a dead end that terminated an investigation before it could get past its initial stages.
Not only was the program useless, it was also redundant.
It also disclosed that in the four years the Freedom Act system was operational, the National Security Agency produced 15 intelligence reports derived from it. The other 13, however, contained information the F.B.I. had already collected through other means, like ordinary subpoenas to telephone companies.
Killing the program just makes sense. And Congress can do it with during the renewal process for the USA Freedom Act, which expires in March of this year. With this information in the public domain, no one can seriously argue the program should continue to consume tax dollars and provide almost zero usable intel for another five years. Given the fact these agencies can still use subpoenas to target phone records, it would seem far more beneficial for everyone if the NSA and FBI did a bit more targeted snooping, rather than use the Foreign Intelligence Surveillance Act to sweep up Americans' phone records.
Filed Under: mass surveillance, metadata, nsa, phone metadata, section 215, surveillance, usa freedom act