Archive for the ‘4th Amendment’ category

Give Me A Home (Sanctuary) Where The Buffalo Roam

March 29, 2017

Attorney General Jeff Sessions said at a White House press briefing that his department would crack down on those municipalities known as “Sanctuary Cities” by withholding Government grant money. Observers thought this familiar threat was made mainly to change the media subjects from the rejection of the Republicans healthcare bill and the controversy surrounding potential Russian collusion with Trump campaign staff members. Good try but probably too little to late.

The sanctuary city theme is both provocative and Constitutionally important. Both points seem to be missed with AG Sessions in favor of partisan political ground fire.

Sanctuary Cities are municipalities which have said they will not actively help Immigration Agents unless the agents have a warrant (so as to not violate the 4th Amendment). At first blush, this refusal of Federal Immigration officers request seems unjustified. But in most cases, Immigration Officers want local officers to notify them whenever they take into custody any undocumented alien.

In practice, the Immigration agent must then get a warrant (taking up to several days) during which time the local municipality must house and feed someone for whom they have dropped charges. Again, this is a violation of the 4th Amendment, not to mention a costly decision.

Most Sanctuary Cities claim that in addition to the 4th Amendment, a policy of turning over all undocumenteds would drive that community underground. The fear is that both petty and serious crimes which took place in neighborhoods where undocumented lived would go unreported resulting in increased violence and make a larger area unsafe. This argument has fallen on deaf ears with the arrival of the Trump Administration.

Of course, Sessions threats could be simply a “shot across the bow” and intended to bully local municipalities into a more cooperative role. Sessions and the Trump Administration, however, will be in for a surprise should they actually withhold funds from a major city or county. This bully practice will be met with a counter suit, plenty of undesirable publicity, and a predictable losing court fight. Another black eye for the Administration.

The undocumented situation is a complex problem and Sessions’ promised actions won’t make a dent in the estimated 11 million currently living throughout the US. Comprehensive immigration reform, where immigrants from Mexico (and maybe central America) are documented, taxed, and required to have a known address, and are treated as guest workers with a defined path to citizenship, is the only path to solving this situation.

Comprehensive reform is politically difficult but Session rhetoric is unhelpful and potentially an action to make the situation even more difficult to improve.

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President Obama’s Strange Position

March 15, 2016

Over the weekend, President Obama spoke several times about the current stand-off between the Justice Department and Apple over help in “breaking in” to a locked iPhone. The President came down, surprisingly, on the side of the FBI and urged Apple to reconsider its position.

President Obama likened the help the FBI is seeking as no different than when the police get a search warrant and enter someone’s home. Once inside the home, the police can open, read, and confiscate anything. The President stressed the search was a Court authorized event (therefore not unreasonable search and seizure).

The “surprising” part of President Obama’s position is that usually the President is suspicious of his cabinet bureaucracies.  In this case, however, the President sees strengthening the FBI (and by extension all other police departments) as a necessary step.

Apple maintains that security is important to all its customers and were Apple to help create a “backdoor”, then all its customers would be at risk from entry by criminals and hackers. While this may be true, Apple is clearly concerned about its iPhone security reputation is other countries. Foreign customer might be thinking, is the American Government listening?

I think the President has gotten this one wrong… or is practicing deception. Most computer experts believe that the NSA could open the phone in a heart beat since it staffs as many or more hackers and geeks as does Apple. According to Washington gossip, the NSA has told the FBI no thanks when asked for help. As President, NSA’s demur could vanish in an instant.  On this basis, one could reasonably conclude that the President is trying to deceive other governments over the possibility that the NSA already knows how to enter a locked iPhone.

Privacy rights were written into the Constitution for a reason. Governments, law enforcement, and other investigatory agencies do not always follow due process, nor do they always have a just reason in attempting to gain entry. The 4th Amendment was adopted specifically to moderate an over zealous search.

The best face I can put on the President’s position is that the President is trying to convince the world that iPhones are secure and that no one (read the NSA) can get through the phone’s encryption. The President may think that Apple will prevail and the President can tell the FBI, well I tried.

For a President who has seen the limits of his own government’s agencies, I can not bring myself to think he really believes his argument as applied to the San Bernardino terrorist.

Section 215, What’s The Issue?

June 1, 2015

Last night the Senate burned the midnight oil (so to speak) in trying to pass an extension to the Patriot Act. It is amazing how something could be so Constitutionally wrong and yet seem necessary in the times we live in. Why is there such a problem?

Forgetting Presidential year politics, the trouble in passing a modified Patriot Act stems from the NSA/FBI/CIA’s prerogative to collect telephone records and then search them with a court order later. Why the objections?

Why should not the FBI search telephone records, detect that suspect A has contacted numbers known to be terrorists, get a court order and then confirm the terrorist connection?

The opposition to section 215 boils down (IMO) to whether you can trust the Government or not. Hmmm.

The Constitution’s 4th Amendment protects American against “unreasonable search and seizure”. The NSA had no “constitutional” right to collect meta data of all calls made in the US.  You might ask, if the NSA confined its searches to finding terrorists and “preventing” terrorist acts, how can that not be in the public’s best interest?

The underlying fear is that the NSA would yield the meta data to the FBI, CIA, the Treasury Department (taxes), or any other Government Department wanting to know if anyone was breaking laws or regulations. This practice is often called “fishing” and has been generally disallowed in courts as evidence. With a court order, searching meta data for a specific suspect, could identify many others also who might also have violated some law or regulation. This could lead to the possibility of many being charged as guilty until they could prove themselves innocent. Does this sound like a third world country?

Interestingly, Americans have already ceded the power to collect meta data to the phone companies. Google and most other on-line retailers already possess means to track our movements in real time. Privacy seems now to exist only for those with no phone or credit card. Hmmm.

I guess we should ask how many terrorists or terrorist plots have been uncovered?  Hmmm.  None.  Hmmm.