The Fourth Amendment Loves You Anyway

One month and 40 pages of Master’s capstone later, here’s what I know: the Fourth Amendment is a tricky thing.

I’ve spent the last month exploring Katz and Olmstead and Miller and nearly every other aspect of the Fourth Amendment’s intersection with online data.  I’ve explored how and where your data is protected from unreasonable searches and seizures, seen the lines that the government can cross (see the current Jones case for a prime example), and yet, at the end of the day, the only reaction I can get from anybody is…

So?

In the last two weeks, I’ve had no fewer than four people tell me, in some form or another, “if you’re not doing anything wrong, you have nothing to worry about.”

Just yesterday, I had a protracted INTERNET ARGUMENT with people who could not put it between their ears that forcing all welfare recipients to take a drug test was a massive violation of the Fourth Amendment.

It’s a fascinating thing, the Fourth Amendment, protecting us regular citizens from unwarranted suspicion, from intrusions on our privacy, from unreasonable searches and seizures.  But we’re willing to throw it away because “we’re not doing anything wrong.”

But here’s the thing: no.

You don’t have to look any further than the Transportation and Safety Administration for that argument to fall apart.  After all, regular folks who did nothing guiltier than book a flight are subjected to unreasonable searches every day.

The thing is, the law changes.  What raises no suspicion today is illegal tomorrow.  When we stop caring where unreasonable searches and seizures start and stop, we hand over our ability as citizens to be free from suspicion.

More succinctly: me today, you tomorrow.

Freedom as a whole is a tricky thing.  It means the freedom to let people do whatever they want, whether you approve or not.  It means the freedom to live in peace.  It means the freedom to pursue your own life, liberty and property in the way you want.

I guess that’s my point: freedom is hard.  It doesn’t always make sense.  But the alternative is constant suspicion, constant surveillance.  I choose that hard path.  And I’m thankful our founders did, too.

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Occupy Wall Street: Mocking The Meat It Feeds On

I first learned about “Occupy Wall Street” a few days before it started.

It sprung up as a collection of people angry about the economy, but was steadfastly without a driving purpose from the start.  My initial thought was: with no actual message, this is bound to go sideways.  And really, that’s all it has done: go sideways.  The few protestors that have shown up — a few thousand total across several cities — have, left to their own AdBuster’s-inspired devices…well, they’ve gone sideways.

Consider the evidence:

• The We Are the 99% tumblr blog
• The Occupy Wall St. site
• Even what my Facebook friends are linking to as an “articulate” argument

The overriding theme seems to be this: we are here because we are jealous.

Now I’ll stop to be clear: crony capitalism is an anathema to productive society.  The idea that government should choose winners and losers in any capacity — from GM to Solyandra — is a reprehensible thing.  Government should play no role in subsidizing businesses through bailouts or tax breaks or any other form of favoritism.  And inasmuch, I can agree with a certain amount of the anger inherent in these “Occupy” protests.

But I am a very long way from being convinced that this is the message these protests are about.

I'm looking forward to plunging head-first into massive amounts of debt and then complaining about it. I am the 99%.

Even the most cursory glance through the tumblr blog suggests that this is largely a movement made up of 20-somethings who want nothing to do with the reality of the decisions they’ve made.  College loans seem to be the chief concern.

And in this is the reason why I contend that jealousy is at the center of this whole thing.  College loans are an entirely voluntary thing.  The choice between taking on tens or hundreds of thousands of dollars in loans to study what you want at the best possible college vs. not going to college at all is a false choice.  Without really much brainstorming, the actual choices include (but are not limited to):

• Learning a trade
• Going to a community college and transferring to an affordable state college
• Joining the military to let them pay for college
• Attending an affordable state school outright

The list, I’m sure, goes on.  Suffice it to say, there is literally no one forcing anyone at gunpoint to attend a college which is beyond their means, to study any major they want, no matter how dismal the outlook.

Choosing to live outside your means is exactly that: a choice.

I’m not talking about unforeseen medical bills.  At one point in my life, I chose to go without health insurance and wound up in the hospital, needing surgery, with $37 in my bank account.  And despite all of my own personal poor decisions that led to that moment, I can still come away from that experience understanding just how much some people will always need a safety net.

But let’s be real: this is not about a safety net.

This is about protesting the very idea that educations cost money.  This is largely a 20-something crowd who is tired of paying back loans for a service they have already received.  And that…that doesn’t sit well with me.

Education is overpriced.  But not because education is an industry.  Government decided more people should be able to go to college and guaranteed loans; people took out more loans; colleges responded to increased demand with increased prices.

It’s not hard, people.  Government creates bubbles.  The solution to a government-created problem is not more government.  Not when it comes to crony-capitalism.  Not when it comes to pricing bubbles.

In other words, Occupying Wall Street to force government to provide a solution for a problem that government created is the very definition of a protest gone sideways.

But it’s more than that, because there’s a sizable amount of free will involved here.  Government may have created a bubble, but it didn’t force anyone to buy something they didn’t want.

When you look at other people getting a pricey education and say, “I deserve that too” regardless of how much you’ve saved up…when you look at what other people own and say, “I deserve to have one of those too” regardless of how much you’ve set aside…when you look at where other people live and say, “I should live like that too” regardless of income or savings…you’re driven by jealousy.  You lust after what your neighbor has at the risk of what you do have, and the decisions you make thereafter are your own.

Government has a legitimate role to play in helping the truly downtrodden.

Helping childish people live out their childish fantasies isn’t one of them.

On Capital Punishment

POLITICAL POWER, then, I take to be a RIGHT of making laws with penalties of death, and consequently all less penalties, for the regulating and preserving of property, and of employing the force of the community, in the execution of such laws, and in the defence of the common-wealth from foreign injury; and all this only for the public good.

John Locke, 2nd Treatise on Government 

Of all the things that I’ve rethought over the years, there is perhaps none more important than capital punishment.  I have been unabashedly pro-death penalty in my lifetime.  At turns, I justified this through all manner of reasons (see the Locke quote above for a popular one), but at no point was I in the right.

Which is why, of all of the things I have to recant, there is perhaps none more dismal than my feelings on capital punishment.

I don’t know many of the details of Troy Davis‘ case.  I haven’t been following the trials.  In fact, I didn’t even know about the case before yesterday.

But I’ve come to this conclusion: human nature — and our predilection for doing things in error or for our own benefit — is reason enough to take away from the state the right to kill human beings.

The state is already force.  It exists because of force.  It operates through force.  Extending that monopoly on violence even one iota further is a grave mistake.

I’m not talking about defending your country through war.  I’m not talking about defending your family in your own home from an intruder.  The right to self-defense — in that heated moment — is an inalienable one.

I’m talking about giving to the state the responsibility of executing humans.  Of putting human beings on trial, putting them at the mercy of fallible witnesses, putting them at the mercy of fallible experts, putting them at the mercy of fallible prosecutors, and then putting them to death.

There’s the turn.

It’s not that I can’t understand the compulsion.  If a person came into my home and took my family from me, I could only hope for a darker end for that person than the state’s lethal injection chamber.

But we are fallen, broken, erring people, each of us.  We are prone to mistakes and biases and rash judgments.  And capital punishment exists as a moment that cannot be retracted.  If new evidence surfaces later, there is no chance to double back.  If new forensic tests emerge, there is no possibility of retrial.  We have given the state the ability to irreversibly snuff out a life.

And that — that — is why I can’t support the death penalty.

Once More Unto the Breach: Ten Weeks Until The Master’s Degree

This marks the first of the final ten weeks of my Master’s program.

I’ve posted about it before, but for the uninitiated, I’m close to earning a Master’s in Information and Communication Technologies with an emphasis in Database Design and Management.

I’ll pause here while you swoon.

Ultimately, this means I’m sliding towards my final capstone (or thesis or what have you), and the thing is, even though I’m staring down the barrel of a fairly long paper, I’m pretty excited to continue blogging.  I’m pushing hard to make my paper an analysis of the intersection of ICT and civil liberties — with a particular emphasis on the stunningly useless FCC — and I can’t wait to share what I find as I delve into this thing.

You see, it’s been a book-tastic summer.  Between catching up on classics I never read the first go-round (Slaughterhouse-Five, Fahrenheit 451) and mindless fun (Robopocalypse), I read the superb The Declaration of Independents: How Libertarian Politics Can Fix What’s Wrong with America, and — hyperbole aside — few things have so buoyed my hope for the future.

We live in a world — this one right here — where until 1978, the Civil Aeronautics Board controlled every finite detail of air control, from means of entry into the marketplace to the food provided on the flights.  But in this very same world, deregulation fanatics like Ted Kennedy and Jimmy Carter of all people got the idea that maybe regulation was holding things back.

If you were alive in 1978, the Airline Deregulation Act is probably not news to you.  But in a world where the FCC not only exists but is essentially doing the same thing as the CAB, this came as a fascinating story to me.

This is the story I want to tell in my Master’s capstone: the idea that we can become more free.  That the answer to a problem caused by government (artificially high entry barrier for new ISPs) is not more regulation.  That we can have more choice, lower prices and better service when we stop passing stunningly useless legislation.

Ultimately, I guess, this post is a warning: I will probably care far too much about the stunningly useless FCC, Net Neutrality, and regulation over the coming weeks.  I will probably quote from Milton Friedman’s Free to Choose.  This pony may temporarily forget all but a single trick.

But hopefully you won’t mind.  Because, even with that paper’s barrel in my face (to reuse my terrible metaphor), I’m excited again.

Ancient Chinese Secret Blues

The summer heat and lack of air conditioning have driven me to the edge of heat madness.  My wife threatened to vomit up heat yesterday, the result of overindulgence, I think.

It’s driven me to mid-summer ennui.  An apathetic solstice.  Calgon, take me away!

The world is on fire at turns in Britain and Libya and even in these United States, and truthfully, if just for this moment, all I can think about is the beer I made and how I can finally drink it next Saturday.

If I’m being honest, it’s because it’s hard to care sometimes.

It’s an exhausting exercise, watching freedoms slip away, watching reason and common sense defeated by ham-handed pathos, seeing neighbor fight tooth and nail to take liberty away from neighbor.  It gets to feeling like the road to serfdom is a death march, a chain gang.

All isn’t lost, of course.  And really, you’re not here for melodramatic soliloquy, anyway.

Which is why this is one of those rare moments when I’m happy to stop ranting and appreciate a genuinely happy thing — because it’s worth remembering why fighting for liberty and freedom is a thing worth doing…

Cory Maye is free.  After ten years in prison and a death sentence, a man is free to see his family.  Perhaps against all odds, a journalist fought against racism, government power, and the War on Drugs and helped bring a man home after ten long years.

When Cory Maye rises up to speak before the 75 or so people who have gathered to welcome him home from prison, his eyes well up, his head drops, and he stammers. He rubs the bridge of his nose, and he cries. His chief lawyer, the burly and bearded Bob Evans, puts a beefy arm around Maye’s shoulder and pulls him in.

“I think you’ve just said all there is to be said, son,” Evans says.

It’s just one story against a whole backdrop of cases that never see the justice they deserve.  You needn’t look any further than Reason Magazine’s July issue for that to be painfully clear.

But it’s a moment that needs no melodramatic soliloquy.  And it’s a reason to keep writing.

Because it’s not about winning against the system, about convincing the masses and freeing the wrongly convicted in a sweeping movement.  It’s about individual choices, about free will, about finding those ways that we can make a difference.

My sister declared with finality that she was a libertarian this week.  She’d been reading about the government crackdown on raw milk producers and was appalled at the government’s need to decide for us what is best for us.  “Let me choose!” she wrote as she explained her choice.

And I don’t mean to do a disservice to anyone by correlating Cory Maye’s story to raw milk, but at the heart of it is the same message and the same fight: as long as we hand over our right to choose, no matter what precipitates that desire — be it wanting to save people from the drugs we don’t want them to take or the milk we don’t want them to drink — we put ourselves in front of the barrel of the government’s gun and hope it doesn’t go off in our faces.

They Have Their Exits and Entrances

The discussion boards I’ve had to use throughout my Master’s program have been endlessly fascinating.  They’re almost always apolitical — after all, colliding the worlds of Oracle SQL or Microsoft SQL server and political theory isn’t particularly easy — with rare exceptions.

In my Application Security class, this week’s discussion is about the “scourge” of bad software coming from overseas and what might be done about it. The contention being that without intervention, bad software might flood our markets, causing, in the words of a classmate, “small irritations that on my iTouch, the cover of the audible book does not match the actual book to a Toyota software bug that causes my Prius brakes to fail.”

She goes on to say:

Software applications control my diabetic son’s insulin pump that he needs to stay not only alive but healthy so that he can go to college next month. Software applications control my banking which wouldn’t make anyone very rich but would devastate us if our money was stolen. Software applications run the ticket distribution of the World Series, Super Bowl, World Cup  and cause riots when the systems fail.

The point my classmate made was ultimately that she “believe[s] strongly that the ‘bad’ practices and software applications need fixing!”

Now I’ll grant you, it wouldn’t be fair of me to infer that my classmate was demanding government intervention.  She didn’t finish her post by demanding that the government pass a bill that specifically sets standards for application security.  And as such, I think my biggest beef is the prompt, the notion that there are things in this world that demand something be done.

Whether you’re talking application security or national security, doing “something” because people demand it is security theater, the fever-delusion of believing that running around looking busy makes people safer in anything other than name.

All of which is to bring you this heartbreaking and terrible reminder of just what security theater actually means:

If we cannot prevent an event like Utøya, the worst killing spree ever in world history and the worst terrorist act in entire Europe in two decades, by any means conceivable — why are we playing this security theater and giving up hard-won civil liberties one after another?

The only thing that would have caught Breivik would have been frequent police raids turning his farm inside out, leaving no room to hide his experiments in chemistry. Turning all industries and homes inside out with sharp regularity might have prevented this. Even still, a person as determined as Breivik would likely have been able to blend in even under such circumstances.

Benjamin Franklin famously said, that “a people who gives up its freedom to gain a little security will lose both and deserve neither”. But now that it has been shown in the most gruesome, in-your-face way that we don’t even gain a little security by giving up these freedoms, then why are we doing so?

At its most benign, “security theater” means expensive, incomplete security which leaves all parties exposed without knowing it.  When government takes up the yoke of security theater, that expensive, incomplete mess comes with the additional price of rending our civil liberties asunder.

No matter its intentions or its well-meaning missions, government cannot hide us from the creeping specter of death.  We are never terribly long for this earth, no matter how many civil liberties we sacrifice.  People will always aim to maim and terrify and torture and hurt and, really, that leaves us with a tremendous choice: we can choose to accept the gifts of life and liberty and the ability to pursue what makes us happy and embrace those gifts to the fullest…or we can hand them away in hopes that we can delay the unavoidable end for a moment longer.

Jack M. Balkin Still Doesn’t Understand The Constitution

One of the most-visited posts on these localized interwebs is my original post about the Commerce Clause, in which James Madison — author of the Commerce Clause — says that Jack M. Balkin, J.D., Ph. D doesn’t understand the Constitution.  In fact, if you Google “Jack M. Balkin J.D. Ph.D” that post still comes up near the top.

This is one of my life’s most important accomplishments.

And really, I considered that matter resolved.  Jack M. Balkin made a hilariously uninformed comment about the Constitution and I laughed at him online.  Water under the proverbial bridge.

So color me surprised that Jack M. Balkin, J.D., Ph. D is back in the news making a mockery of Yale Law School once again.

This go around, Jack M. Balkin, J.D., Ph. D has prostituted himself for the cause of President Obama’s debt ceiling powers, saying (originally in the New York Times, but then in this poorly-researched tripe):

The words of the provision are in important ways quite vague. “Nobody would argue,” said Sanford Levinson, a law professor at the University of Texas, “that Section 4 is clear in its meaning, other than at the time everyone thought that the South, if they ever got back in control, would not pay Civil War debt.”

But Jack M. Balkin, a law professor at Yale, said it was possible to infer a broader principle.

“You’re not supposed to hold the validity of the public debt hostage to achieve political ends,” Mr. Balkin said. He added, though, that “Section 4 is a fail-safe that only comes into operation when everything else is exhausted.”

Surely, the 14th Amendment must be ambiguous for Jack M. Balkin, J.D., Ph. D. to see in it every power of the party he supports…right?  Take it away, actual relevant  text of the 14th Amendment!

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Jack M. Balkin, J.D., Ph. D, who wants you to take him seriously, really, thinks that this somehow overrides earlier parts of the Constitution.

Specifically:

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Article 1, Section 7, Clause 1, Jack.

The Congress shall have Power…To borrow Money on the credit of the United States;

Article 1, Section 8, Clause 2, Mr. Balkin.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

Article 1, Section 9, Clause 7, Jackie.

(Because Googling is hard. I give Jack M. Balkin, J.D., Ph. D the actual text of the Constitution.)

Jack M. Balkin, J.D., Ph. D. would have you believe that the 14th Amendment gives his President some new, mystical power to do what Jack wants him to do.  He’d have you believe that the 14th Amendment does whatever the crap he wants it to instead of, y’know, what it says: eliminates the debt incurred by the Confederate states during the Civil War. He’d have you believe that the 14th Amendment approaches in any possible way the idea that the House is no longer in charge of budgets simply because Jack M. Balkin, J.D., Ph. D. doesn’t like the budget they’re proposing.

Jack M. Balkin still doesn’t understand the Constitution.