Monthly Archives: October 2017

Op-Eds

Microsoft Corp. v. United States: Jeff Sessions Wants Open Borders, But Only for Police

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On October 16, Morgan Chalfant of The Hill reports,  the US Supreme Court agreed to  hear the Justice Department’s appeal  in Microsoft Corp. v. United States.  The question before the court: Are search warrants issued by American courts valid abroad?

In 2013, Microsoft refused to turn information from a customer’s email account over to law enforcement pursuant to a warrant in a narcotics investigation. The information, Microsoft noted, was stored on a server in Ireland. Ireland, as you may have learned in elementary school, is neither one of the fifty states nor a US territory.  It’s a sovereign state with its own laws. US search warrants carry no weight there.

A three-judge panel of the US Court of Appeals for the Second Circuit sided with Microsoft, and the full court denied the government’s request for a rehearing. Apparently they learned geography as youngsters, too.

US Attorney General Jeff Sessions, maybe not so much. But he does seem to have a perpetual burr under his fur about “national sovereignty.” Sessions is on record criticizing both “illegal immigration” (under the US Constitution there’s no such thing) and the Trans-Pacific Partnership trade agreement as attacks on US sovereignty. So why is the Justice Department he leads seeking a declaration from the US Supreme Court  that US search warrants override the sovereignty of Ireland? American exceptionalism much?

Hopefully the court will uphold the Second Circuit’s decision and make it clear to Sessions that the whole border/sovereignty thing goes in both directions.

But the tech sector and individuals who value their privacy shouldn’t just sit still and hope for the best. What we need is a the continued erosion of “national” borders and the perfection of individual borders that are, as a practical workaday matter, mostly impenetrable to people like Jeff Sessions. While the former may take some time yet, the latter are already partially available and the unavailable part represents opportunity for reasonably entrepreneurial “sovereign states.”

The available part, as you might guess, consists of strong encryption. The sooner Microsoft and other email and data storage providers implement well-crafted end-to-end encryption for their users — encryption the providers do not hold the keys to — the sooner the data in question will become useless to the Jeff Sessionses of the world. “Oh, you have a warrant? OK, fine, here’s what you asked for. Good luck reading it.”

The unavailable part consists of (hopefully more than one) “data haven” states: Countries whose governments are willing to write strong data privacy and freedom protections into their laws, believably commit to sticking with those protections, then stand back and watch as Microsoft, Google, Facebook, et al. build huge data centers and perhaps even decide to re-domicile themselves (presumably paying lots and lots of taxes in both cases).

Sometimes the Supreme Court gets things right, but it’s definitely an imperfect and untrustworthy vessel to entrust with the protection of our privacy and our rights. Better to take those rights into our own hands with encryption, and decentralize their protection across friendly sovereignties.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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Excessive: Bail Isn’t Meant to Enable the Holding of Political Prisoners

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The US Constitution’s Eighth Amendment forbids “excessive bail” in criminal prosecutions. That prohibition seems somewhat vague. I guess we’re just expected to know excessive bail when we see it. Two current cases demonstrate not just excessive bail, but abuse of the whole idea of bail for the purpose of holding un-convicted defendants as political prisoners.

In August, podcaster Christopher Cantwell of Keene, New Hampshire traveled to Charlottesville, Virginia to join his fellow white nationalists in a violent race riot. Cantwell ended up as the central figure in a Vice documentary on the event — and under arrest for felony assault.

Cantwell’s bail was initially set at $25,000, but on appeal from the prosecutor it was revoked entirely and Cantwell was slapped into solitary confinement (“protective custody”) at the Albemarle County jail until his trial, scheduled for November. Why the sudden turnabout? The prosecutor claimed that Cantwell a) was a flight risk, and b) had evil political views.

Cantwell was clearly not a flight risk. He turned himself in on demand, having stayed in Virginia and in touch with police in anticipation of doing so once he heard rumors of a warrant for his arrest. And Cantwell’s political views should under no circumstances have been treated as relevant to bail. The purpose of bail is to incentivize a defendant to appear at trial, full stop.

Meanwhile in Georgia, Reality Leigh Winner languishes in the Lincoln County jail, also denied bail since her June arrest for “removing classified material from a government facility and mailing it to a news outlet.”

The initial bail denial was premised on the possibility that she might have taken, and might disclose, more classified information. But in a second bail hearing, as in Cantwell’s case, the judge’s denial of bail was obviously conditioned solely on the content of Winner’s supposed political beliefs.

Winner was not a significant flight risk. She had no criminal record, her passport had been confiscated, and her mother had offered to move to Georgia to act as her pre-trial custodian. The prosecutor’s only real argument for denying bail was the claim that Winner’s admitted admiration for fellow whistle-blowers Edward Snowden and Julian Assange indicated “contempt for our country and our security.” The judge bought that argument.

Again: The sole legitimate purpose of bail is to ensure that the defendant shows up for trial so as to not forfeit some significant amount of money or property.

Conditioning bail on the defendant’s political beliefs — or, worse, denying it entirely over those beliefs — is by definition “excessive.” Judges who commit such violations of the Eighth Amendment in particular and of due process in general should be removed from the bench — and possibly given a taste of confinement themselves.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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Op-Eds

Take a Knee. Take a Seat. Take a Chill Pill.

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English: American students pledging to the fla...
American students pledging to the flag in a former form of the salute, specifically the Bellamy salute . (Photo credit: Wikipedia)

“Wouldn’t you love to see one of these NFL owners,” US president Donald Trump thundered from the stage of a September campaign rally, “when somebody disrespects our flag, to say, ‘Get that son of a bitch off the field right now, out. He’s fired. He’s fired!'”

Many seem to agree that professional football games are no place for political statements. Well, at least they agree now. I don’t recall a peep from them for nearly a decade of the US government shelling out millions of dollars to turn professional football games into combination political statements and military recruitment rallies.

Meanwhile, the Houston Chronicle reports, a Texas high school student has been expelled for sitting through morning prayers to the god called government, also known as “the Pledge of Allegiance.”

C’mon, people — relax!

Is it truly important that someone you don’t know didn’t assume your preferred bodily posture while a song you like was played?

Is it the end of the world that a high school student doesn’t practice the same (secular) religion as you?

I was brought up to respect the flag. The Marine Corps reinforced that tendency. A 48-star flag adorned my grandfather’s casket (he served in the navy in World War Two). A 50-star flag just may cover mine one of these days. My personal politics notwithstanding, I’m a little bit attached to its symbolism.

But at the end of the day, the flag is a piece of cloth that some people don’t attach positive, let alone reverent, feelings to. The cry that some people “died for” it is, frankly, disrespectful to those people and whatever their real reasons were for taking up arms beneath it.

The national anthem is a song that glorifies the killing of rebellious slaves, some of whose descendants are likely among those criticized for failing to stand while it’s played (ask the grandchild of an Auschwitz survivor to stand for the Deutschlandlied and see how he or she responds).

And the “Pledge of Allegiance” was written by a flag salesman to, you guessed it, boost his flagging sales numbers (sorry, couldn’t help myself there).

If it bothers you to the point of distraction that some people are, by your lights, insufficiently respectful of the Stars and Stripes, your priorities are way out of whack. And if the flag does indeed stand for freedom, you’re part of the problem, not part of the solution.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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