The Murfreesboro Mosque: Our Fears Realized

August 29th, 2010 § 1

Just as I feared, the anti-Muslim fomenting of Newt Gingrich and others has already incited hatred nationwide that has resulted in the arson of a planned Islamic center in Murfreesboro, Tennessee.  Glenn Greenwald has an insightful post about this tragedy here that highlights relevant background information such as Tennessee Lt. Gov. Ron Rasmey’s unjustifiable beliefs about the threat of Sharia law supplanting the Constitution around the country.  As Greenwald points out, the threat to our nation is not American citizens of the Islamic faith; it is American citizens intolerant of anyone with beliefs that differ from theirs who have been driven into a frenzied rage by the statements of Newt Gingrich and other respected political figures to the effect of, “There’s no reason for us to accept a mosque next to [insert your neighborhood here].”  When these statements are made by those with full knowledge that our Constitution protects these citizens’ rights to worship, it shows a reckless disregard for one of our country’s founding principles, famously stated by John Adams: We have “a government of laws and not of men.”  The result, vigilante acts attempting to impose the primacy of one religious class over another, was as clear to Newt Gingrich when he made those comments as it is today as Mosques and Qurans burn across the country.

The irony of all of this is not lost on me.  Here I am, arguing not that respected political figures should be barred from making such statements, but that they should refrain from doing so because they might, and indeed have, incite unnecessary violence.  This is the exact argument being made by those who oppose the construction of the Times Square mosque.  However, the fundamental difference in my mind is the intent of each party and the impact of their respective actions.   » Read the rest of this entry «

The Ground Zero Mosque: What Is There To Debate?

August 17th, 2010 § 2

I don’t understand why all the talk about the construction of an Islamic center near ground zero is being framed as though there is something to debate.  There isn’t.  The Free Exercise clause of the First Amendment prohibits any governmental entity from blocking the construction of this place of worship.  There is no question; this is certain.  Why, then, are people like Newt Gingrich coming out and making claims like this:

Nazis don’t have the right to put up a sign next to the Holocaust Museum in Washington.  We would never accept the Japanese putting up a site next to Pearl Harbor. There’s no reason for us to accept a mosque next to the World Trade Center.

Newt Gingrich is a very intelligent man.  He holds a doctorate in European history.  He knows more than your average bear about the way our government functions.  What would compel a man of such stature to make a statement that is so blatantly false?  Newt Gingrich knows that he isn’t fooling you and me.  But I suspect Newt Gingrich also knows that he is absolutely fooling a large number of American citizens who aren’t well enough informed to see through his mischaracterizing the issue.  Let’s go to the play-by-play to break this one down. » Read the rest of this entry «

The Imperative of an Informed Citizenry

July 24th, 2010 § 0

Thomas Jefferson once wrote:

If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.  The functionaries of every government have propensities to command at will the liberty and property of their constituents.  There is no safe deposit for these but with the people themselves; nor can they be safe with them without information.

This admonition was imperative to sustain the ideals upon which our country was founded when Jefferson wrote these words at a time that marked the twilight of the founding fathers’ generation and the infancy of our nation.  Jefferson was primarily concerned with maintaining a free press and eradicating illiteracy when he wrote this, and in this modern age we have certainly taken heed of his warning in these respects.  But that is not to say that his words carry any less meaning for our generation.  Today we are plagued by a threat to our liberty that is every bit as dangerous as those of Jefferson’s time, but it is a plague that each of us has the ability to cure.  The threat is our own apathy.

I encourage anyone reading this who takes Jefferson’s warning seriously to please find the time to read The Washington Post‘s “Top Secret America.“

If I could extract only one sentence from the wealth of information compiled in this multi-part exposé to vivify Thomas Jefferson’s words for our generation, it would be this:

Every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications.

Pay attention.  Stay informed.  Find the time.  This is the responsibility that comes with our freedom.

The Sixth Amendment Right to Counsel in Magistrate Court

July 16th, 2010 § 0

In the comments section of Bobby Frederick’s recent post over at South Carolina Criminal Defense Blog about the increased dollar value for property crimes contained in the amending provisions of S1154, we got into a discussion about S1154′s expansion of the jurisdiction of magistrate and municipal courts that bears repeating here in more detail.   Several provisions in the Act authorize magistrates to hear criminal cases that, despite being categorized as misdemeanors, carry sentences of up to three years.  For example, the amended statute for forgery now provides:

If the forgery does not involve a dollar amount, the person is guilty of a misdemeanor under the jurisdiction of the magistrates or municipal court, notwithstanding the provisions of Sections 22-3-540, 22-3-545, 22-3-550, and 14-25-65, and, upon conviction, must be fined in the discretion of the court or imprisoned not more than three years, or both.

Allowing magistrates, who in South Carolina are not required to have a law degree, to deprive citizens of their liberty for 30 or 90 day sentences is considered to be an imperfect necessity, but to bestow magistrates with the ability to incarcerate a person for three years raises more serious concern.  While this necessity may be debatable, the constitutionality of our state’s failure to promptly appoint counsel to defend those tried in magistrate court is not.  To understand the issue, it is necessary to examine a line of Supreme Court cases beginning with Argersinger v. Hamlin, 407 U.S. 25 (1972), and continuing most recently with Rothgery v. Gillespie County, 554 U.S. ___ (2008).   » Read the rest of this entry «

Boilerplate Legislative Drafting: The S.1154 Savings Clause

July 6th, 2010 § 0

S.1154, known as the Omnibus Crime Reduction and Sentencing Reform Act of 2010, is the product of a monumental effort by the South Carolina legislature to employ evidence-based practices in order to get smart on crime and curb unsustainable levels of mass incarceration that our cash-strapped state can hardly afford.  S.1154 is commendable as a bipartisan effort to legislate on the basis of comprehensive data to reach a much-needed result that nevertheless might be unpopular with the traditional “tough on crime” base.   S.1154 exemplifies the best of the legislative process.  There’s just one problem: Nobody knows how it’s supposed to work.

The confusion, recently pointed out by Bobby Frederick over at South Carolina Criminal Defense Blog, is with S.1154′s savings clause.  Because it is drafted in broad terms that reach far beyond S.1154′s content to cover several irrelevant scenarios, the clause is a bit vague about how the act should be applied to cases coming down the pipe.  Its language suggests it should be applied prospectively, but the caselaw sends mixed signals and contradictory sections within the act further compound the confusion.  The text of the savings clause is as follows:

» Read the rest of this entry «

Hi! We noticed your interest in privacy!

June 16th, 2010 § 0

Over the past month or so, several stories have been making headlines that I’ve fully intended to write about.  Facebook’s privacy fiasco, Google’s collection of WiFi traffic, Department of Defense’s offer to monitor private networks, Apple’s iPad data breach, and ES&S’s E-Voting machines’ possible role in the highly suspect South Carolina Democratic primary are just a few issues I should have found time to cover if I intend to take this blog seriously.  (I don’t see how those on my Blawgroll are able to churn out as many posts as they do, but hopefully I’ll figure out their secret one day.)  However, something I recently received in the mail—though it certainly won’t be making any headlines—has driven me to write once again.

» Read the rest of this entry «

Forgetting Our Past in a Collective Memory

May 19th, 2010 § 0

This is the part where I write about whatever is on my mind for my own satisfaction.

Once again, Ars has put up a top shelf interview that gave me the itch to write.  The first of a two part interview about cloud computing covers a range of topics, but I’d like to comment on the notion of the cloud as a shared memory.  In the final exchange of the conversation between the interviewer and his subject, the two agree that, while the cloud pools humanity’s collective memory by serving as a permanent repository for all our combined knowledge, it concomitantly drains each individual of his or her cultural identity.  While the interconnectedness of what the average Netizen reads on a daily basis has grown exponentially, they explain that this interconnectedness has also shifted laterally.  The deep cultural heritage passed down through our masterful storytelling ability is being forgotten, erased by a preference to reference each other rather than remember our past as we spin new tales.  The two conclude that this leaves each of us less distinctive, presumably fading society’s cultural tapestry in the process; our end is cultural bankruptcy. Thus, as we increasingly come to rely on the availability of such an unfathomably deep ocean of knowledge as the cloud in our daily interactions, our own reservoirs of retained information begin to dry up. The Renaissance Man devolves into an oaf sitting with a glazed over stare in a baby pool of banality. » Read the rest of this entry «

Introspection at the Outset

May 4th, 2010 § 0

It seems rather fitting that just as I decide to launch a blog–one in which I intend to write largely about privacy–Congress introduces two bills that would regulate the information blogs and other websites can collect about their visitors.  The first was introduced two weeks ago and is reviewed at the Cato Institute’s blog, and the second will be unveiled tomorrow and is previewed over at the Wall Street Journal.  A draft of the bill to be introduced tomorrow contains a provision that would require a website to disclose to its visitors what information is gathered from them and would allow anyone the ability to opt out of such measures should they wish to remain anonymous.  The bill currently in the House goes even further and would allow anyone who presently has information displayed or stored on a site to issue a DMCA-type takedown notice.  This notice would require any site displaying such information to retroactively strip all content that user had previously posted and delete any personal data gathered by any other means.

Having just started this blog, » Read the rest of this entry «

The Constitution-less Cloud

April 27th, 2010 § 1

I’ve been meaning to get this blog off the ground for some time now, and this article over at Ars Technica (a must-read for anyone interested in law and technology) about the application of the Fourth Amendment to cloud computing finally gave me the motivation I needed. The article is a fantastic overview of many of the issues I intend to write about on this blog, and several issues raised are worth discussing.

The article correctly points out that the biggest obstacle facing the recognition of a Fourth Amendment right to privacy in the information we store in the cloud is what is known as the third party doctrine. In a case analogous to storing email, photos, and other personal information with service providers like Yahoo! and Google, the Supreme Court in Smith v. Maryland invoked the third party doctrine in declining to recognize a right to privacy in telephone numbers dialed and subsequently routed through a telephone service provider’s switching equipment. The Court reasoned that when a phone call is placed, the numbers dialed are “conveyed” to the telephone company. At that point, a reasonable person should recognize that those numbers will be monitored and recorded by the company’s equipment for billing and other purposes. Because a person voluntarily gives the phone company access to that information by utilizing its services, she cannot reasonably expect that information to remain private. It is important to point out, however, that the Court’s decision turned on the fact that the actual contents of the conversation were not monitored or recorded. Consequently, any expectation of privacy in the actual conversation would still be reasonable.

This is the problem facing communications and information stored in the cloud.  Under the Court’s precedent, information that a user should understand will be monitored by a third party renders an expectation of privacy in that information unreasonable, thereby excluding it from Fourth Amendment protection.   » Read the rest of this entry «