Thursday, June 26, 2014

Supreme Court's Decision on Cell Phone Searches Also Has Implications for NSA Mass Surveillance

"The fundamental reason for the conversion of the state into a gigantic spy apparatus is the nature of deeply destructive domestic and foreign policies which the government has so forcefully pursued. The vast expansion of the police state apparatus is not a response to the terror attack of 9/11. The geometrical growth of spies, secret police budgets, and the vast intrusion into all citizen communications coincides with the wars across the globe. The decisions to militarize US global policy requires vast budgetary re-allocation , slashing social spending to fund empire-building. 

Mass spying is designed to identify all citizens who oppose both imperial wars and destruction of domestic welfare." -  James Petras, in an August, 2012 article on American loss of civil liberties.

The Supreme Court's 9-0 decision yesterday,  declaring that any cell phone searches by cops (who stop motor vehicles)  requires individual warrants  should not have been any surprise to defenders of the Constitution and specifically 4th amendment rights.  That it was a victory for citizen privacy rights embodied in the 4th amendment is an understatement. Let us reprise and re-read that amendment again, which forms the cornerstone of what makes this nation different from all others:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Justices' unanimous, broadly written and emphatic decision vindicated this amendment and also laid waste to the Obama administration's ludicrous analogy that cell phones were "like wallets". Such constitutional deafness may also explain why the Obama-ites see no problem in NSA mass surveillance and why they regard Edward Snowden as a criminal instead of a whistleblowing patriot as most of us who respect the Constitution do.

I mean think about it,  for god's sake! Cell phones  - LIKE one's home computer - carry everything about a person' identity, life and transactions,, including: photographs, email, banking records, medical records. Why would grabbing a person's cell not be a violation of the 4th? Only a person or group blind to the amendment and what it states would be oblivious to that and regard it only like a "wallet" which has a few credit cards perhaps and an ID, but not the contents of one's personal life.

As Justice Roberts declared as part of his opinion:

"Sensitive personal information can form a revealing montage of a user's life and the same cannot be said of a photograph or two tucked inside a wallet"

Surely now, it can't be only me that sees ramifications to NSA mass surveillance on the indiscriminate scope revealed by Snowden. Specifically, in the same way cops can no longer  rummage through your cell phone on a de facto fishing expedition the NSA shouldn't be able to do the same with your computer (laptop, etc.) files...OR your cell phone.

In other words, if the Justices' ruling applies to over eager cops, it also needs to apply to an over eager NSA. They also need to obtain specific warrants as opposed to the 4th amendment violation mass warrants issued under a revised 2011 FISA law that debased and undermined the original.

The same arguments that apply with such force to cell phones, must also apply to any other devices that hold one's personal life profiles, including desktops, laptops, notebooks, smart phones etc.  Note, “secure in one’s person, house, papers, effects” implies PRIVACY! And it applies not only to your home but everything in it containing sensitive personal information. These are after all MY private papers, my private effects, my house, etc. If an inherent right to privacy under the 4th was a myth then being secure in one’s person, papers, effects wouldn’t matter.

Hell, the SC Justices could have ruled to let the whole freakin’ world see ‘em on anyone's cell! They didn't because they understood the language of the 4th is ironclad.  This is why in a fascist dictatorship “personal effects” don’t exist. “Personal papers” has no meaning. The state has full monopoly, de facto ownership on whatever the person has, even his own body. Hence, in fascist dictatorships, such as existed in Nazi Germany, all personal effects, papers could be seized by the Nazis on a whim or remote suspicion - under the Reich Laws. A fundamental right to privacy, meanwhile, insists there exist bona fide entities that one can uniquely own, e.g. papers, effects – including photos or what not- that are private. Without this fundamental right, then, “personal papers, effects” has no meaning hence the 4th amendment is meaningless.

Readers also might wish to recall or reference that one of the key outrages in the 1770s that led to the Revolutionary War (which my ancestor Conrad Brumbaugh fought in) was the British use of mass warrants.  They defied any concepts of "personal" and smashed into colonists' homes on any pretext- tearing it apart.   This applied to the infamous Writs of Assistance which was the vehicle used to justify smashing into homes to find smuggled goods. By the 1770s the use of the Writs of Assistance had become totally indiscriminate. As one academic site explained:

"Most notably, the writs allowed officials to enter and ransack private homes without proving probable cause for suspicion, a traditional prerequisite to a search."

This bears perfect analogy to what the NSA is getting away with today using the mass warrants and its PRISM, Xkeyscore and MUSCULAR programs.  Notes and letters gleaned from colonists of the time revealed total outrage and it is no exaggeration to say that it sparked the first shots of the Revolutionary War.

In writing the 4th amendment, the framers were motivated more than anything by the excesses of the Writs of Assistance.  This is why they deliberately singled out the need for authorities to obtain specific or individual warrants - mass warrants were anathema. The framers wanted no repeat of the outrages that launched the Revolution.

While no specific "right" to privacy is listed in the Bill of Rights,  it is clear the language of the 4th amendment shows that privacy is presumed hence the Founders saw no need to elaborate it as a separate right. Hence, use of the descriptor “personal” applied to papers, effects etc. and naturally meant private! Even if one for some reason disputed the argument, he’d still be left with the fact of the unenumerated rights under the Ninth amendment.  The Ninth Amendment states that “the people retain unenumerated rights” "The people:" here refers to flesh and blood citizens, not to a bunch of contractual abstractions (states), or to corporations. .As Prof. Garry Wills emphasizes and underscores (A Necessary Evil: A History Of American Distrust of Government’, Simon & Schuster, 1999, p. 108):

The states have no natural rights. Their powers are artificial, not natural – they are things made by contract.”

What we conclude then is the NSA mass surveillance,  and use of mass warrants,  discloses a rejection not only of citizens’ fundamental right to privacy but any right to be secure in one’s person, papers, effects.

The Justices' ruling on restricting seizure and grabbing of cell phones must therefore apply with equal force to personal information on any and all computers!   Justice Roberts, in a footnote, seemed to take issue with that, observing that “these  (cell phone) cases do not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.”  However, it is clear that rigorous adherence to the language of the 4th shows that it does. So that "aggregated accumulation and inspection of digital information" is really no different from the indiscriminate searches done under the British Writs of Assistance that led directly to the Revolutionary War!

Let us hope that the Right wing court soon gets on the same page, and its cell phone ruling is  formalized to another more sweeping judgment very soon!

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