Reader Supported News | 14 March 16 AM
Marc Ash | Encryption: The Precedent Is the Voting Rights Act 
Marc Ash, Reader Supported News Ash writes: "FBI v Apple is not just an isolated case or an attempt by the government to target one device, or even the world's leading technology company, it's actually quite a bit bigger than that." READ MORE
an, should law enforcement be able to look anywhere, search anything to solve or prevent a serious crime?
Almost any judge in America would rule yes. U.S. District Court Magistrate Sheri Pym did. Or at least she thought she did. What she really ruled was a bit different, more complicated, and at least for the moment more legally contentious.
However ultimately the future of data encryption, and with it digital privacy in the U.S., will come down to two simple questions: “What reasonable tools and powers should law enforcement be allowed in the pursuit of public safety.” And of equal importance, “What reasonable privacy protections are users of electronic devices entitled to?”
Right now the centerpiece of the government’s case against Apple is the “All Writs Act,” (AWA) a component of the
Judiciary Act of 1789. A good breakdown of the AWA and how it
might apply to the government’s case against Apple is available in the form of an
audio lecture by Stanford University’s Jonathan Mayer. As Mayer points out, the law is remarkably broad and, having been written in the 18th century, unproven in this application.
Apple’s defenses seem to be coalescing around the First Amendment, and their counter argument is that being asked to author a digital operating system tailored to federal law enforcement’s current objectives creates an unreasonable burden. But the AWA was never intended to address or even envision complex 21st century digital-era law. So there’s a square peg, round hole problem on many levels.
FBI v Apple is not just an isolated case or an attempt by the government to target one device, or even the world’s leading technology company, it’s actually quite a bit bigger than that. Enter Edward Snowden and his cache of documents.
What the Snowden documents reveal, actually confirm, is a much larger effort by the U.S. government’s law enforcement and security players to convert personal computing into the most invasive form of private citizen monitoring the world has ever known. More to the point, according to the documents, they have already succeeded. Encryption really functions as an antibody, a challenge to the U.S. government’s vast “Total Information Awareness” process.
It is the pattern of abuse that draws on the Voting Rights Act for precedent. What Congress said in the VRA, among other things, was that there was a pattern of abuse of voting rights specifically targeting minorities in specific states and jurisdictions. Further, congressional lawmakers asserted that a legal remedy was required to offset the pattern of abuse in the affected jurisdictions. The key takeaway there is a documented, systemic pattern as establishing cause for legal remedy.
What the Snowden documents did was illustrate a massive pattern of civil rights abuse by the NSA and federal law enforcement on a scope affecting the vast majority of Americans. Not only did the Snowden documents establish, in many cases for the first time, that these abuses were taking place, but they confirmed accusations and reports by civil liberties experts that the abuses had been taking place for years.
The civil rights that were denied Americans affected by the government’s excesses were specifically those guaranteed under the Fourth Amendment. By using a catch-all rationale and broad self-granted authorities, the NSA and participating federal law enforcement agencies trampled upon the Fourth Amendment protections, according to the documents placed in the public record by Snowden, of practically every American who uses an electronic computing or communication device or financial instrument. The scope is staggering.
Applying the VRA standard, the actions of the NSA and associated federal law enforcement agencies, as illustrated by the Snowden documents, are pernicious, persistent violations of the civil rights of every American affected.
Against that backdrop, consumer personal encryption is not only a reasonable remedy but, until the government can demonstrate conclusively that the violations have ceased, a necessity and a right.
Marc Ash is the founder and former Executive Director of Truthout, and is now founder and Editor of Reader Supported News.
Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News.
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Justice Department Warns Local Courts About Unlawful Fines and Fees Matt Zapotosky, The Washington Post Zapotosky writes: "The Justice Department is asking local courts across the country to be wary of how they slap poor defendants with fines and fees to fill their jurisdictions' coffers, warning that such practices often run afoul of the U.S. Constitution and have serious real-world consequences." READ MORE
Members of the Missouri National Guard stand outside of the Ferguson Police Department
and the Municipal Court in 2014. A Justice Department investigation found patterns of racial
bias in the Ferguson police department and at the municipal jail and court.
(photo: Jeff Roberson/AP)
he Justice Department is asking local courts across the country to be wary of how they slap poor defendants with fines and fees to fill their jurisdictions’ coffers, warning that such practices often run afoul of the U.S. Constitution and have serious real-world consequences.
In a letter that will be sent Monday morning to the chief judges and court administrators in all 50 states, Vanita Gupta, the head of the department’s Civil Rights Division, and Lisa Foster, director of the Office for Access to Justice, wrote that illegal enforcement of fines and fees had been receiving increased attention in recent years, and the Justice Department had a “strong interest” in making sure the rights of citizens were protected.
“Individuals may confront escalating debt; face repeated, unnecessary incarceration for nonpayment despite posing no danger to the community; lose their jobs; and become trapped in cycles of poverty that can be nearly impossible to escape,” Gupta and Foster wrote. “Furthermore, in addition to being unlawful, to the extent that these practices are geared not toward addressing public safety, but rather toward raising revenue, they can cast doubt on the impartiality of the tribunal and erode trust between local governments and their constituents.”
The letter begins with the phrase “Dear Colleague,” and it does not threaten any specific enforcement action for those who ignore it. Officials said, however, it is an indication that the Justice Department is stepping up its efforts on the problem of local court fines and fees. Department officials will also announce Monday that they are making $2.5 million in grant funding available for jurisdictions with plans to “test strategies to restructure the assessment and enforcement of fines and fees.”
“We believe strongly the Constitution needs to be upheld in every court in every place in the United States, so we’re trying to help make sure that comes to pass,” Foster said in an interview.
The financial penalties — typically for minor misdemeanors, traffic infractions or violations of city code — disproportionately affect the poor, who cannot afford to pay immediately are then hit with arrest warrants or additional penalties.
The Washington Post’s Radley Balko published a
lengthy investigation of municipalities’ practices in St. Louis County in 2014, finding that some towns there derived derive 40 percent or more of their annual revenue from the petty fines and fees collected by their municipal courts. Justice Department officials said they have seen similar problems in many other states.
“It varies from state to state about how severe the problem is, but the problem is everywhere,” Foster said.
The letter details seven principles that Gupta and Foster say court personnel should be aware of when imposing fines and fees. The officials wrote that courts should not jail people for nonpayment of fines and fees without first determining whether the non-payer was indigent and then establishing that the failure to pay was “willful.” They wrote that courts should consider alternatives to jail for indigent defendants; they must not use arrest warrants or license suspensions to coerce payments without giving defendants their rightful constitutional protections; and they must not use bail practices that leave poor people jailed “solely because they cannot afford to pay for their release.”
The officials wrote that courts should not require prepayment as a condition for a judicial hearing; they must provide meaningful notice and — in some cases — lawyers for those facing fines and fees; and they must “safeguard against unconstitutional practices by court staff and private contractors,” who are often left enforcing fines and fees because judges devote only a few hours to it on their crowded dockets.
“We urge you to review court rules and procedures within your jurisdiction to ensure that they comply with due process, equal protection, and sound public policy,” Gupta and Foster wrote.
The Justice Department could turn to more heavy-handed tactics, such as withholding grant money from jurisdictions with unconstitutional practices or filing lawsuits or criminal cases. The letter does not threaten any such action, but it notes that courts receiving federal funds might be violating the Civil Rights Act when their practices “unnecessarily impose disparate harm on the basis of race or national origin.”
Gupta said the letter is intended to “articulate a set of principles” that address a wide range of state and local court practices and to spark conversations that might lead to reform. She and Foster said some problems can become ingrained in court systems over time, as leaders do not stop to consider the broader constitutional issues.
“This is a serious problem that needs to be addressed, and our expectation is that’s what’s going to happen,” Foster said. “Hopefully, there will be no need to do anything else than be a good partner.”
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ea Shepherd Conservation Society has vowed to increase night patrols of the Vaquita Refuge in the Gulf of California after two endangered species were found dead this weekend—a presumed result of illegal fishing activity in the area.
