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Thomas Mitchell
'We may wake up and find we're living in Oceania'
"We are the dead," he said.
"We are the dead," echoed Julia dutifully.
"You are the dead," said an iron voice behind them.
They sprang apart. Winston's entrails seemed to have turned into ice.
"It was behind the picture," breathed Julia.
-- excerpt from "1984," by George Orwell
In the preface of the 1983 paperback edition of Orwell's classic, Walter Cronkite writes, "It has been said that '1984' fails as a prophecy because it succeeded as a warning -- Orwell's terrible vision has been averted. Well, that kind of self-congratulation is, to say the least, premature. 1984 may not arrive on time, but there's always 1985."
A case involving police sneaking onto a suspect's private driveway and, without a warrant, attaching a GPS tracking device to his car, recently passed constitutional muster with the 9th U.S. Circuit Court of Appeals in San Francisco. Chief Judge Alex Kozinski failed to persuade his fellow jurists to rehear the matter. The motion for an en banc hearing was denied.
"The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory," Kozinski wrote in his dissent. "1984 may have come a bit later than predicted, but it's here at last."
Technology is taking a battering ram to the Fourth Amendment, which dictates we should be secure in our "persons, houses, papers, and effects, against unreasonable searches and seizures "
In the 1920s, the courts ruled the testimony of two officers, who trespassed on a defendant's land, concealed themselves 100 yards away from his house and saw him come out and hand a bottle of whiskey to another, was inadmissible in court. They violated the Fourth.
But the court ruled someone who installs in his house a "telephone instrument with connecting wires intends to project his voice to those quite outside, and that the wires beyond his house, and messages while passing over them, are not within the protection of the Fourth Amendment. Here those who intercepted the projected voices were not in the house of either party to the conversation."
Congress changed that, fortunately. Now Congress and the courts are dealing with still more technology changes.
The Obama administration plans next year to introduce legislation that would require all Internet service providers -- from BlackBerry to Facebook to Skype to whatever -- to make it possible for law enforcement to intercept and unscramble encrypted messages.
In a New York Times article this past week, critics of the proposed law warned that it could create holes in security that could be exploited by hackers. The article quoted a computer science professor who said it has already happened in Greece, which has such a law. Hackers were able to eavesdrop on the country's prime minister by using law enforcement's "back door" entry.
That cell phone you carry is already being targeted by law enforcement, because it either contains a GPS device or can be tracked by cell phone towers off of which it bounces signals. A February Newsweek article reported police were able to find murder suspects by determining whose cell phone was near the murder, and narcotics agents followed a drug shipment as the driver's cell phone "shook hands" with each cell phone tower it passed.
The story said cell phone information requests have become so frequent that one company simply created a website where law enforcement can access data without issuing constant subpoenas to the company.
Judge Kozinski pointed out the Big Brother aspect of the technology that is eerily evocative of the novel, "By tracking and recording the movements of millions of individuals the government can use computers to detect patterns and develop suspicions. It can also learn a great deal about us because where we go says much about who we are. Are Winston and Julia's cell phones together near a hotel a bit too often?"
The judge concluded his call for a rehearing of the GPS case by the full court with these words:
"There is something creepy and un-American about such clandestine and underhanded behavior. To those of us who have lived under a totalitarian regime (Kozinski was born in Romania), there is an eerie feeling of déjà vu. This case, if any, deserves the comprehensive, mature and diverse consideration that an en banc panel can provide. We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Some day, soon, we may wake up and find we're living in Oceania."
Thomas Mitchell is editor of the Review-Journal and writes about the role of the press and constitutional issues. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com. Read his blog at lvrj.com/blogs/mitchell.
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Seriously nypete, Does it matter what the RJ's position was under Bush on warrantless wiretaps? No sooner was Obama in office than he'd reinforced the Patriot Act as We his (once) astonished supporters looked on. His defense went something like 'Now that I'm here I get it'. His administration's current argument to prevent encryption 'for security' is as disingenuous as was his campaign promise to roll back Bush's privacy encroachments, before giving the Patriot Act a shot in the arm once in office. If you've ever had your civil & privacy rights repeatedly savaged, (Reid is endorsed by our Police Protective Unions), a Partisan fight to salvage our 4th amendment now is an Absurd Luxury. A time waster at zero hour. Kozinzki's been there and hits that alarm dead-on in his call for a rehearing. BO's being called out by the NY Times on the danger in this legislation further nails it as ominous. No time for Parties: here's a do-or-die. BO's slipping such a final bill in as he slithers out the door should remind us of what he said versus what he did. No agent for change; simply a torch bearer for Bush's worst policies. Send him home to Chicago without this legislation as (one of) his last betrayals of our trust. And our rights.
to "liberalslie": (love the handle!) -- had the Bush/Cheney wiretaps been presented as an amendment to existing legislation and put up for a vote by the people's representatives in Congress, I likely would have supported it. But it wasn't. The warrantless wiretaps were performed secretly, under a theory that placed the President totally above the law.
So there is nothing hypocritical about my position. And the distinction still stands.
Things have been bad in the past but now the national socialists and communists are now supporters of the direction the current administration is taking our country. They were among the rally in Washington yesterday. We can hope they don't get a further foothold.
Of course not, nypeter. You see nothing at all wrong with this- unless Bush were to do it. Then is would be a power-hungry Nazi rushing us head-long into Fascism. Why are lying liberals such hypocrites? Why do you hate Liberty, the Constitution, and America?
http://www.lvrj.com/opinion/25662739.html
@ Mark.Anthem: If we could only trust people to do the right thing, and live their own lives and mind their own business, then I would agree with you. As, for that matter, I would agree with Rand Paul that we should be able to leave it up to the individual conscience not to racially discriminate. But I do not believe we can. There will always be predatory, amoral individuals who believe that they have the right to take whatever they want from others, and define it as protecting themselves. Study the character named Thrasymachus, in Plato's Republic, for an example of someone who believes that justice means the stronger taking whatever they want. 2500 years ago!
1. to "Mark.Antham": funny
2. worth noting that that current proposals are simply for a law to extend wiretap capabilities to new technologies. Just as the government needs a court-ordered warrant to tap someone's phone line, they would need a similar warrant to tap someone's Skype account. I am not sure what is so terrible about that. And I don't know what is tyrannical about a law, proposed by our elected executive branch, deliberated upon and enacted by our elected representatives, and reviewed for constitutionality by the judiciary. Perhaps these proposals are good, perhaps not. But to compare this process to a neo-Stalinist dystopia, as Mr. Mitchell does, is crazy.
3. As I noted before, these ideas are completely different from the Bush administration's practices of secretly wiretapping the communications of American citizens without a search warrant. Can someone find me an editorial from this newspaper that criticized that practice, let alone suggested that it would turn America into "Oceana"?
Well, pete, it must not be bad if the Bush Administration started some tyranny. Just like to Democrats it's not bad if Obama extends that tyranny.
O, how partisan man can be!
But . . .
It's all in the name of SAFETY you know!
We'll all be safer if the food nazis ban fats and sodas and sugar. We'll be safer if they ban smoking in all structures. We'll be safer if we soon need a permit to spend cash.
All in the name of safety.
Mark.Anthem wrote on October 03, 2010 03:21 AM:
To have no privacy, and no private property, is to be a savage. To name one outrage, what could be more unsafe than to be forced to carry a photo ID of yourself with your current address on it, and drive around in a vehicle with a license plate on it, and have to dial a phone to call someone to protect you, instead of being allowed to carry self-defense tools on your person. The problem isn't big brother, its the losers who look to him for answers and solutions instead of living their own lives.
Well put.