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Posts Tagged ‘Fourth Amendment’

The Bill of Temporary Privileges

Posted by M. C. on September 23, 2022

By Andrew P. Napolitano

Today, if you call your cousin in London, the Foreign Intelligence Surveillance Court can authorize the NSA to spy on you. And if you then call your sister-in-law in Kansas, FISC can allow the NSA to spy on her and on the folks she calls and the folks they call.

Earlier in the summer, the Director of National Intelligence, the data-gathering and data-concealing arm of the American intelligence community masquerading as the head of it, revealed that in 2021, the FBI engaged in 3.4 million warrantless electronic searches of Americans. This is a direct and profound violation of the right to privacy in “persons, houses, papers, and effects” guaranteed by the Fourth Amendment.

For the past 60 years, the Supreme Court has characterized electronic surveillance as a search that can only be conducted pursuant to a warrant issued by a judge based on probable cause of crime, which itself must be presented under oath to the judge. The warrant must specifically describe the place to be searched and the person or thing to be seized.

By failing to comply with these constitutional requirements, the FBI violated the natural and constitutionally protected right to be left alone of millions of Americans.

Yet, all of this was perfectly lawful. How can government behavior be both lawful and unconstitutional at the same time and in the same respect?

Here is the backstory.

The Fourth Amendment was written in 1791 while memories of British soldiers searching colonial homes were still prevalent. The British used general warrants to justify their violation of colonists’ privacy. A general warrant was not based on probable cause of crime. It was generated whenever the British government persuaded a secret court in London that it needed something from foreign persons, the colonists. The British government did not even need to identify what it needed.

General warrants authorized the bearer to search wherever he pleased and to seize whatever he found. The Fourth Amendment was written expressly to outlaw general warrants and warrantless searches.

After President Richard Nixon used the FBI and the CIA to spy on his political opponents, Congress enacted the Foreign Intelligence Surveillance Act of 1978, which prohibited warrantless domestic surveillance. Since the Fourth Amendment did so already, the prohibition was superfluous.

It was also toothless, as the new law set up a secret court — the FISA court — which issued surveillance warrants based not on probable cause of crime as the Fourth Amendment requires, but on probable cause of communicating with a foreign person. And the court, over time, kept modifying its own rules to make it easier for the National Security Agency –America’s 60,000 domestic spies — to spy on Americans.

See the rest here

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The Right to Be Left Alone

Posted by M. C. on September 8, 2022

Every move you make
And every vow you break
Every smile you fake
Every claim you stake
I’ll be watching you.
— “Every Breath You Take,” Song by The Police

Today, this is the most violated of personal rights; not by judges signing search warrants for surveillance, but by government officials — local, state and federal — ignoring and evading the natural right to privacy and pretending that the Fourth Amendment does not apply to them. 

By Andrew P. Napolitano

Every move you make
And every vow you break
Every smile you fake
Every claim you stake
I’ll be watching you.
— “Every Breath You Take,” Song by The Police

The Fourth Amendment to the U.S. Constitution guarantees the right to privacy. Like other amendments in the Bill of Rights, it doesn’t create the right; it limits government interference with it. Last week, President Joe Biden misquoted the late Justice Antonin Scalia suggesting that Justice Scalia believed that the Bill of Rights creates rights. As Justice Scalia wrote, referring to the right to keep and bear arms but reflecting his view on the origins of all personal liberty, the Bill of Rights secures rights, it doesn’t create them; it secures them from the government.

Those who drafted the Bill of Rights recognized that human rights are pre-political. They precede the existence of the government. They come from our humanity, and, in the case of privacy, they are reinforced by our ownership or legal occupancy of property.

The idea that rights come from our humanity is called Natural Law theory, which was first articulated by Aristotle in 360 B.C. The natural law teaches that there are aspects of human existence and thus areas of human behavior that are not subject to the government. Aristotle’s views would later be refined by Cicero, codified by Aquinas, explained by John Locke, and woven into Anglo-American jurisprudence by British jurists and American revolutionaries and constitutional framers.

Thus, our rights to think as we wish, to say what we think, to publish what we say, to worship or not, to associate or not, to defend ourselves from crazies and tyrants, to own property, and to be left alone are all hard-wired into our human natures by God, the uncaused cause. Nature is the means through which God passes along His gifts to us. We come about by a biological act of nature, every step of which was ordained by God. His greatest gift to us is life, and He tied that gift to free will. Just as He is perfectly free, so are we.

In exercising our free wills, we employ rights. Rights are claims against the whole world. They don’t require approval of a government or neighbors or colleagues. The same rights exist in everyone no matter their place of birth, and each person exercises them as she or he sees fit. The government should only come into the picture when someone violates another’s natural rights. So, if someone builds a house in your backyard, you can knock it down and expel the builders or you can ask the government to do so.

Suppose the builders haven’t consented to the existence of the government? That does not absolve them. Though government is only moral and legal in a society in which all persons have consented to it — this is Thomas Jefferson’s “consent of the governed” argument in the Declaration of Independence — the only exception to actual consent is the use of government to remedy a violation of natural rights.

Professor Murray Rothbard examined all this under his non-aggression principle (NAP): Initiating or threatening force or deception against a person or his rights is always morally illicit. This applies to all aggression, even — and especially — from the government. The folks building a house in your backyard have either used force or deception to get there. Both violate your natural rights and the NAP.

Now, back to the Fourth Amendment and privacy. In a famous dissent in 1928, which two generations later became the law of the land, the late Justice Louis Brandeis argued that government surveillance constitutes a search under the Fourth Amendment and thus, per the express language of the amendment, cannot be conducted by the government without a warrant issued by a judge. He famously called privacy the right most valued by civilized persons and described it as “the right to be let alone.”

Today, this is the most violated of personal rights; not by judges signing search warrants for surveillance, but by government officials — local, state and federal — ignoring and evading the natural right to privacy and pretending that the Fourth Amendment does not apply to them. 

See the rest here

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Using War to Assault Freedom

Posted by M. C. on April 21, 2022

War is the health of the state and the graveyard of liberty. The drug war was a disaster for freedom. The war in Ukraine will be so as well, only if we permit it.

By Andrew P. Napolitano

Most judges and lawyers agree that the war on drugs in the past 50 years has seriously diminished the right to privacy guaranteed by the Fourth Amendment.

Now a small group of legal academics is arguing that the war in Ukraine should be used to diminish property rights guaranteed by the Fifth Amendment.

Here is the backstory.

The Fourth Amendment was written to guarantee that the government may only search and seize persons, houses, papers and effects pursuant to a search warrant issued by a judge after the presentation under oath of evidence demonstrating that the place to be searched more likely than not contains evidence of crime. And the warrant itself must specifically describe the place to be searched and the person or thing to be seized.

These requirements — the work of James Madison, who was the scrivener of the Constitution in 1787 and the author of the Bill of Rights in 1791 — were intended to have two effects.

The first effect was to uphold the quintessentially American right to be left alone. The second was to compel the government to focus its law enforcement personnel and assets on crimes for which there is probable cause, not fishing expeditions or hunches.

Madison’s language prohibited absolutely the use of general warrants, a favorite tool of the British government against the colonists. General warrants were based on whatever the government wanted or claimed it needed.

The colonists were tormented by, and driven to revolution over, general warrants, as they authorized British agents to search wherever they wished and seize whatever they found. Surely, the dreadful colonial experience with general warrants was a driving force behind the wording and ratification of the Fourth Amendment.

Sadly, during the war on drugs, prosecutors and police persuaded judges to craft “emergency” exceptions to the Fourth Amendment. These included allowing police to look for whatever they wanted in cars and homes, and using the CIA for warrantless surveillance, lest the drugs supposedly being sought be destroyed before capture.

The effect of this was to destroy a fundamental liberty in deference to easing police work; that’s the definition of a police state. The courts effectively ruled that somehow the Constitution prefers liberty — rather than evidence of crimes — to be destroyed.

The Fifth Amendment protects the life, liberty and property of all persons from destruction or aggression by the government without due process of law. Due process requires a jury trial at which the government must prove fault.

Thus, property cannot be seized temporarily or taken permanently without either a search warrant or a jury trial.

Now back to the war in Ukraine.

See the rest here

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No-Knock Raids Rip a Hole in the Fourth Amendment

Posted by M. C. on April 21, 2022

by John W. Whitehead

Just that simple act—of standing frozen in fear and self-defense—is enough to spell your doom.

In your final moments, you get a good look at your assassins: it’s the police.

they always shoot the dogs first

We’re all potential victims.”—Peter Christ, retired police officerRubber-stamped, court-issued warrants for no-knock SWAT team raids have become the modern-day equivalent of colonial-era writs of assistance.
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It’s the middle of the night.

Your neighborhood is in darkness. Your household is asleep.

Suddenly, you’re awakened by a loud noise.

Someone or an army of someones has crashed through your front door.

The intruders are in your home.

Your heart begins racing. Your stomach is tied in knots. The adrenaline is pumping through you.

You’re not just afraid. You’re terrified.

Desperate to protect yourself and your loved ones from whatever threat has invaded your home, you scramble to lay hold of something—anything—that you might use in self-defense. It might be a flashlight, a baseball bat, or that licensed and registered gun you thought you’d never need.

You brace for the confrontation.

Shadowy figures appear at the doorway, screaming orders, threatening violence.

Chaos reigns.

You stand frozen, your hands gripping whatever means of self-defense you could find.

Just that simple act—of standing frozen in fear and self-defense—is enough to spell your doom.

The assailants open fire, sending a hail of bullets in your direction.

You die without ever raising a weapon or firing a gun in self-defense.

In your final moments, you get a good look at your assassins: it’s the police.

Brace yourself, because this hair-raising, heart-pounding, jarring account of a no-knock, no-announce SWAT team raid is what passes for court-sanctioned policing in America today, and it could happen to any one of us.

Nationwide, SWAT teams routinely invade homes, break down doors, kill family pets (they always shoot the dogs first), damage furnishings, terrorize families, and wound or kill those unlucky enough to be present during a raid.

No longer reserved exclusively for deadly situations, SWAT teams are now increasingly being deployed for relatively routine police matters such as serving a search warrant, with some SWAT teams being sent out as much as five times a day.

SWAT teams have been employed to address an astonishingly trivial array of so-called criminal activity or mere community nuisances: angry dogs, domestic disputesimproper paperwork filed by an orchid farmer, and misdemeanor marijuana possession, to give a brief sampling. In some instances, SWAT teams are even employed, in full armament, to perform routine patrols.

These raids, which might be more aptly referred to as “knock-and-shoot” policing, have become a thinly veiled, court-sanctioned means of giving heavily armed police the green light to crash through doors in the middle of the night.

No-knock raids, a subset of the violent, terror-inducing raids carried out by police SWAT teams on unsuspecting households, differ in one significant respect: they are carried out without police having to announce and identify themselves as police.

It’s a chilling difference: to the homeowner targeted for one of these no-knock raids, it appears as if they are being set upon by villains mounting a home invasion.

Never mind that the unsuspecting homeowner, woken from sleep by the sounds of a violent entry, has no way of distinguishing between a home invasion by criminals as opposed to a police mob. In many instances, there is little real difference.

According to an in-depth investigative report by The Washington Post, “police carry out tens of thousands of no-knock raids every year nationwide.”

See the rest here

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Prepare: The Supreme Court Might Legalize Warrantless Gun Seizures | The Libertarian Institute

Posted by M. C. on February 11, 2021

https://libertarianinstitute.org/articles/prepare-the-supreme-court-might-legalize-warrantless-gun-seizures/

by Matt Agorist

Last week, the Free Thought Project reported on HR 127, the most tyrannical gun bill ever proposed. The bill would target the poor by forcing citizens to pay $800 per year to possess firearms that they are required to register. It also bans multiple legal guns and ammo types, turning tens of millions of Americans into felons over night. While this bill is, without a doubt, the worst gun bill in history, it didn’t lay out any guidelines for violating a citizen’s Fourth Amendment right. Next month, however, the Supreme Court will be considering exactly that—can cops enter a home to seize guns without a warrant?

That escalated quickly.

In March, the Supreme Court will hear the case of Caniglia v. Strom, which asks the question of whether the “community caretaking” exception to the Fourth Amendment’s warrant requirement extends to the home.

The community caretaker exception, has already been recognized as an exception to the Fourth Amendment by the United States Supreme Court. In Cady v. Dombrowski, 413 U.S. 433 (1973), the United States Supreme Court held that police officers did not violate the Fourth Amendment when they searched the trunk of a car that had been towed after an accident.

The Court acknowledged that, “except in certain carefully defined classes of cases,” police cannot search private property without consent or a warrant. It emphasized, however, that “there is a constitutional difference between houses and cars.” Since Cady, there has been a whole host of cases that took this holding and created the doctrine of “community caretaking.” Cady defined community caretaking activities as those “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”

In other words, as long as an officer might reasonably think that a warrantless search will alleviate a danger to the community, the search is considered constitutional. This was in vehicles, not homes.

While the caretaker exception has long been applied to vehicles, the idea of applying it to homes and allowing cops to seize guns without a warrant is worrisome. In an article from Forbes, the case of Caniglia v. Strom, is explained:

Mr. Caniglia was arguing with his wife and melodramatically put an unloaded gun on the table and said “shoot me now and get it over with.” His wife called a non-emergency number for the police who arrived shortly thereafter. The police disagreed about whether Mr. Caniglia was acting “normal” or “agitated” but they convinced him to take an ambulance to the local hospital for evaluation. The police did not accompany him.

While he was on his way to the hospital, Mrs. Caniglia told the police that her husband kept two handguns in the home. The police decided to search his home for the guns without obtaining a warrant. (Mrs. Caniglia’s consent to have the police search their home was legally negated because the police untruthfully told her that her husband had consented to the seizure of any guns.) The police located and seized the two guns. Mr. Caniglia sued for the violation of his 4th Amendment right to privacy and his 2nd Amendment right to keep handguns in the home for self-protection.

The case has been making its way through the courts, with the courts ruling in favor of warrantless searches. The federal court just below the Supreme Court, the 1st Circuit Court of Appeals ruled that it is fine and dandy for cops to warrantlessly search your home and take your guns because they need “elbow room” to provide safety.

“At its core, the community caretaking doctrine is designed to give police elbow room to take appropriate action when unforeseen circumstances present some transient hazard that requires immediate attention. Understanding the core purpose of the doctrine leads inexorably to the conclusion that it should not be limited to the motor vehicle context. Threats to individual and community safety are not confined to the highways,” the court wrote.

As Forbes points out, unlike the “exigent circumstances” and “emergency aid” exceptions, the community caretaking exception is not limited to circumstances where there is no time to apply for a warrant. And the question of what sort of caretaking falls under this exception is extremely vague. Will the police be able to use it to, for example, conduct warrantless searches of political protesters’ homes to make sure they aren’t planning on violent behavior at their next political rally?

We have already seen tech giants like Facebook hand over the private messages of those who talked about the events of January 6. If this ruling is upheld, it could pave the way for cops to raid the home of those who engage in peaceful discourse based solely on the premise that violence might happen.

President Biden has already labeled tens of millions of Americans who supported the pro-Trump rally in DC as “terrorists.”

Just a few weeks later and a DHS terror alert was issued for beliefs held by tens of millions of Americans like those who oppose lockdowns or who were upset over the outcome of the election. With the slippery slope of this case, these views could easily be included in the “elbow room” granted to police to carry out their “community caretaking” and subsequently raid homes and seize guns with no warrant.

Hopefully SCOTUS knocks down this ruling and cooler heads prevail. However, at the rate this tyranny is unfolding in 2021, that is not very likely.

This article was originally featured at The Free Thought Project

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Surveillance Kills Freedom – LewRockwell

Posted by M. C. on February 4, 2021

I offer this brief constitutional history so as to address the abuse of the Fourth Amendment, and the consequences of that abuse. Two weeks ago, the Defense Intelligence Agency — an arm of the Pentagon and one of 16 federal entities that spies on Americans — acknowledged publicly that it uses commercial software to monitor the movements and conversations of those on whom it has chosen to spy. And because it does so without warrants, it spies on whomever it wishes.

https://www.lewrockwell.com/2021/02/andrew-p-napolitano/surveillance-kills-freedom/

By Andrew P. Napolitano

“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights, and the right most valued by civilized men.”
— Justice Louis D. Brandeis (1856-1941)

When Justice Louis D. Brandeis referred to the right to privacy as “the right to be let alone,” it was 1928. He was dissenting in a Supreme Court opinion called Olmstead v. United States, in which federal agents tapped the telephone lines of Roy Olmstead and others and recorded their conversations about importing alcohol into the U.S. during Prohibition. They did so without search warrants. On the basis of the tapped conversations, Olmstead and his colleagues were convicted of conspiracy to violate federal law. The Supreme Court upheld their convictions.

The issue in the case was whether the Fourth Amendment’s prohibition of searches and seizures without a warrant issued by a judge based on probable cause of crime includes surveillance. When Brandeis dissented in Olmstead, telephones were novel and not in widespread personal use. It would be 39 years before the Supreme Court accepted Brandeis’ dissent as properly encapsulating the understanding of the framers when it characterized surveillance as a search.

Stated differently, the language in the Fourth Amendment, which unambiguously prohibits the government from engaging in warrantless searches and seizures, was not interpreted so as to characterize government surveillance as a search until 1967, when the Supreme Court accepted Brandeis’ rationale. Since then, it is commonplace that the government needs a warrant to engage in surveillance. The warrant is a constitutional bulwark against fishing expeditions, and it requires the courts to defer to privacy.

I offer this brief constitutional history so as to address the abuse of the Fourth Amendment, and the consequences of that abuse. Two weeks ago, the Defense Intelligence Agency — an arm of the Pentagon and one of 16 federal entities that spies on Americans — acknowledged publicly that it uses commercial software to monitor the movements and conversations of those on whom it has chosen to spy. And because it does so without warrants, it spies on whomever it wishes.

It claims that the language of the Fourth Amendment — which protects the right of all people to be secure in their persons, houses, papers and effects — only restrains law enforcement and does not restrain the balance of the government.

Yet, the whole purpose of the Bill of Rights is to recognize that personal liberty stems from our humanity. When Thomas Jefferson wrote the Declaration of Independence, he referred to our rights to life, liberty and the pursuit of happiness as inalienable from our human nature, and as gifts of the Creator.

The Bill of Rights, too, articulates that our rights are natural. The Ninth Amendment expressly commands that the enumeration of certain rights — such as the freedoms of religion, speech and press — shall not be construed by any government to deny or disparage other rights retained by the people.

Among the rights retained by the people — never given away to the states or the federal government — and thus protected by the Ninth Amendment, and since 1967 by the Fourth, is the right to privacy. The Olmstead decision focused narrowly on whether listening to someone’s telephone conversations without a warrant is as unconstitutional as rummaging through the person’s papers and effects without a warrant.

Brandeis understood that true happiness can only come from the exercise of personal liberty, and James Madison understood this when he wrote the Fourth Amendment. This understanding, as recognized by the courts today, is that the right to privacy protects intellectual activities, beliefs, thoughts, emotions, sensations, and private communications about them.

Who could be happy under a state of surveillance? Privacy is natural — there are things we all do that are none of the government’s business. Surveillance is totalitarian. It is the manifestation of the tyrant’s wish to know all about a potential opponent.

The whole purpose of the Bill of Rights is to keep the government at bay — off the people’s backs, as Justice William O. Douglas wrote — thereby protecting our natural state of freedom so that we can pursue happiness.

The Declaration of Independence underscores, and the Bill of Rights protects, the right to pursue happiness for individuals, not for governments.

Who can be happy while being observed by the government? A watched person changes behavior and loses liberty on account of being watched. The liberty to make unfettered choices, the right to shake a metaphorical fist in the tyrant’s face, the personal power to ignore what the government expects are all dissipated.

A watched person hesitates to exercise freedom. The more the government gets away with surveillance without warrants, the more people will accept the servitude it brings.

Personal freedom is the unfettered power to exercise natural rights without the approval of the government or the consent of any other person. It is the means to happiness. Yet, because we live in a society in which we need the government’s permission to do nearly anything, is it any wonder that the government wants to know everything about us?

The government that spies continuously has large ears and insatiable eyes. And on its face there is no smile.

The Best of Andrew P. Napolitano Andrew P. Napolitano [send him mail], a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written nine books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To find out more about Judge Napolitano and to read features by other Creators Syndicate writers and cartoonists, visit creators.com.

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The Rutherford Institute :: Virtual School Dangers: The Hazards of a Police State Education During COVID-19 | By John W. Whitehead |

Posted by M. C. on September 16, 2020

As a result, students are being subjected to police tactics such as handcuffs, leg shackles, tasers and excessive force for “acting up,” in addition to being ticketed, fined and sent to court for behavior perceived as defiant, disruptive or disorderly such as spraying perfume and writing on a desk.

This is what constitutes a police state education these days: lessons in compliance meted out with aggressive, totalitarian tactics.

It won’t be long before you start to see police carrying out knock-and-talk investigations based on whatever speculative information is gleaned from those daily virtual classroom sessions that allow government officials entry to your homes in violation of the Fourth Amendment.

It won’t take much at all for SWAT teams to start crashing through doors based on erroneous assumptions about whatever mistaken “contraband” someone may have glimpsed in the background of a virtual classroom session: a maple leaf that looks like marijuana, a jar of sugar that looks like cocaine, a toy gun, someone playfully shouting for help in the distance.

This may sound far-fetched now, but it’s only a matter of time before this slippery slope becomes yet another mile marker on the one-way road to tyranny.

https://www.rutherford.org/publications_resources/john_whiteheads_commentary/virtual_school_dangers_the_hazards_of_a_police_state_education_during_covid_19

By John W. Whitehead

“There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system, the Thought Police plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time. But at any rate they could plug in your wire whenever they wanted to. You had to live—did live, from habit that became instinct—in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized.”—George Orwell, 1984

Once upon a time in America, parents breathed a sigh of relief when their kids went back to school after a summer’s hiatus, content in the knowledge that for a good portion of the day, their kids would be gainfully occupied, out of harm’s way, and out of trouble.

Back then, if you talked back to a teacher, or played a prank on a classmate, or just failed to do your homework, you might find yourself in detention or doing an extra writing assignment after school or suffering through a parent-teacher conference about your shortcomings.

Of course, that was before school shootings became a part of our national lexicon.

As a result, over the course of the past 30 years, the need to keep the schools “safe” from drugs and weapons has become a thinly disguised, profit-driven campaign to transform them into quasi-prisons, complete with surveillance cameras, metal detectors, police patrols, zero tolerance policies, lock downs, drug sniffing dogs, school resource officers, strip searches, and active shooter drills.

Suddenly, under school zero tolerance policies, students were being punished with suspension, expulsion, and even arrest for childish behavior and minor transgressions such as playing cops and robbers on the playground, bringing LEGOs to school, or having a food fight.

Things got even worse once schools started to rely on police (school resource officers) to “deal with minor rule breaking: sagging pants, disrespectful comments, brief physical skirmishes.”

As a result, students are being subjected to police tactics such as handcuffs, leg shackles, tasers and excessive force for “acting up,” in addition to being ticketed, fined and sent to court for behavior perceived as defiant, disruptive or disorderly such as spraying perfume and writing on a desk.

This is what constitutes a police state education these days: lessons in compliance meted out with aggressive, totalitarian tactics.

The COVID-19 pandemic has added yet another troubling layer to the ways in which students (and their families) can run afoul of a police state education now that school (virtual or in-person) is back in session.

Significant numbers of schools within the nation’s 13,000 school districts have opted to hold their classes online, in-person or a hybrid of the two, fearing further outbreaks of the virus. Yet this unprecedented foray into the virtual world carries its own unique risks.

Apart from the technological logistics of ensuring that millions of students across the country have adequate computer and internet access, consider the Fourth Amendment ramifications of having students attend school online via video classes from the privacy of their homes.

Suddenly, you’ve got government officials (in this case, teachers or anyone at the school on the other end of that virtual connection) being allowed carte blanche visual access to the inside of one’s private home without a warrant.

Anything those school officials see—anything they hear—anything they photograph or record—during that virtual visit becomes fair game for scrutiny and investigation not just by school officials but by every interconnected government agency to which that information can be relayed: the police, social services, animal control, the Department of Homeland Security, you name it.

After all, this is the age of overcriminalization, when the federal criminal code is so vast that the average American unknowingly commits about three federal felonies per day, a U.S. Attorney can find a way to charge just about anyone with violating federal law.

It’s a train wreck just waiting to happen.

In fact, we’re already seeing this play out across the country. For instance, a 12-year-old Colorado boy was suspended for flashing a toy gun across his computer screen during an online art class. Without bothering to notify or consult with the boy’s parents, police carried out a welfare check on Isaiah Elliott, who suffers from ADHD and learning disabilities.

An 11-year-old Maryland boy had police descend on his home in search of weapons after school officials spied a BB gun on the boy’s bedroom wall during a Google Meet class on his laptop. School officials reported the sighting to the school resource officer, who then called the police.

And in New York and Massachusetts, growing numbers of parents are being visited by social services after being reported to the state child neglect and abuse hotline, all because their kids failed to sign in for some of their online classes. Charges of neglect, in some instances, can lead to children being removed from their homes.

You see what this is, don’t you?

This is how a seemingly well-meaning program (virtual classrooms) becomes another means by which the government can intrude into our private lives, further normalizing the idea of constant surveillance and desensitizing us to the dangers of an existence in which we are never safe from the all-seeing eyes of Big Brother.

This is how the police sidestep the Fourth Amendment’s requirement for probable cause and a court-issued warrant in order to spy us on in the privacy of our homes: by putting school officials in a position to serve as spies and snitches via online portals and virtual classrooms, and by establishing open virtual doorways into our homes through which the police can enter uninvited and poke around.

Welfare checks. Police searches for weapons. Reports to Social Services.

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Spying on Journalists – LewRockwell

Posted by M. C. on August 6, 2020

For starters, it is far easier to spy unlawfully than it is to obtain a search warrant. As well, the feds have established a vast network of domestic spies — the 60,000-person strong National Security Agency. It captures all electronic data, voice and text, communicated within the United States — without warrants and with few complaints.

All this directly assaults the right to privacy, but the feds do it anyway. The spying is so normal that a deputy DHS secretary ordered it in Portland without seeking approval up his chain of command.

https://www.lewrockwell.com/2020/08/andrew-p-napolitano/spying-on-journalists/

By

Last week, this column argued that the only constitutional role for armed federal forces in Portland, Oregon, was to assist U.S. marshals in protecting federal property and personnel there — in this case, the federal courthouse and those who come to it. The column also argued that under the U.S. Constitution, the feds have no lawful role in policing streets unless requested to do so by the governor or legislature of any state.

In Portland’s case, the governor of Oregon and the mayor of Portland both asked acting Secretary of Homeland Security Chad Wolf to bring his forces home. He agreed to do so when Oregon’s governor offered to beef up security at the federal courthouse.

Yet, the federal forces were doing more than just protecting federal property. They were agitating the peaceful demonstrators in Portland’s streets by firing an internationally banned variant of tear gas repeatedly and indiscriminately into crowds for hours at a time every night. The feds were also spying on journalists who were in the crowds of protestors reporting on what they observed.

Here is the backstory.

The Supreme Court has held, for many generations, that the Fourth Amendment to the Constitution protects the “right to be let alone.” Today, we call this privacy.

Those who wrote the Constitution were acutely aware of the proclivities of government to monitor the communications and behavior of folks it hates and fears. King George III sent British troops and government agents into the homes of colonists under various pretexts, the most notorious of which was to examine letters, papers and pamphlets to ascertain if the king’s tax on them had been paid.

This Stamp Act tax cost more to enforce than it generated in revenue. Was the king dumb or dumb like a fox? Probably the latter; the true purpose of the tax was not to raise money but to remind the colonists that the king could cross the thresholds of their homes — a right he did not have in Great Britain — through the use of his soldiers and agents. And, while inside the home, his agents could discover who was agitating for secession.

With memories of these royal abuses fresh in their minds, the members of the first Congress — led by James Madison — approved and passed the Fourth Amendment. The states ratified it as part of the Bill of Rights. Madison also drafted the Ninth Amendment, which reflects the existence in all people of natural human rights — knowable by the exercise of reason and insulated from government intrusion. Among those rights is privacy.

May the government lawfully invade the right to privacy? Under the Fourth Amendment, it may do so only pursuant to search warrants issued by a judge, and the judge may only issue a search warrant after taking testimony under oath demonstrating that it is more likely than not that the place to be searched will yield evidence of criminal behavior. Plus, the warrant must specify the place to be searched or the person or thing to be seized.

The language and requirements in the Fourth Amendment are the most specific in the Constitution. Madison insisted upon this so it would be both an obstacle to the new American government doing to its citizens what the king and his agents had done to the colonists, and an inducement to the government to focus law enforcement on probable causes of crime rather than spying on political enemies.

Now, back to the feds in Portland.

We know from their admissions that the feds compiled dossiers on numerous journalists covering their activities in Portland. We also know that some data in those dossiers came from public sources and some did not. The governmental acquisition of data from nonpublic, nongovernment sources without search warrants constitutes spying.

The government spies routinely on Americans today — so much so that the revelation of it ceases to shock.

Why would the feds do this?

For starters, it is far easier to spy unlawfully than it is to obtain a search warrant. As well, the feds have established a vast network of domestic spies — the 60,000-person strong National Security Agency. It captures all electronic data, voice and text, communicated within the United States — without warrants and with few complaints.

All this directly assaults the right to privacy, but the feds do it anyway. The spying is so normal that a deputy DHS secretary ordered it in Portland without seeking approval up his chain of command.

The government also spies to intimidate — and this brings us back to Portland. When the government discovers personal information that it has no right to acquire without a warrant — information devoid of criminal evidence, information that the Fourth Amendment bars the government from obtaining without a warrant — and then tells you it has this information, it chills your freedom.

Chilling can make you pause before exposing or criticizing the government. The Supreme Court has characterized this as a violation of both the Fourth Amendment and the freedom of speech protected by the First Amendment.

To Wolf’s credit, he either fired or transferred (it is unclear which) the deputy secretary who ordered DHS agents to spy on journalists in Portland. Yet, when ordered, they readily complied with the order. That’s how commonplace federal spying has become — and how easy.

The folks who did this should all lose their jobs. Why? Because it is unlawful to obey an unlawful order.

Or have our constitutional rights been so emasculated that the government doesn’t know the difference?

Andrew P. Napolitano [send him mail], a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written nine books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To find out more about Judge Napolitano and to read features by other Creators Syndicate writers and cartoonists, visit creators.com.

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Impeach Brett Kavanaugh – LewRockwell

Posted by M. C. on April 22, 2020

The Foreign Intelligence Surveillance Act of 1978 which created the Foreign Intelligence Surveillance Court (FISC) was supposed to be limited to intelligence gathering of “foreigners.” Thanks to judges of the ilk of Brett Kavanaugh, it has been expanded to cover U.S. citizens.

https://www.lewrockwell.com/2020/04/walter-e-block/impeach-brett-kavanaugh/

By

Brett Kavanaugh does not deserve a place on the United States Supreme Court and should be impeached.

Why? No, not those sexual allegations; unproven. She said, he said.

Why then? In a word: privacy.

Our bedrock Constitutional protection from unwarranted invasions in this regard is the Fourth Amendment. It reads as follows:

“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.”

In what way does Judge Kavanaugh fall foul of this eminently reasonable public security blanket? He supports the Patriot Act. And what manner of beast is that, pray tell? Its full title is: “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.” The bottom line on this is that it gives the Federal Government tools that are incompatible with the Fourth Amendment. To wit, it short circuits the “no Warrants” safeguard. Specifically, this Act greatly enhanced the ability of the Federales to interdict citizens’ communication, while undermining the ability of the latter to engage in court challenges of these expansions.

Representative Justin Amash (R-MI) was the only Republican member of the House of Representatives to oppose this nomination of President Trump’s. He stated “Privacy advocates must fight. There are many potential nominees with a conservative record on abortion, guns, and regulations. The only question is will the Senate confirm one who is really bad on the #4thAmendment, when so much is at stake in upcoming digital privacy battles.”

True, Mr. Amash cannot vote on this matter since he is not a member of the Senate. But, enquiring minds want to know if this stance of his will affect the position of his libertarian soldier-in-arms, Senator Ron Paul (R-KY). Hint, hint!

Judge Andrew Napolitano, no pinko, he, either, points out that the Patriot Act allows two members of the FBI to authorize a warrant without any by-your-leave from a judge. The government may also demand that you not reveal to anyone else that your home and effects have been searched, not only violating the Fourth Amendment, but the First one too.

The Foreign Intelligence Surveillance Act of 1978 which created the Foreign Intelligence Surveillance Court (FISC) was supposed to be limited to intelligence gathering of “foreigners.” Thanks to judges of the ilk of Brett Kavanaugh, it has been expanded to cover U.S. citizens.

A word about privacy, if you please. The Fourth Amendment, properly interpreted, limits the government, not anyone else, from invading privacy. Individuals may still “assault” each other’s privacy. If we could not, then the entire profession of detectives would be per se illegal. There go Sir Arthur Conan Doyle’s Sherlock Holmes, Raymond Chandler’s Philip Marlowe, Robert B. Parker’s Spenser, Agatha Christie’s Hercule Poirot, Rex Stout’s Nero Wolfe and Robert Crais’ Elvis Cole and all real world counterparts. We could not so much as look at each other without undermining privacy. (When my kids were young they would complain “he’s looking at me; “she’s looking at me; my wife and I tried to assure them that this was not a rights violation).

This privacy business is akin to censorship. Only the government can do this. If a private concern does this (you can’t yell “fire” in a crowded theater), they are not censoring you; they are only insisting on upholding their private property and contractual rights. Similarly for electronic platforms such as Google, Facebook, Amazon. They are not censoring the likes of Alex Jones, merely refusing to associate with him. Similarly, there are no privacy “rights” we can hold against other private citizens. The Fourth Amendment protects us only against governmental incursions.

With Mr. Brett Kavanaugh on the high court, these rights will be undermined.

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A Primer on Domestic Spying – LewRockwell

Posted by M. C. on February 13, 2020

Also unabated and equally unlawful and unconstitutional is the government’s use of cell towers as monitors of movement. Whenever anyone travels with a mobile device in the U.S., the nearest cell tower picks up signals from the mobile device, even turned off. The government, which either owns the cell towers or under Section 215, captures all the data the towers amass, can effectively follow any person with a mobile device in real-time.

How does the government get away with this?

https://www.lewrockwell.com/2020/02/andrew-p-napolitano/a-primer-on-domestic-spying/

By

“The Framers … conferred, as against the Government, the right to be let alone — the most comprehensive of rights, and the right most valued by civilized men.” — Justice Louis Brandeis (1856-1941)

While we were all consumed by impeachment, a pernicious piece of legislation was slowly and silently making its way through Congress. It is a renewal of Section 215 of the Patriot Act.

The Patriot Act of 2001 has three sections that are scheduled to expire on March 15. One of those sections is the infamous 215, which authorizes the federal government to capture without a warrant all records of all people in America held by third parties.

Do we really want the federal government to spy without warrants? How can Congress, which has sworn to preserve, protect and defend the Constitution, legislate such a blatant violation of it? Here is the backstory.

After the Constitution was ratified in 1789, it was soon amended to recognize the existence of natural rights and to keep the government from interfering with them. As Justice Brandeis wrote 140 years afterward, the most comprehensive of those rights was the right to be let alone, which today we call privacy.

To secure that right, the Fourth Amendment was ratified. The purpose of the Fourth Amendment was to prevent the government from utilizing general warrants and to require judicially authorized search warrants issued under narrow circumstances. James Madison, who drafted the Constitution and the Bill of Rights, shared the hatred that colonists-turned-Americans had for general warrants.

A general warrant was a document issued by a secret court in London authorizing the bearer of the document, usually a British soldier or intelligence agent, to search wherever he wished and to seize whatever he found. The applicant for the warrant needed to demonstrate to the court only that the warrant was intended to unearth something that the government wanted. Because these warrants did not specify the object of the search, there was no limit to them.

Hence Madison’s language in the Fourth Amendment preserving privacy but permitting the government to invade it only upon a showing, under oath, of probable cause of crime, and then requiring the warrant to specify in writing the place to be searched or the person or thing to be seized.

After 9/11, in the collective spirit of fear, timidity and subservience to the presidency, and in utter disregard for its members’ oaths to uphold the Constitution, Congress enacted the Patriot Act. It permits one federal agent to authorize another federal agent to search and seize whatever the latter wishes to look at and capture so long as it is in the possession of third-party financial institutions.

Over the years, the definition of “financial institution” has been radically expanded by both legislation and presidential executive orders so as to include nearly every conceivable entity that has any records about any person in America — from banks to hospitals to lawyers to merchants to credit card issuers to telecoms and computer service providers and even the post office.

At the same time that the Patriot Act was being expanded, the National Security Agency — America’s 60,000-person strong domestic spy apparatus — was not even pretending to follow legislation. We know from Edward Snowden’s revelations — which have never been disputed by the government — that since 2003, the NSA has captured not only the records of Americans held by third parties but also the records of every keystroke touched by every person in America and every telephone call transmitted over fiber optic cable. That includes every email, text message and piece of data — even what was deleted. This warrantless mass surveillance continues today unabated.

Also unabated and equally unlawful and unconstitutional is the government’s use of cell towers as monitors of movement. Whenever anyone travels with a mobile device in the U.S., the nearest cell tower picks up signals from the mobile device, even turned off. The government, which either owns the cell towers or under Section 215, captures all the data the towers amass, can effectively follow any person with a mobile device in real-time.

How does the government get away with this?

The feds have labored mightily to keep all of these constitutional violations as far from judicial scrutiny as they can. They rightly fear — they know — that all of this violates the Fourth Amendment. If their nefarious behavior, which we know they have used on the president of the United States and on the Supreme Court, comes under judicial scrutiny, the feds will argue that the Fourth Amendment only pertains to criminal prosecutions and not to domestic spying; thus, they can ignore it when they spy.

They have made up this argument out of thin air. There is neither a hint in the language of the amendment nor a whiff in its history to support that argument.

Has the government lost sight of our birthright? It is life, liberty and the pursuit of happiness — not to mention getting into Heaven. How can we do any of this if the government we have hired to preserve our liberty is surreptitiously destroying it?

Brandeis’ language about being let alone was written in 1928, in a dissent to a Supreme Court opinion that failed to recognize the right to privacy. Today, his dissent is the law of the land, but the feds ignore it. He wrote that there is more to life than owning material goods. There is the fulfillment of spiritual, intellectual and cultural goals and the achievement of intimate aspirations, none of which are the government’s business.

Why do we permit the government to assault our most basic freedoms, under the law or under the table?

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