Author: Clark

68

Texas v. Johnson … v. Berg

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1989:

wikipedia.org

Texas v. Johnson, 491 U.S. 397 (1989), was a decision by the Supreme Court of the United States that invalidated prohibitions on desecrating the American flag enforced in 48 of the 50 states. Justice William Brennan wrote for a five-justice majority in holding that the defendant Gregory Lee Johnson's act of flag burning was protected speech under the First Amendment to the United States Constitution.

2014:

wpxi.com

BLAIR COUNTY, Pa. — A Blair County man said he was standing up for this American Indian heritage and expressing his beliefs when he hung an American flag upside down and spray painted it earlier this week…

“I was offended by it…” said Allegheny Township police Assistant Chief L.J. Berg. Berg said he took the flag down and charged Joshua Brubaker with desecration and insults to the American flag. “I removed it from the building, folded it properly and seized it as evidence,” said Berg…

In Chief Berg's defense, intelligent people are barred by law from becoming police in many jurisdictions, and so we should perhaps not hold the chief to the same standards that we would use for a decent member of productive society.

38

A Riddle Wrapped In a Mystery Inside an Enigma

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Bruce Schneier:

https://www.schneier.com/blog/archives/2013/09/the_limitations.html

[ sometimes when ] we were sure of our [ covertly gained information ], we couldn't act because that would reveal "sources and methods." This is probably the most frustrating explanation. Imagine we are able to eavesdrop on al-Assad's most private conversations with his generals and aides, and are absolutely sure of his plans. If we act on them, we reveal that we are eavesdropping. As a result, he's likely to change how he communicates, costing us our ability to eavesdrop. It might sound perverse, but often the fact that we are able to successfully spy on someone is a bigger secret than the information we learn from that spying.

This dynamic was vitally important during World War II. During the war, the British were able to break the German Enigma encryption machine and eavesdrop on German military communications. But while the Allies knew a lot, they would only act on information they learned when there was another plausible way they could have learned it. They even occasionally manufactured plausible explanations. It was just too risky to tip the Germans off that their encryption machines' code had been broken.

The World War II bit isn't news to anyone who reads history (or, for that matter, Neal Stephenson novels).

I had an insight just now.

We know that the NSA collects all sorts of information on American citizens. We know that the FBI and the CIA have full access to this information. We know that the
DEA also has full access to that data. And we know that when the
DEA busts someone using information gleaned by the electronic panopticon of our internal spy organization, they take pains to hide the source of the information via the subterfuge of parallel construction.

The insight is this: our government is now dealing with the citizenry the same way that the British dealt with the Nazis: treating them as an external existential threat, spying on them, and taking pains to obfuscate the source of the information that they use to target their attacks.

Yeah, Godwin's law, whatever, whatever. My point is NOT that the NSA is the same as the Nazi party (in fact, my argument has the NSA on the opposite side). My point is that the government now treats ordinary civilians as worthy of the same sort of tactics that they once used against the Nazis.

This isn't really shocking, given that I think that the government has long been at war with the populace…but it's still a somewhat stark distillation of the trend.

35

That Claim Won't Fly

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For my money, this is the best lawyer-to-lawyer letter of all time, involving, as it does, a millionaire throwing a porn star off a balcony into a swimming pool by – and I quote – "her vagina".

The issue apparently begins when the porn star grabbed the millionaire's shirt and alters her trajectory (something I'm pretty sure all the tutorials for Kerbal Space Program tell you not to do), thus breaking her foot during reentry.

The letter is from the lawyer of the tosser to the letter of the tossee.

http://totalfratmove.com

I represent Dan Bilzerian and received your letter on behalf of Janice Griffith.

Like your client, the facts of the claim won't, quite, fly.

Maybe your client's theory is that Mr. Bilzerian negligently violated the established standard of reasonable care for one who throws a porn actor off a roof and into a pool during a photo shoot for an adult magazine.

I'll let that one sink in for a moment.

Far be it for me to cast aspersions on the editorial standards of Hustler magazine and "totalfratmove.com", but I'd say that there's a reasonable chance that the entire event (including the allegation of a broken foot, the initial demand letter, and the response letter) was staged.

Even if it's performance art instead of cinema verite, it made me laugh. Go read the whole thing.

When Your Enemy Is in the Process of Destroying Himself, Stay Out of His Way

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When Your Enemy Is in the Process of Destroying Himself, Stay Out of His Way

The gentle souls at the New York Police Department came up with a great idea: let's give the little people a way to really express how they feel about us!

Within the cloistered halls of the precinct stations this probably sounded like a can't fail idea. After all, everyone they knew loved the NYPD.

Thus was born the hashtag #myNYPD.

What could go wrong?

In short:

Yep.

< munches popcorn >

Keep them coming.

nihil sub sole novum

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We have to remember that 12-year-olds nowadays are at about my 7-year-old level, and your 4 and 5 year old level. Infancy is being prolonged by every possible agency now. I have just read an article on college education … by the President of the University of Chicago, and he calls college students "children" throughout. Remember that the Federal Government is taking care of "underprivileged children aged 16 to 24". Minds are not permitted to develop as they used to…

21 January 1938, Rose Wilder Lane to her mother

An Election is Simply a Festival for the Majority!

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I speak now to the minority:

I apologize for not posting more. I've had many interesting ideas swirling around my head, each of them the potential kernel of a good blog post.

…but I've strangely lost the urge, energy, or whatever to turn ideas into bytes-on-the-page.

I still hope to sit my ass down and generate some content at some point, but until then, feel free to watch this video of me before I was expelled from Japan and emigrated to America. My opinions have changed not a whit.

Chilling Effect, Next Steps, Final Steps, Hope

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Definition:

https://en.wikipedia.org/wiki/Open_society

open society
government in the open society is purported to be responsive and tolerant, and political mechanisms are said to be transparent and flexible.

Definition:

https://en.wikipedia.org/wiki/Chilling_effect

In a legal context, a chilling effect is the inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction.

Definition:

https://en.wikipedia.org/wiki/Culture_of_fear

Culture of fear is a term used by certain scholars, writers, journalists and politicians who believe that some in society incite fear in the general public to achieve political goals.

Definition:

https://en.wikipedia.org/wiki/Intimidation

Intimidation is intentional behavior that "would cause a person of ordinary sensibilities" fear of injury or harm.

Data:

http://warrantless.org/2014/03/snowden-search/

A new empirical research paper
I have coauthored with Professor Catherine Tucker of MIT-Sloan [ Clark note: originally at http://warrantless.org/wp-content/uploads/2014/03/Surveillance_Search.pdf ] examines the question of how Edward Snowden’s surveillance revelations have shifted the way people search for information on the Internet. We look at Google searches in the US and its top ten trading partners during 2013. We identify a roughly 5% drop in search volume on privacy-sensitive terms. In the US, UK and Canada, the countries in our data who were most involved with the surveillance controversy, search volume fell for search terms likely to get you in trouble with the government (“pipe bomb”, “anthrax” etc.), and for searches that were personally sensitive (“viagra”, “gender reassignment”, etc.). In France and Saudi Arabia, search volume fell only for the government-sensitive search terms. This paper, though at an early stage, provides the first systematic empirical evidence of a chilling effect on people’s search behaviors that is attributable to increased awareness of government surveillance. I will be presenting this paper at the Privacy Law Scholars’ Conference in DC in May, 2014. I would welcome comments at alex@warrantless.org.

Clark's editorial additions:

1) Police states are not boolean: A society can be more or less of a police state. The presence of newspapers and absence of death camps does not mean that there is not something of a police state.

2) It is not necessary for anyone to to desire or plan a police state for a police state to arise. Men of good intentions can honestly attempt to solve problems on the ground and in doing so end up worsen the overall picture.

3) When people feel that they can't look up entirely legal information in the 21st century equivalent of a book because they fear know that their government

and based on this knowledge "voluntarily" curtail their own legal behaviors, we have some noticeable degree of a police state.

Clark's suggestion:

1) Do go read the Marthew's paper. I approach all social science papers with an attitude of skepticism…and in this case I was surprised (pleasantly so) by table 6, where statistical confidence is specified.

2) Add warrantless.org to your RSS reader and follow @rebelcinder on Twitter.

3) Put aside existing models of how and why the US government works and approach it as a forensic anthropology question:

  • Note that the NSA, the DoD, and the State Department are regulated by the government, but regulation does not work they way one might expect.
  • Note that no matter which party seems to win an election, the bureaucracy always stays in place, and has its own agenda.
  • Note that elections do not create moral government or consent.
  • Note that the DNA of the government is not just the Constitution, but the extended phenotype of defense oriented firms, police departments, bureaucrats, dependents, and more.
  • Ask yourself if people of good will tried to reform the government in 1980, and 1990, and 200, and 2010, and it has gotten larger and more intrustive every year, what effect people of good will trying to reform the government in 2014 will have.

4)Withdraw your consent from the system.

  • Note that just because party A is terrible does not mean that party B is any better, and refuse to ever say "this will be better after the next election" or "we just need the right guy in office".
  • Note that just because because a Constitution exists and a Supreme Court says that it will enforce the Constitution does not mean that it actually does so.
  • Note that this is not "your" government but "the" government, which you can choose to give loyalty to or not, as you see fit.
  • Note that the government can do whatever it wants to your body, because it has more men and more guns, but it can not force you to acknowledge its moral legitimacy.

The system is unreformable. It has more guns than the good guys (at least now). But if discontent grows and enough people start to stop talking about "our government" and start talking "your [ illegitimate ] government", at some point even the hard men look out at the swelling crowd, realize that they are on the wrong side of history, and go home.

Or at least we can hope.

Takei on Phelps

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On the topic of gay marriage, I'm pretty old fashioned.

…by which I mean I believe what goes on in a marriage contract is between two or more people, their lawyers, and their goðar / non-governmental polycentric legal service providers.

As a non aligned bystander in the left-vs-right culture wars, I'm not as much a reflexively huge fan of George Takei as some people are.

Then I saw this:

George Takei

I take no solace or joy in this man's passing. We will not dance upon his grave, nor stand vigil at his funeral holding "God Hates Freds" signs, tempting as it may be.

He was a tormented soul, who tormented so many. Hate never wins out in the end. It instead goes always to its lonely, dusty end.

Well done, sir.

"Enter Big G's Command Center Through the Revolving Doors on K Street"

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Via Ken on Twitter:

Genius. Sheer genius.

I love everything about this, right down to the fine print on the website: "All audio, visual, and textual contents on this site have been granted an intellectual monopoly by the powers vested in the G-force."

"One horse-laugh is worth ten thousand syllogisms. It is not only more effective; it is also vastly more intelligent." – H. L. Mencken

Cage Fight

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dailymail.co.uk

The controversial billionaire Charles Saatchi told journalist Taki Theodoracopulos that his ex-wife 'always found you toe-curlingly vile' in a bizarre open letter to the magazine which has now resulted in the 77-year-old offering to take on Mr Saatchi in a cage fight.

Rumors that Taki Theodoracopulos has asked Texas lawyer Carl David Cedar to be his second at the cage match duel have not yet been confirmed as of press time.

Police interrogations: "I don't…" / "I would…" / "It's simple…"

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In the comments to the previous post, many people were a bit confused by why an innocent man would falsely confess to a crime. Lots of advice and commentary appeared in the reader responses: "I don't…", "I would…", "It's simple…".

In my opinion all of these responses were utterly misguided…except for one guy who got it dead on right:

@Dick Taylor:

Don't talk to the police without a lawyer. Ever. Then it doesn't matter if they lie to you. Cases like this are more proof that if it's just you against the police, you will lose every time. After two days of interrogation in that kind of an environment, I doubt that he was processing anything well enough to defend his own interests. Nobody would.

Even aside from the general advice that one should never talk to the cops (a video well known to most of us here, but I was still happy that Doctor X presented another link), there's a specific bit in Dick Taylor's comment that deserves to be presented in a 70 point font made out of glowing red neon letters:

I doubt that he was processing anything well enough to defend his own interests

I have never been handcuffed, taken down to the police station, or put in a room with a one way mirror.

…but I was once, years ago, ruthlessly grilled by two cops on the sidewalk in a situation where I was not free to leave. I am a very strong willed individual who knew deep in my bones that I was right, they were wrong, and that I should not say anything to them. So, of course, I didn't say anything to them, and the whole thing resolved itself.

But the point I want to make is even a very strong willed individual who is mentally prepared for a confrontation with the cops and has rehearsed what he will (or rather, won't) say still experiences a level of psychological pressure that is hard to describe. This was in a neutral settings, in an encounter that lasted less than an hour, on an average day. I can not imagine the psychological pressure one would feel after 12 hours of interrogation, in a locked room far from home, while wearing handcuffs, after a family member had died.

Barracks lawyers asserting "I don't…", "I would…", "It's simple…", etc. do not, I suggest, have a feeling for what it feels like to actually be in the kinds of situations they are talking about.

I strongly recommend reading “Only the Guilty Would Confess to Crimes”
: Understanding the Mystery of False Confessions by Douglas L. Keene and Rita R. Handrich.

It's about 10,000 words, so it will take 10 to 15 minutes…but it's 10 to 15 minutes well spent.

Government Weighs Government Role in Coercing Confessions ( From Innocent Citizens )

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The original headline is "Court Weighs Police Role in Coercing Confessions", but I like mine a bit better.

http://www.nytimes.com

detectives told Mr. Thomas repeatedly that the baby’s condition was an accident and that he would not be arrested. Several times they threatened to arrest his wife if he did not confess to abusing the baby, prompting him to say he would “take the rap.” Later they told him his son, who was already brain-dead, might die if he did not help doctors by describing how he hurt the boy.

Of course, the boy was already dead, and the detectives lied to the father, basically promising him that his son would live if he agreed to the fiction that he had done it, even if he hadn't.

After two days of interrogation, the father broke down, and agreed to the police lie, to save the life of his son and the freedom of his wife.

He is now serving a life sentence.

The judges were not with out sympathy. Oh, they had sympathy aplenty:

During arguments, several judges — among them Judge Lippman, Robert S. Smith and Eugene F. Pigott — expressed sympathy for Mr. Thomas’s contention that his confession was made under unfair pressure.

But sympathy only goes so far. There's precedent to worry about, and if innocent men have to go to jail to uphold precent, well, then, government employees understand the relative importance of these two things:

“We have precedent that says the police can use deception,” Judge Victoria A. Graffeo said. “What we are trying to figure out is when you enter this area of inappropriate pressure?”

“Don’t threaten to arrest people’s wives whom you know are innocent,” Mr. Frost answered.

“That’s a narrow rule,” Judge Pigott said.

Still, the judges are positively Solomonic compared to the prosecutor.

Ms. Egan… insisted the detectives had done nothing that would cast doubt on the veracity of Mr. Thomas’s statement.

A Funny Joke

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You know what would be a funny joke?

When you catch a guy driving drunk, instead of giving him a breathalizer test and then taking him to jail, instead zip tie his hands and then leave him in a Taco Bell parking lot.

…because he's Mexican, get it?

What's that?

The drunk guy wandered into traffic, hands behind his back, and got struck and killed by a car?

Uh – no comment.

Talk to our union lawyer.

And put down that camera, mother-fucker!

< pulls on rubber gloves >