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Author Topic: Privacy, Big Brother (State and Corporate) and the 4th & 9th Amendments  (Read 96706 times)
Body-by-Guinness
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« Reply #400 on: June 15, 2011, 02:01:39 PM »

In the absence of allegations, better yet. What could go wrong with that?
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G M
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« Reply #401 on: June 15, 2011, 02:22:22 PM »

I dunno, maybe we could go back to the good old days.


http://www.msnbc.msn.com/id/11923151/ns/us_news-security/t/agent-who-arrested-moussaoui-blasts-fbi/

ALEXANDRIA, Va. — The FBI agent who arrested Zacarias Moussaoui in August 2001 accused headquarters of criminal negligence for its refusal to investigate Moussaoui aggressively after his arrest, according to court testimony Monday.

Agent Harry Samit testified under cross-examination at Moussaoui’s trial that FBI headquarters’ refusal to follow up “prevented a serious opportunity to stop the 9/11 attacks” that killed nearly 3,000 people.
 
Moussaoui is the only person charged in this country in the attacks.
 
The FBI’s actions between Moussaoui’s arrest on immigration violations on Aug. 16, 2001, and Sept. 11, 2001, are crucial to his trial because prosecutors allege that Moussaoui’s lies prevented the FBI from thwarting or at least minimizing the Sept. 11 attacks. Prosecutors must prove that Moussaoui’s actions caused the death of at least one person on 9/11 to obtain a death penalty.
 
The defense argues that nothing Moussaoui said after his arrest would have made any difference to the FBI because its bureaucratic intransigence rendered it incapable of reacting swiftly to Moussaoui’s arrest under any circumstances.
 
Memo predicted aircraft hijacking
Under cross-examination by defense attorney Edward MacMahon, Samit acknowledged that he predicted in an Aug. 18, 2001, memo that Moussaoui was a radical Islamic terrorist in a criminal conspiracy to hijack aircraft. Moussaoui ended up pleading guilty to two specific counts that Samit had explicitly predicted in his Aug. 18 memo.
 
Despite Samit’s urgent pleadings, FBI headquarters refused to open a criminal investigation and refused Samit’s entreaties to obtain a search warrant.

“You needed people in Washington to help you out?” MacMahon asked.
 
“Yes,” Samit said.
 
“They didn’t do that, did they?”
 
Samit said no.
 

He confirmed under questioning that he had attributed FBI inaction to “obstructionism, criminal negligence and careerism” in an earlier report.
 
One FBI supervisor in Washington told Samit that he was getting unnecessarily “spun up” about his concerns over Moussaoui.
 
Death or life in prison to be determined
Moussaoui pleaded guilty in April to conspiring with al-Qaida to hijack aircraft and commit other crimes. The sentencing trial will determine his punishment: death or life in prison.
 
Moussaoui denies he had anything to do with 9/11 and says he was training for a future attack.
 
MacMahon also questioned Samit on whether the government could have legally searched Moussaoui’s Minnesota hotel room without first obtaining a warrant.
 
Samit said that in certain circumstances agents can conduct a search on foreign nationals immediately and obtain a warrant after the fact. But he said in Moussaoui’s case, he and his supervisors determined that it would be best to arrest Moussaoui first.
 
Samit testified before the trial’s recess last week that Moussaoui lied to him after his arrest and thwarted his ability to obtain a search warrant. Samit said that the FBI would have launched an all-out investigation if it had been able to search Moussaoui’s belongings.
 
“You blew an opportunity to search ... without arresting him?” MacMahon asked Samit.
 Samit responded, “That’s totally false.”
 
He said he found himself in a bureaucratic bind because he had opened an intelligence investigation on Moussaoui rather than a criminal investigation and therefore needed Justice Department approval to get a search warrant. Many of the barriers between criminal and intelligence investigations were removed after 9/11.
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Body-by-Guinness
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« Reply #402 on: June 15, 2011, 02:36:58 PM »

Well the only thing absent there is the absence of allegations, so your point is?

Guess you missed this sentence, too:

Quote
The defense argues that nothing Moussaoui said after his arrest would have made any difference to the FBI because its bureaucratic intransigence rendered it incapable of reacting swiftly to Moussaoui’s arrest under any circumstances.

Just how would the ability to investigate anyone at any time without a prerequisite act combat the rank buffoonery quoted above?
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G M
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« Reply #403 on: June 15, 2011, 02:42:02 PM »

I didn't miss the sentence. The FBI bureaucracy uses the FBI guidelines to impede the investigations of the "brick agents" that do the actual work. The guidelines do not change any legal restrictions the FBI operates under, just internal policy and procedure.
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G M
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« Reply #404 on: June 15, 2011, 02:56:45 PM »

So, in hindsight, would it have been better to have Special Agent Samit working under tighter or looser guidelines? On the plus side, none of the 9/11 hijackers had their civil rights violated by Big Brother......

http://www.smh.com.au/articles/2006/03/21/1142703358754.html

Paul Bresson, an FBI spokesman, declined to comment on the evidence from Mr Samit, who remains an agent in the FBI's Minneapolis office.

Michael Maltbie, the primary supervisor Mr Samit accused of impeding his investigation, said on Monday that the issues raised in court "have been looked at extensively by Congress, the Justice Department, my own people".

"The [FBI] director has given me a chance to respond to some of these issues that have come up," said Mr Maltbie, a former counterterrorism supervisor at headquarters in Washington and now a supervisory special agent in Cleveland, Ohio.

Moussaoui, 37, pleaded guilty last April to conspiring with al-Qaeda in the September 11 attacks. He was sitting in jail on that day following his arrest a month earlier after his activities raised suspicion at a Minnesota flight school.

On Monday, as jurors watched images of FBI documents flashing on television screens, a defence lawyer, Edward MacMahon, walked Mr Samit through a recital of government mistakes, prefacing nearly every question with: "You wanted people in Washington to know that … right?"

Moussaoui had raised Mr Samit's suspicions because he was training on a 747 simulator with limited flying experience and could not explain his foreign sources of income.

By August 2001 Mr Samit was telling FBI headquarters that he believed Moussaoui intended to hijack a plane "for the purpose of seizing control of the aircraft".

Mr Samit said he kept trying to persuade his bosses to authorise the surveillance warrant or a criminal search warrant until the day before the attacks.
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bigdog
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« Reply #405 on: June 16, 2011, 09:22:32 PM »

http://blogs.wsj.com/law/2011/06/16/supreme-court-expands-juveniles-miranda-rights/
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G M
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« Reply #406 on: June 16, 2011, 09:29:18 PM »


I actually agree with the court in this ruling. A juvie in the scenario would probably not feel free to refuse to answer questions and leave.
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JDN
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« Reply #407 on: June 16, 2011, 10:18:16 PM »

Good for you GM.
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Crafty_Dog
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« Reply #408 on: June 16, 2011, 11:45:08 PM »

Good thing I was sitting down as I read that or the shock might have been too much for me  cheesy grin
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G M
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« Reply #409 on: June 16, 2011, 11:54:51 PM »

Bust my chops all you will.  grin

If you'll look a bit deeper you'll find my opinions on search and seizure and other related constitutional issues are well within the mainstream of legal thought. I like to look at prior prescidentprecedentpresi....case law when contemplating legal questions. I have interviewed criminal suspects without Mirandizing them, however I made it clear from the outset that it was totally voluntary and set up the office seating so the person being interviewed had direct, unimpeded access to an exit door.
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Body-by-Guinness
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« Reply #410 on: June 17, 2011, 06:54:07 AM »

Quote
I didn't miss the sentence. The FBI bureaucracy uses the FBI guidelines to impede the investigations of the "brick agents" that do the actual work. The guidelines do not change any legal restrictions the FBI operates under, just internal policy and procedure.

I see, and so your response to poor job performance is less accountability. Seems we attended different schools of employee management. Or perhaps I'm misunderstanding; is your argument that the FBI's management is so lacking that brick and mortar agents should be left essentially unsupervised? Either way it would seem there's a big problem, one that had better be addressed rather than ignored.
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G M
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« Reply #411 on: June 17, 2011, 07:16:36 AM »

The biggest problem in law enforcement, more often than not is the lack of quality leadership. The system tends to reward bureaucracy and risk aversion and lose sight of what the agency is supposed to be doing, like enforcing the law. If you have a remedy, I'd like to hear it.


http://www.chron.com/CDA/archives/archive.mpl/2002_3552355/fbi-whistle-blower-assails-bureaucracy-agency-risk.html

WASHINGTON - The FBI agent whose impassioned protest letter ignited a storm of criticism of the bureau's management told a Senate committee on Thursday that the FBI's bureaucracy discouraged innovation, drowned investigators in paperwork and punished agents who sought to cut through the many layers of gatekeepers at FBI headquarters.
 The agent, Coleen Rowley, a lawyer in the bureau's Minneapolis office, gave the Senate Judiciary Committee a rare glimpse into life in the FBI's field offices, where most of the investigative work is done, but where, she said, agents operate under the thumb of risk-averse superiors in Washington.
 
"There's a certain pecking order and it's real strong," Rowley said, referring to how agents were effectively barred from raising issues over the heads of their immediate supervisors. Even then, she said, numerous layers of officials at headquarters reviewed the decisions of agents in the field. "Seven to nine levels is really ridiculous," she said.
 
In a letter, sent on May 21 to the FBI director Robert Mueller, Rowley bitterly criticized the performance of FBI headquarters agents in handling the case of Zacarias Moussaoui, the alleged 20th hijacker. She complained that headquarters agents stifled attempts by Minneapolis agents to obtain a warrant to examine Moussaoui's laptop computer. Moussaoui's computer was not searched until after the attacks.
 
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Body-by-Guinness
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« Reply #412 on: June 20, 2011, 11:31:30 AM »

Quote
The biggest problem in law enforcement, more often than not is the lack of quality leadership. The system tends to reward bureaucracy and risk aversion and lose sight of what the agency is supposed to be doing, like enforcing the law. If you have a remedy, I'd like to hear it.

Not my area of expertise so I do not have a remedy beyond not handing the foxes the keys to the chicken coops.
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G M
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« Reply #413 on: June 20, 2011, 11:36:28 AM »

Again, any arrest/prosecution ends up in front of a judge and jury who vet the investigative work done. In addition, the FBI has an OPR and the DOJ has an IG.
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Body-by-Guinness
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« Reply #414 on: June 20, 2011, 11:47:27 AM »

And hence we should not be concerned when an investigator mucks around in someone's life when there was no identifiable prerequisite act or probable cause because it does not end up in front of a judge? Somehow I suspect the founders would disagree. I'd feel better if all investigations did end up in front of a judge as that would establish a feedback loop that might dissuade inappropriate or unnecessary investigations. As I read these new rules, a lot of trees could fall in a lot of forests absolutely unheard.
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G M
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« Reply #415 on: June 20, 2011, 11:52:44 AM »

Mucks around how exactly? What exactly are you concerned about ?
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Body-by-Guinness
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« Reply #416 on: June 20, 2011, 02:51:15 PM »

Uh, the concerns raised by the piece that started this latest circular dance, the one with the lede reading:

Quote
The New York Times‘s Charlie Savage reports that the FBI is preparing to release a new Domestic Investigations and Operations Guide (DIOG), further relaxing the rules governing the Bureau’s investigation of Americans who are not suspected of any wrongdoing.

Emphasis added.
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G M
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« Reply #417 on: June 20, 2011, 02:54:55 PM »

Uh, the concerns raised by the piece that started this latest circular dance, the one with the lede reading:

Quote
The New York Times‘s Charlie Savage reports that the FBI is preparing to release a new Domestic Investigations and Operations Guide (DIOG), further relaxing the rules governing the Bureau’s investigation of Americans who are not suspected of any wrongdoing.

Emphasis added.

Well, you know if it's in the New York Times, it's the unvarnished truth! They'd never spin things.....
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Body-by-Guinness
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« Reply #418 on: June 21, 2011, 11:01:44 AM »

Blind Terror, Dumb State by Deepak Lal
from Cato Recent Op-eds

Earlier this month coming back to Delhi after a month long trip to Argentina, my wife, who is a US citizen and has had ten-year multi-entry visas for India ever since we married nearly 40 years ago, was not allowed to board the flight from Heathrow as she was returning less than two months since her departure from Delhi, in early April. Despite my loud protests that there was no such restriction on her visa, she had to return to London, and after some pulling strings got a stamp on her passport to re-enter India signed by the Indian High commissioner. This 'new' visa policy, is of course the government's response to the David Headley affair and, as with so many responses in the 'war on terror', it is fighting the last war. The draconian screening of airline passengers did not prevent a Nigerian student from concealing a bomb in his underpants across airline scanners in three airports as late as December 2009. So, now airline passengers have to virtually strip to board a plane. What are the costs and benefits of these growing restrictions on personal liberty and increase in state power?

When the 'war on terror' was launched in 2001, John Mueller (now at Ohio State University) and I wrote papers on this issue for a book edited by Richard Rosecrance and Arthur Stein (No More States, Rowman and Littlefield, 2006). The direct costs to the US economy were miniscule ($100 billion — less than 0.8 per cent of its GDP).The most serious costs were the increase in the uncertainty associated with doing business, and from preventive measures taken as an overreaction to the terrorist threat. Thus, apart from the direct costs of homeland security, there are the costs imposed on travellers in terms of the opportunity costs of the time lost in security searches at airports. These were estimated in 2002 to be $16 and $32 billion annually for the US. A more recent estimate by Mueller and Mark Stewart (at Newcastle University in Australia) of these indirect costs to US travellers between 2002 and 2011 was $417 billion. Wilst the direct costs of extra homeland security was $690 billion. This expenditure would only have been cost effective, they estimate, if it had prevented or deterred four attacks every day like the one foiled in Times Square in New York.

Neither are the personal risks that citizens face from terrorism serious. Since 1960 till 2001, based on the US State department data, Mueller estimated that the number of Americans killed by international terrorism (including 9/11) is about the same as the number killed over the same period by lightning, or by accidental deer, or by severe allergic reaction to peanuts. While, including both domestic and international terrorism, "far fewer people were killed by terrorists in the entire world over the [20th century] than died in any number of unnoticed civil wars during the century" (pg 48).

What about the fears of future terrorist attacks using stolen chemical, biological and nuclear weapons? Of these, for various reasons, the danger of a 'dirty bomb' using stolen fissile materials is the most pertinent. Biological and chemical weapons are not easy to use by private agents. The damage from a 'dirty bomb' would be localised to the real estate in the area which was made radioactive. The personal danger from the likely 25 per cent increase in radiation over background radiation in the area is miniscule. "A common recommendation from nuclear scientists and engineers" notes Mueller, "is that those exposed should calmly walk away" (pg 62).

The costs of actual and potential terrorism have thus been considerably overblown. Worse, the 'war on terror' by inducing the unjustified panic which the terrorists seek to create, foster their aim of creating terror. Worse, by extending State powers and emasculating civil liberties they promote the very illiberal societies and 'police' states the jehadis themselves seek. A 'terror industry' develops with the same rent-seeking purposes as so many other state-sponsored attempts to create 'risk free' societies. Terrorism will always be with us. But, as for instance, given the known risks from driving, which causes over 40,000 deaths every year in automobile accidents in the US, Americans have not stopped driving. But, with the hysteria and panic created by the much smaller number of deaths from terrorism, they (and increasingly many across the world in liberal democracies) are willing to devote scarce resources to chasing horrendous phantoms. They would do better to remember the words of an earlier President." The only thing we have to fear is fear itself."

How should the terrorist threat be dealt with? For many years I lived in London during the IRA's terrorist operations. The IRA not only succeeded in nearly killing Margret Thatcher and most of her cabinet in the Brighton bombing, but successfully launched a missile into John Major's cabinet room during a meeting. But during these Irish troubles, the British continued to follow the advice in an official Second World poster (to be issued in case of a German invasion): KEEP CALM AND CARRY ON. They dealt with the IRA terrorists by hunting them down through the usual intelligence methods and incarcerating or killing them. Meanwhile, the economic chaos and insecurity the IRA caused in its 'homeland' — Northern Ireland — plus the growing realisation of the failure of terrorism to achieve its aims, led to the political settlement contained in the Good Friday agreement.

In dealing with the undeniable state-sponsored Pakistani terrorism in India, a similar policy is relevant. The only long-term solution is to change the Pakistan army's calculus that it can succeed in destroying India (or its economy) through its jihadi agents. As this tiger it has unleashed, increasingly turns( as it has) against its sponsors, and the growing distance between its citizens in a stagnant and those in the booming Indian economy becomes apparent to its people (as is happening), the 'rent seeking' soldiers might at last realise that it is in their interests to complete the deal, which Musharaff nearly completed with Dr Manmohan Singh. Meanwhile, intelligence remains vital in apprehending and forestalling ISI-sponsored terrorists. But this is not done through heavy handed suppression of civil liberties. When,with information from Western intelligence agencies, about the co-ordinates of suspicious boats moving to Bombay, along with mobile numbers of some terrorists, Indian intelligence failed to forestall the 26/11 attacks, it is absurd to believe that they can forestall future terrorist plots by preventing my 70-year-old American wife from coming back to India, a month after she had left our New Delhi home

Deepak Lal is the professor of international development studies at the University of California, Los Angeles, and a senior fellow at the Cato Institute.

http://www.cato.org/pub_display.php?pub_id=13215
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G M
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« Reply #419 on: June 21, 2011, 11:35:12 AM »

"So, now airline passengers have to virtually strip to board a plane. What are the costs and benefits of these growing restrictions on personal liberty and increase in state power?"

How many 9/11's would be needed to destroy the global aviation infrastructure? Let's work out the cost/benefit analysis of successful catastrophic terror attacks on a regular basis.

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Body-by-Guinness
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« Reply #420 on: June 22, 2011, 09:51:44 AM »

So this is a benefit cost analysis free zone? As pointed out before, TSA's airport employee regimens are abysmal; why do we have to wait for a vulnerability to be exploited before it's addressed, and why do we fling tens of billions of dollars against threats unlikely to materialize as the next 9/11 style hijacking will generate an in-flight passenger response? Are you advocating against adaptability and for rigid structures that fail to address concrete threats?
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Body-by-Guinness
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« Reply #421 on: June 22, 2011, 09:52:21 AM »

TSA Now Storming Public Places 8,000 Times a Year

By Tara Servatius
Americans must decide if, in the name of homeland security, they are willing to allow TSA operatives to storm public places in their communities with no warning, pat them down, and search their bags.  And they better decide quickly.

Bus travelers were shocked when jackbooted TSA officers in black SWAT-style uniforms descended unannounced upon the Tampa Greyhound bus station in April with local, state and federal law enforcement agencies and federal bureaucrats in tow.

A news report by ABC Action News in Tampa showed passengers being given the signature pat downs Americans are used to watching the Transportation Security Administration screeners perform at our airports. Canine teams sniffed their bags and the buses they rode. Immigration officials hunted for large sums of cash as part of an anti-smuggling initiative.

The TSA clearly intends for these out-of-nowhere swarms by its officers at community transit centers, bus stops and public events to become a routine and accepted part of American life.

The TSA has conducted 8,000 of these security sweeps across the country in the past year alone, TSA chief John Pistole told a Senate committee June 14.  They are part of its VIPR (Visible Intermodal Prevention and Response) program, which targets public transit related places.

All of which is enough to make you wonder if we are watching the formation of the "civilian national security force" President Obama called for on the campaign trail "that is just as powerful, just as strong and just as well funded" as the military.

The VIPR swarm on Wednesday, the TSA's largest so far, was such a shocking display of the agency's power that it set the blogosphere abuzz.

In a massive flex of muscle most people didn't know the TSA had, the agency led dozens of federal and state law enforcement agencies in a VIPR exercise that covered three states and 5,000 square miles. According to the Marietta Times, the sweep used reconnaissance aircraft and "multiple airborne assets, including Blackhawk helicopters and fixed wing aircraft as well as waterborne and surface teams."

When did the TSA get this powerful? Last year, Pistole told USA Today he wanted to "take the TSA to the next level," building it into a "national-security, counterterrorism organization, fully integrated into U.S. government efforts."

What few people realize is how far Pistole has already come in his quest. This is apparently what that next level looks like. More than 300 law enforcement and military personnel swept through a 100-mile stretch of the Ohio Valley alone, examining the area's industrial infrastructure, the Charleston Gazette reported.

Federal air marshals, the Army Corps of Engineers, the U.S. Coast Guard, the FBI, the Office of Homeland Security and two dozen other federal, state and local agencies teamed up to scour the state's roads, bridges, water supply and transit centers under the TSA's leadership.

What is remarkable about these security swarms is that they don't just involve federal, state and local law enforcement officials. The TSA brings in squads of bureaucrats from state and federal agencies as well, everything from transportation departments to departments of natural resources.

The TSA had received no specific threats about the Tampa bus station before the April sweep, reporters were told.

They were there "to sort of invent the wheel in advance in case we have to if there ever is specific intelligence requiring us to be here," said Gary Milano with the Department of Homeland Security in an ABC News Action television report. "This way us and our partners are ready to move in at a moment's notice."

Federal immigration officials from Customs and Border Patrol swept the station with the TSA, looking for "immigration violations, threats to national security" and "bulk cash smuggling." (How the bulk cash smuggling investigation related to national security was never explained.)

"We'll be back," Milano told reporters. "We won't say when we'll be back. This way the bad guys are on notice we'll be back."

The TSA gave the same vague answers when asked about the three-state sweep this week. That sweep wasn't in response to any specific security threat, either.

The purpose was to "have a visible presence and let people know we're out here," Michael Cleveland, federal security director for TSA operations in West Virginia told the Gazette. "It can be a deterrent."

It might be -- if Americans are willing to live this way.

Tara Servatius is a radio talk show host. Follow her @TaraServatius and on Facebook.


Page Printed from: http://www.americanthinker.com/articles/../2011/06/tsa_now_storming_public_places_8000_times_a_tear.html at June 22, 2011 - 09:51:53 AM CDT
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Body-by-Guinness
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« Reply #422 on: June 22, 2011, 10:00:04 AM »

2nd post:

http://reason.com/archives/2011/06/21/what-you-dont-know-can-hurt-yo

What You Don’t Know Can Hurt You

The peril of vague criminal statutes

Harvey Silverglate from the July 2011 issue

The Soviet Union enacted an infamous law in 1922 that criminalized “hooliganism.” The crime was in the eye of the beholder, the beholder of consequence being the Soviet secret police. Because it was impossible for dissidents to know in advance whether they were violating this prohibition, they were always subject to arrest and imprisonment, all ostensibly according to law.

In the United States, we have legal safeguards against Soviet-style social controls, not least of which is the judicial branch’s ability to nullify laws so vague that they violate the right to due process. Yet far too many federal laws leave citizens unsure about the line between legal and illegal conduct, punishing incorrect guesses with imprisonment. The average working American adult, going about his or her normal life, commits several arguable federal felonies a day without even realizing it. Entire lives can change based on the attention of a creative federal prosecutor interpreting vague criminal laws.

Mail Fraud for Art Supplies

Consider the federal prohibition of “mail fraud,” which mainly describes the means of a crime (“through the mails”) rather than the substantive acts that violate the law (“a scheme or artifice to defraud”). In 2004, Steven Kurtz, an art professor at the State University of New York in Buffalo, was indicted on mail fraud charges for what boiled down to a paperwork error. Federal agents, after learning that Kurtz was using bacteria in his artwork to critique genetic engineering, launched a full-scale bioterrorism investigation against him. Finding nothing pernicious about the harmless stomach flora, they resorted to a creative interpretation of the mail fraud statute. Because Kurtz had ordered the bacteria through a colleague at the University of Pittsburgh Human Genetics Laboratory, his “scheme” to “defraud” consisted of not properly indicating on the order form that the bacteria were meant for his own use.

Or consider the Computer Fraud and Abuse Act, a 1986 law whose prohibitions—accessing a computer “without authorization,” for example—have been stretched to cover a wide swath of activity never envisioned when the bill was passed. In 2008, federal prosecutors in Los Angeles won a conviction in an online harassment case based on the theory that violating a website’s “terms of service” is a crime under this law. Thankfully, the judge rejected this interpretation and threw out the jury’s conviction.

The most dangerously far-reaching statutes tend to result from knee-jerk congressional reactions to the threat du jour. Stopping bullies, for example, is all the rage in legislatures as well as classrooms, especially given all the new ways Americans can transmit unpleasant messages. In April 2009, Rep. Linda Sánchez (D-Calif.) proposed the Megan Meier Cyberbullying Prevention Act, which would have made it a felony, punishable by up two to years in prison, to transmit by electronic means any message “with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person.” Sánchez named the bill after a 13-year-old Missouri girl who took her own life in 2006 after being taunted by a middle-aged woman who had assumed the online identity of a teenage boy (which led to the aforementioned online harassment case). Testifying in favor of the bill at a September 2009 hearing, Judi Westberg Warren, president of Web Wise Kids, said “speech that involves harm to others is wrong.”

That may be so, but using the criminal law to punish upsetting messages is also wrong, as well as inconsistent with constitutional freedom of speech. At the same hearing, testifying on behalf of the Cato Institute, I pointed out that the bill’s open-ended language extended far beyond adolescent (or middle-aged) bullies. Reporters, lawyers, even members of Congress are tasked daily, by virtue of their jobs, with what the bill defined as “cyberbullying.” A scathing online exposé, a stern letter emailed to an adversary, or a legislator’s principled stand articulated on Facebook might well cause someone, somewhere, to experience emotional distress. Prosecutors easily could argue that such a foreseeable effect was intended. And what about the time-honored American art of parody? If this law were passed, would Stephen Colbert be pulled off the air?

Fortunately, these and other common-sense objections seemed to hit home; the bill never made it out of committee, and it died with the 111th Congress. But the setback hasn’t stopped anti-bullying advocates, who last year introduced the Tyler Clementi Higher Education Anti-Harassment Act in response to yet another high-profile tragedy, the 2010 death of a Rutgers freshman who killed himself after his roommate secretly recorded his sexual encounter with another man. Although the bill, which was reintroduced this year, would not create any new criminal provisions, it would dramatically expand the civil concept of peer-on-peer “harassment” at colleges and universities that accept federal funds. The archives of the Foundation for Individual Rights in Education, a nonprofit organization that I co-founded and currently chair, provide ample evidence that the elastic concept of harassment on campus is already the most abused tool in suppressing campus speech and expression.

While Congress has not passed anti-bullying legislation yet, it did react to the financial collapse of 2008 with a complex law that transforms many non-fraudulent financial practices into felonies. The 848-page behemoth known as the Dodd-Frank Wall Street Reform and Consumer Protection Act introduced dozens of new federal offenses, many of which do not include the crucial requirement of criminal intent. For instance, the bill criminalizes any “trading, practice, or conduct” that disregards “the orderly execution of transactions during the closing period.” It also criminalizes the practice commonly known as “spoofing”—bidding or offering with the intent to cancel before execution. The Commodities Futures Trading Commission will have to define “orderly executions” and decide when a canceled bid or offer amounts to “spoofing.” In other words, dense, changeable rules issued by an unelected regulatory body will determine the difference between a legitimate trader and a felon.

Peaceniks for Terrorism

The federal ban on providing “material support” to a terrorist group, the statute that the federal government uses most frequently in prosecuting terrorism cases, provides another example of how difficult it can be to stay on the right side of the law. In 1998 the Humanitarian Law Project (HLP), a human rights organization based in Los Angeles, asked a federal judge whether the material support ban, which was first enacted in 1996, applied to its planned nonviolent advocacy on behalf of the Kurdistan Workers’ Party in Turkey, which appears on the State Department’s list of “foreign terrorist organizations.” The HLP wanted to train the group’s members on how to peacefully resolve disputes through international law, including methods to obtain relief from the United Nations.

Although the HLP’s plans were limited to offering advice and training aimed at avowedly peaceful ends, the answer to its legal question was by no means clear. Originally enacted as part of the 1996 Anti-Terrorism and Effective Death Penalty Act, which passed with broad bipartisan support following the Oklahoma City bombing, the material support statute has been amended several times, most notably by the 2001 PATRIOT Act, which added prohibitions on providing “training,” “expert advice or assistance,” and “personnel.” HLP President Ralph Fertig did not want to risk a prison sentence in finding out what the various provisions meant.

Fertig got his answer about a dozen years after initially seeking authoritative guidance, when the Supreme Court ruled that the material support law did indeed cover instruction in peaceful advocacy. In a 6-to-3 decision handed down in June 2010, the Court ruled in Holder v. HLP that the statute was not unconstitutionally vague and did not violate the right to freedom of speech or freedom of association. Writing for the majority, Chief Justice John Roberts reasoned that helping terrorist organizations to resolve disputes through international bodies or obtain humanitarian relief from the United Nations inevitably would free up resources for other, more nefarious ends. Hence a “person of ordinary intelligence would understand” that such conduct constitutes “material support.”

In a vivid illustration that the material support ban is not nearly as clear as Roberts claims, Georgetown law professor David Cole, who represented the HLP before the Supreme Court, pointed out in a January 2011 New York Times op-ed that several hawks in the War on Terror may have unwittingly violated the statute. By speaking at a December 2010 conference in Paris organized by supporters of the Mujahedeen-e-Khalq, an Iranian opposition group, former Attorney General Michael Mukasey, former Homeland Security Secretary Tom Ridge, former National Security Adviser Frances Townsend, and former New York City Mayor Rudolph Giuliani arguably coordinated their speech with a “foreign terrorist organization” and therefore, by the Supreme Court’s logic, provided it with “material support.”

These examples show that vague laws threaten Americans from all walks of life and all points on the political spectrum. Yet that depressing fact is actually encouraging, because it suggests the possibility of a broad coalition in support of much needed legal reforms, beginning with the basic principle that, absent a clearly stated prohibition, people must not be punished for conduct that is not intuitively criminal, evil, or antisocial. Otherwise we risk creating a modern American equivalent to the ban on hooliganism.

Harvey A. Silverglate (has@harveysilverglate.com), a criminal defense and civil liberty lawyer in Boston, is the author of Three Felonies a Day: How the Feds Target the Innocent (Encounter Books), which was just published in paperback. Kyle Smeallie helped him research and write this piece.
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G M
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« Reply #423 on: June 22, 2011, 10:07:17 AM »



Federal immigration officials from Customs and Border Patrol swept the station with the TSA, looking for "immigration violations, threats to national security" and "bulk cash smuggling." (How the bulk cash smuggling investigation related to national security was never explained.)


Oh my god! The feds are looking for illegal aliens and threats to national security! Cue the hysterical sobbing from Libertarians.
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« Reply #424 on: June 22, 2011, 10:26:03 AM »

You know, once upon a time, you could fly with a nuclear device or radiological materials and not get hassled by the MAN! First they came for the nukes......

On Thursday, the Transportation Security Administration completed a three-day exercise at Denver International Airport aimed at training the agency's "VIPR" teams in the use of nuclear and radiological detection equipment, said Robert Selby, assistant to the special agent in charge of the Federal Air Marshal Service's Denver field office.

VIPR stands for Visible Intermodal Prevention and Response units — groups of officers TSA has assembled to patrol aviation, rail and marine facilities nationwide as a counterterrorism measure.

VIPR teams include agents with varying responsibilities: air marshals, TSA inspectors, explosives-detection canine teams, bomb appraisal officers, explosive security specialists and behavior detection officers.

They frequently include local law enforcement officers; VIPR teams patrolled numerous locations in Denver during last year's Democratic National Convention.

The drill completed at DIA on Thursday included training on three pieces of Preventative Radiological Nuclear Detection equipment, Selby said.

One is a "mini" device about the size of a pager or PDA that can be worn on a belt. A second is a hand-held "radioactive isotope identification device" that can be directed by an agent at a potential radiological source, Selby added.

The third piece of equipment that officers will use is a radiation detection backpack.

Officers can use the equipment openly at stationary positions, as they were doing at DIA on Thursday — screening passengers at one sixth-level entrance to the terminal — or they can carry some of the devices covertly as they move about the airport or other facilities, officials said.

VIPR teams are deploying the radiological devices as part of a pilot program initiated by the Homeland Security Department's Domestic Nuclear Detection Office, Selby said.

"This is but another tool we have," he said, noting that for several years, VIPR teams have had explosives detection capabilities.



Read more: TSA tests capability of nuclear-detection devices at DIA - The Denver Post http://www.denverpost.com/newsheadlines/ci_14022529
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Body-by-Guinness
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« Reply #425 on: June 22, 2011, 10:53:34 AM »

Quote
Oh my god! The feds are looking for illegal aliens and threats to national security! Cue the hysterical sobbing from Libertarians.

. . . by cordoning off and then rounding up all citizens in an area and then patting them down and doing ID checks despite the fact the only thing resembling probable cause is that said people were standing in the wrong place at the wrong time. As a CCW holder who doesn't have a high regard for the skills most LEOs bring to encounters with legally armed citizens I suspect it's just a matter of time before SWAT wannabe "operators" shoot an otherwise innocent taxpayer who had the misfortune to look like a threat when the "team" crashed through the often times wrong door.
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Body-by-Guinness
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« Reply #426 on: June 22, 2011, 10:56:09 AM »

Quote
You know, once upon a time, you could fly with a nuclear device or radiological materials and not get hassled by the MAN! First they came for the nukes......

Uhm, nowhere in that piece did the feds cordon off an area, subject all within it to ID checks and then feel up citizens going about their business so your point is?
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« Reply #427 on: June 22, 2011, 11:06:57 AM »

". . . by cordoning off and then rounding up all citizens in an area and then patting them down and doing ID checks despite the fact the only thing resembling probable cause is that said people were standing in the wrong place at the wrong time."

Thus far, the courts have upheld administrative searches as part of screening passangers in mass transit, so this isn't just "rounding up citizens".

"As a CCW holder who doesn't have a high regard for the skills most LEOs bring to encounters with legally armed citizens I suspect it's just a matter of time before SWAT wannabe "operators" shoot an otherwise innocent taxpayer who had the misfortune to look like a threat when the "team" crashed through the often times wrong door."

I'm not sure what this has to do with VIPR teams. So, having officers without advanced tactical training serving search warrants is better?
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« Reply #428 on: June 22, 2011, 11:10:42 AM »

Quote
You know, once upon a time, you could fly with a nuclear device or radiological materials and not get hassled by the MAN! First they came for the nukes......

Uhm, nowhere in that piece did the feds cordon off an area, subject all within it to ID checks and then feel up citizens going about their business so your point is?

Officers can use the equipment openly at stationary positions, as they were doing at DIA on Thursday — screening passengers at one sixth-level entrance to the terminal — or they can carry some of the devices covertly as they move about the airport or other facilities, officials said.

Read more: TSA tests capability of nuclear-detection devices at DIA - The Denver Post http://www.denverpost.com/newsheadlines/ci_14022529
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« Reply #429 on: June 22, 2011, 11:43:28 AM »

http://openjurist.org/482/f2d/893/united-states-v-davis

482 F.2d 893
 
UNITED STATES of America, Plaintiff-Appellee,
v.
Charles DAVIS aka Marcus Anderson, Defendant-Appellant.
 
No. 71-2993.
 
United States Court of Appeals,
Ninth Circuit.
 
June 29, 1973.
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Crafty_Dog
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« Reply #430 on: June 23, 2011, 09:25:31 AM »

Please use the Subject line to facilitate finding this in the future and please provide a statement of why you are posting this.
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Body-by-Guinness
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« Reply #431 on: June 24, 2011, 08:43:01 AM »

Why you can't print counterfeit money on a color laser printer
by Melissa Riofrio, PCWorld   Jun 24, 2011 9:00 am

Could you print counterfeit money, certificates, or other official documents on a color laser or LED printer? Some current printer models are indeed capable of creating reasonable facsimiles. The authorities, however, have already taken steps to thwart such activity.


Print any nontext image on your printer, and take a very close look at it under bright light: You might just be able to make out a subtle pattern of yellow dots covering the page. Those dots are a microscopic code that allows government agencies to trace the page back to the printer that created it—making the person who pressed the Print button pretty easy to find.

How is the code printed, and what data does it contain? That's secret, of course—printer vendors remain tight-lipped about the details. In 2005, the Electronic Frontier Foundation cracked the anticounterfeiting code on a Xerox color laser printer; the documents the EFF examined were date- and time-stamped, and could be traced to the location of the printer. Digging further in 2008, the EFF used the Freedom of Information Act to obtain hundreds of pages of documents on the use of printer-tracing technology from the U.S. Bureau of Engraving and Printing. According to EFF staff technologist Seth Schoen, "the strategy of the government agencies that have worked on this technology—both U.S. and foreign governments--is mainly to keep as quiet as possible and hope that as little information as possible gets out."

As color laser printers become affordable enough for small or home offices, this tracing technology is coming closer to where we all live. "We were able to buy a low-end Dell color laser that was targeted to home users for just a few hundred dollars," Schoen notes, "and it included tracking dots. It seems like they're a part of the printers that more and more people use every day."

Consumers who discover the dots are understandably surprised. Brahm's Yellow Dots, a blog dating from 2008, chronicles the efforts of Brahm Neufeld, a student at the University of Saskatchewan in Canada, to communicate with his printer's vendor, Lexmark, after a friend told him about the yellow dots. To Lexmark's credit, the company eventually acknowledged what was going on and even offered to refund Neufeld for his printer. Neufeld, now an electrical engineer, remains concerned about the technology and the extreme discretion that printer vendors are exercising around it. "My motivation was always to document my experience—as a consumer--trying to get printer companies to fess up to this somewhat-shady practice."

What does all of this mean for you and your beloved color laser or LED printer? Unfortunately, you can do nothing about it, even though it means that almost anything you print on a compliant laser printer could, theoretically, be traced back to you. Consider, too, that when PCWorld reported on the yellow-dot controversy in 2004, the technology was already about 20 years old. "There's almost certainly a new-generation tracking technology that does not use yellow dots," warns Schoen. As if we needed more reasons to be paranoid.

http://www.macworld.com/article/160717/2011/06/counterfeit.html#lsrc.rss_main
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G M
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« Reply #432 on: June 24, 2011, 08:47:10 AM »

It's just so tragic that counterfeiters face this horrific oppression.  rolleyes
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Body-by-Guinness
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« Reply #433 on: June 24, 2011, 08:53:54 AM »

Quote
Thus far, the courts have upheld administrative searches as part of screening passangers in mass transit, so this isn't just "rounding up citizens".

A finding which I think is fundamentally unAmerican and do not support, hence my posts. Or does disagreeing with any finding any court has ever made preclude us from posting?

Quote
I'm not sure what this has to do with VIPR teams. So, having officers without advanced tactical training serving search warrants is better?

My original point regarded the roving TSA checkpoints, with the piece in question citing one such cordoning effort occurring in Florida. You can't imagine an encounter with an armed citizens occurring in FL? You think TSA agents are qualified to navigate that sort of scenario? If so, you have a far higher regard for their training and leadership than I do.


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Body-by-Guinness
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« Reply #434 on: June 24, 2011, 08:57:57 AM »

Quote
It's just so tragic that counterfeiters face this horrific oppression.

And that all Americans can be spied on by their government without their knowledge and contrary to my understanding of constitutional protections.
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G M
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« Reply #435 on: June 24, 2011, 09:05:59 AM »

Quote
Thus far, the courts have upheld administrative searches as part of screening passangers in mass transit, so this isn't just "rounding up citizens".

A finding which I think is fundamentally unAmerican and do not support, hence my posts. Or does disagreeing with any finding any court has ever made preclude us from posting?

Quote
I'm not sure what this has to do with VIPR teams. So, having officers without advanced tactical training serving search warrants is better?

My original point regarded the roving TSA checkpoints, with the piece in question citing one such cordoning effort occurring in Florida. You can't imagine an encounter with an armed citizens occurring in FL? You think TSA agents are qualified to navigate that sort of scenario? If so, you have a far higher regard for their training and leadership than I do.



Post whatever you want, but be prepared to have it criticized. Mass transit has and will continue to be a target for terrorists. It's reasonable to take steps to prevent that from happening rather than just sweep up the body parts and hope the terrorists get tired of mass slaughter.

As far as VIPR, there are Federal Air Marshals and others with law enforcement status doing the actual law enforcement, not just TSA screeners who are not LEOs.
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G M
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« Reply #436 on: June 24, 2011, 09:09:12 AM »

Quote
It's just so tragic that counterfeiters face this horrific oppression.

And that all Americans can be spied on by their government without their knowledge and contrary to my understanding of constitutional protections.

Spied on? Nice inflammatory language but not exactly accurate. Where exactly is there a constitutional protection of counterfeiting?
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G M
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« Reply #437 on: June 24, 2011, 09:22:27 AM »

Hey BBG,

Did you know your phone has something called a "phone number"? It's a number that starts with an "area code" that gives an approximate geographic area of where you live. Even worse, there are things called "phone books" that list names and the actual phone number assigned by the phone company, sometimes even with an actual street address as well!

Did you know that there are private companies that actually print up these "phone books" and give them away? Even worse, they give them to law enforcement agencies!!!!

Oh when will the spying end? This used to be a free country before phones!
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DougMacG
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« Reply #438 on: June 24, 2011, 12:47:30 PM »

"Mass transit has and will continue to be a target for terrorists."

 - Yet we have a national policy and regional policy almost everywhere to push people into mass transit.  Those who choose not to be molested should not have to pay for mass transit - in any way.
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Body-by-Guinness
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« Reply #439 on: June 24, 2011, 12:54:11 PM »

GM:

Dont dish it out if you can't deal with it.

Quote
Post whatever you want, but be prepared to have it criticized. Mass transit has and will continue to be a target for terrorists. It's reasonable to take steps to prevent that from happening rather than just sweep up the body parts and hope the terrorists get tired of mass slaughter.

Cogent criticism I have no qualm with. Circular criticism full of smoking holes in the landscape justifying myriad governmental transgressions are more often than not non-responsive hyperbole.

Quote
As far as VIPR, there are Federal Air Marshals and others with law enforcement status doing the actual law enforcement, not just TSA screeners who are not LEOs.

Non-responsive yet again. The feds are cordoning off areas where armed citizens are sure to be. My experience and that of many others is that LEOs don't have particularly high regard for armed citizens, see them as a potential threat, and hence tend to take things in a cuff 'em up and kneel on their head direction. Let me know if you need me to partake of your habit of citing case after case of this sort of behavior since cutting, pasting, asking stark questions and posting snide comments seem to be your preferred method of tangling.

Quote
Spied on? Nice inflammatory language but not exactly accurate. Where exactly is there a constitutional protection of counterfeiting?

I know you are not so dense as to think I'm arguing for counterfeiting so who is it that is being inflammatory? I'm arguing against the ability of the government to associate every given piece of paper printed or photocopied to a particular machine at a particular time and hence to particular people. There have been a lot of times and places where mere possession of certain political printed matter was good for a trip to the gulag or gas chamber, free speech protections ought to extend to printed material one expects to keep anonymous, and it's not hard to imagine a chilling effect once the American populace as a whole understands that just about every sheet of paper can be traced back to them.

If a policy is so critical that it must be so widely applied than there ought to be an argument made for it to the electorate. And if it is suspected that said electorate wouldn't sit still for this sort of snooping perhaps that ought to inform the thinking of those who scurry about launching these silent, complex schemes.

Quote
Did you know your phone has something called a "phone number"? It's a number that starts with an "area code" that gives an approximate geographic area of where you live. Even worse, there are things called "phone books" that list names and the actual phone number assigned by the phone company, sometimes even with an actual street address as well!

Did you know that there are private companies that actually print up these "phone books" and give them away? Even worse, they give them to law enforcement agencies!!!!

Oh when will the spying end? This used to be a free country before phones!

Hey GM:

Did you know there are these things called principles upon which this nation is founded? Perhaps you should review the Preamble to the Declaration of Independence, found here:

http://www.wfu.edu/~zulick/340/Declaration.html

For each of the "long train of abuses and usurptations" there is a modern day American analogue, and for each there was no doubt a snotty 1770s Crown official who could condescendingly explain why all those concerns should be dismissed. Well fornicate that; me and mine have an inalienable right to go about our business without the proboscis of Big Government being inserted in our collective affairs and if that means some Fed actually has to work for a living rather than running a search through all the data they should not be collecting, well boo-hoo.

Indeed, let me dispose of another argument you all too often use to excuse all sorts of intrusions. I loathe golf. My first cooking gig was at a public golf course where I discovered quite quickly that the game attracts a lot of unpleasant human beings. As such I know little about the game, and have no desire to learn more. However, should I be flipping through the channels and happen to see Tiger Woods slicing a shot into the rough I'm allowed to say "Whoa, he sure shanked that one."

Should I post that comment to a blog somewhere I'm relatively confident a bunch of golf pros won't show up and argue I can't say "Tiger Woods shanked a shot," unless I'm able tell Tiger how to improve his game. I don't know if he should keep his elbow flexed or bent, his head up or down, his hips square or canted, and so on, but I can tell when a shot is shanked and can't think of a reason I shouldn't say so.

Well the TSA regularly shanks shots. Feeling up little girls in a manner that would be defined as sexual assault in any other context is a shanked shot. Taking a plastic hammer from and autistic person is a shanked shot. Not allowing a father to assist his son as the son removes a cast is a shanked shot. And so on. This principle extends to MD mayors who mistakenly endure SWAT raids where their dogs get shot, to federal habits of vacuuming up all manner of commo that they then store and cross reference in a manner utterly devoid of oversight, to VIPR round ups, et al. All those activities are in fundamental conflict with the founding principles of this nation and thus ought not to occur and I don't have to come up with a better plan before saying so.

And you know what, if an LEO is so inept and unable to investigate or prevent a crime without tinkling all over the founding principles of this nation he or she ought to have his or her fanny fired. And if law enforcement agencies make similar arguments they ought to be disbanded for trying to kill the very thing they are sworn to protect and serve. Devolve those duties to the 50 states, let those laboratories of democracy find out what works, and then export those best practices to other agencies. And I, as a citizen, don't have to come up with any plan better than that before I can say this or that law enforcement agency shanked the bejesus out of a shot.

Maybe that makes this constitutional environment to hostile for some LEOs to do there job. Fortunately there are other opportunities in other environs where those pesky constitutional protections don't apply. For instance, I understand Gaddafi is hiring so all ought to have employment opportunities commensurate with their scruples.
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G M
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« Reply #440 on: June 24, 2011, 01:26:51 PM »

"Maybe that makes this constitutional environment to hostile for some LEOs to do there job. Fortunately there are other opportunities in other environs where those pesky constitutional protections don't apply. For instance, I understand Gaddafi is hiring so all ought to have employment opportunities commensurate with their scruples."

Citing Ka-daffy now? I guess Hitler, Stalin and Mao are taking a well-earned break from the usual hysterical screeds of how we are plunging into the depths of totalitarianism. I guess we better just burn all the books on forensic science since everything from fingerprints to toolmark analysis to DNA and hairs and fibers could be used by a totalitarian gov't to track down dissidents.

You rightfully mock the warmist hysteria "Oh god!(gaia) The poles are melting, the polar bears are drowning and AGW is going to kick your cat!"

Yet you do the exact same thing with your Libertarian police-state hypochrondria. "Oh god! The police have the ability to investigate crimes. We're doomed!"

Yes, you don't know anything about police work. Sure, you have a constitutionally protected freedom to voice your profound lack of knowledge and paranoia on the topic. I have a constitutionally protected right to criticize the uniformed and paranoid statements.
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G M
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« Reply #441 on: June 24, 2011, 02:08:46 PM »


http://gcn.com/Articles/2009/03/16/Secret-Service-Digital-Ink.aspx

Secret Service’s ink evidence library now electronically searchable
◦By Kathleen Hickey
◦Mar 16, 2009

The Secret Service’s Digital Ink Library, used to analyze ink evidence in investigations of financial crimes and protective intelligence cases, is now electronically searchable.

The Digital Library separates ink samples into unique bands by using a solvent system and digitizes the results. As a result of being digitized, ink sample matching takes minutes as opposed to hours or days, and inks remain safe from environmental degradation and accidental contamination.

“The transition of the Secret Service’s Digital Ink Library represents an important milestone in our efforts to enhance evidence collection and analysis to enable more rapid, effective prosecution,” said David Boyd, director of the Science and Technology Directorate’s Command, Control and Interoperability Division in the Homeland Security Department. “The Digital Ink Library will significantly enhance the Secret Service’s ability to assist local, tribal, state, and federal law enforcement agencies with the investigation and identification of suspects, making our nation safer and more secure.”

The largest digital ink library of its kind, the system was created in partnership with the Secret Service, CAMAG Scientific and the University of Lausanne. The Secret Service and other federal, state, local and international law enforcement agencies are able to access nearly 10,000 digitized ink samples in the library to identify and analyze written evidence. The inks are used to investigate criminal and terrorist cases involving fraudulent financial documents, checks, money orders, property and asset documents, and threats to persons under law enforcement protection.

**Oh the humanity!
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Crafty_Dog
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« Reply #442 on: July 04, 2011, 08:50:03 AM »


May 15, 2011

Why Privacy Matters Even if You Have 'Nothing to Hide'
Enlarge ImageBy Daniel J. Solove

When the government gathers or analyzes personal information, many people say they're not worried. "I've got nothing to hide," they declare. "Only if you're doing something wrong should you worry, and then you don't deserve to keep it private."

The nothing-to-hide argument pervades discussions about privacy. The data-security expert Bruce Schneier calls it the "most common retort against privacy advocates." The legal scholar Geoffrey Stone refers to it as an "all-too-common refrain." In its most compelling form, it is an argument that the privacy interest is generally minimal, thus making the contest with security concerns a foreordained victory for security.

The nothing-to-hide argument is everywhere. In Britain, for example, the government has installed millions of public-surveillance cameras in cities and towns, which are watched by officials via closed-circuit television. In a campaign slogan for the program, the government declares: "If you've got nothing to hide, you've got nothing to fear." Variations of nothing-to-hide arguments frequently appear in blogs, letters to the editor, television news interviews, and other forums. One blogger in the United States, in reference to profiling people for national-security purposes, declares: "I don't mind people wanting to find out things about me, I've got nothing to hide! Which is why I support [the government's] efforts to find terrorists by monitoring our phone calls!"

The argument is not of recent vintage. One of the characters in Henry James's 1888 novel, The Reverberator, muses: "If these people had done bad things they ought to be ashamed of themselves and he couldn't pity them, and if they hadn't done them there was no need of making such a rumpus about other people knowing."

I encountered the nothing-to-hide argument so frequently in news interviews, discussions, and the like that I decided to probe the issue. I asked the readers of my blog, Concurring Opinions, whether there are good responses to the nothing-to-hide argument. I received a torrent of comments:

My response is "So do you have curtains?" or "Can I see your credit-card bills for the last year?"
So my response to the "If you have nothing to hide ... " argument is simply, "I don't need to justify my position. You need to justify yours. Come back with a warrant."
I don't have anything to hide. But I don't have anything I feel like showing you, either.
If you have nothing to hide, then you don't have a life.
Show me yours and I'll show you mine.
It's not about having anything to hide, it's about things not being anyone else's business.
Bottom line, Joe Stalin would [have] loved it. Why should anyone have to say more?
On the surface, it seems easy to dismiss the nothing-to-hide argument. Everybody probably has something to hide from somebody. As Aleksandr Solzhenitsyn declared, "Everyone is guilty of something or has something to conceal. All one has to do is look hard enough to find what it is." Likewise, in Friedrich Dürrenmatt's novella "Traps," which involves a seemingly innocent man put on trial by a group of retired lawyers in a mock-trial game, the man inquires what his crime shall be. "An altogether minor matter," replies the prosecutor. "A crime can always be found."

One can usually think of something that even the most open person would want to hide. As a commenter to my blog post noted, "If you have nothing to hide, then that quite literally means you are willing to let me photograph you naked? And I get full rights to that photograph—so I can show it to your neighbors?" The Canadian privacy expert David Flaherty expresses a similar idea when he argues: "There is no sentient human being in the Western world who has little or no regard for his or her personal privacy; those who would attempt such claims cannot withstand even a few minutes' questioning about intimate aspects of their lives without capitulating to the intrusiveness of certain subject matters."

But such responses attack the nothing-to-hide argument only in its most extreme form, which isn't particularly strong. In a less extreme form, the nothing-to-hide argument refers not to all personal information but only to the type of data the government is likely to collect. Retorts to the nothing-to-hide argument about exposing people's naked bodies or their deepest secrets are relevant only if the government is likely to gather this kind of information. In many instances, hardly anyone will see the information, and it won't be disclosed to the public. Thus, some might argue, the privacy interest is minimal, and the security interest in preventing terrorism is much more important. In this less extreme form, the nothing-to-hide argument is a formidable one. However, it stems from certain faulty assumptions about privacy and its value.

To evaluate the nothing-to-hide argument, we should begin by looking at how its adherents understand privacy. Nearly every law or policy involving privacy depends upon a particular understanding of what privacy is. The way problems are conceived has a tremendous impact on the legal and policy solutions used to solve them. As the philosopher John Dewey observed, "A problem well put is half-solved."

Most attempts to understand privacy do so by attempting to locate its essence—its core characteristics or the common denominator that links together the various things we classify under the rubric of "privacy." Privacy, however, is too complex a concept to be reduced to a singular essence. It is a plurality of different things that do not share any one element but nevertheless bear a resemblance to one another. For example, privacy can be invaded by the disclosure of your deepest secrets. It might also be invaded if you're watched by a peeping Tom, even if no secrets are ever revealed. With the disclosure of secrets, the harm is that your concealed information is spread to others. With the peeping Tom, the harm is that you're being watched. You'd probably find that creepy regardless of whether the peeper finds out anything sensitive or discloses any information to others. There are many other forms of invasion of privacy, such as blackmail and the improper use of your personal data. Your privacy can also be invaded if the government compiles an extensive dossier about you.

Privacy, in other words, involves so many things that it is impossible to reduce them all to one simple idea. And we need not do so.

In many cases, privacy issues never get balanced against conflicting interests, because courts, legislators, and others fail to recognize that privacy is implicated. People don't acknowledge certain problems, because those problems don't fit into a particular one-size-fits-all conception of privacy. Regardless of whether we call something a "privacy" problem, it still remains a problem, and problems shouldn't be ignored. We should pay attention to all of the different problems that spark our desire to protect privacy.

To describe the problems created by the collection and use of personal data, many commentators use a metaphor based on George Orwell's Nineteen Eighty-Four. Orwell depicted a harrowing totalitarian society ruled by a government called Big Brother that watches its citizens obsessively and demands strict discipline. The Orwell metaphor, which focuses on the harms of surveillance (such as inhibition and social control), might be apt to describe government monitoring of citizens. But much of the data gathered in computer databases, such as one's race, birth date, gender, address, or marital status, isn't particularly sensitive. Many people don't care about concealing the hotels they stay at, the cars they own, or the kind of beverages they drink. Frequently, though not always, people wouldn't be inhibited or embarrassed if others knew this information.

Another metaphor better captures the problems: Franz Kafka's The Trial. Kafka's novel centers around a man who is arrested but not informed why. He desperately tries to find out what triggered his arrest and what's in store for him. He finds out that a mysterious court system has a dossier on him and is investigating him, but he's unable to learn much more. The Trial depicts a bureaucracy with inscrutable purposes that uses people's information to make important decisions about them, yet denies the people the ability to participate in how their information is used.

The problems portrayed by the Kafkaesque metaphor are of a different sort than the problems caused by surveillance. They often do not result in inhibition. Instead they are problems of information processing—the storage, use, or analysis of data—rather than of information collection. They affect the power relationships between people and the institutions of the modern state. They not only frustrate the individual by creating a sense of helplessness and powerlessness, but also affect social structure by altering the kind of relationships people have with the institutions that make important decisions about their lives.

Legal and policy solutions focus too much on the problems under the Orwellian metaphor—those of surveillance—and aren't adequately addressing the Kafkaesque problems—those of information processing. The difficulty is that commentators are trying to conceive of the problems caused by databases in terms of surveillance when, in fact, those problems are different.

Commentators often attempt to refute the nothing-to-hide argument by pointing to things people want to hide. But the problem with the nothing-to-hide argument is the underlying assumption that privacy is about hiding bad things. By accepting this assumption, we concede far too much ground and invite an unproductive discussion about information that people would very likely want to hide. As the computer-security specialist Schneier aptly notes, the nothing-to-hide argument stems from a faulty "premise that privacy is about hiding a wrong." Surveillance, for example, can inhibit such lawful activities as free speech, free association, and other First Amendment rights essential for democracy.

The deeper problem with the nothing-to-hide argument is that it myopically views privacy as a form of secrecy. In contrast, understanding privacy as a plurality of related issues demonstrates that the disclosure of bad things is just one among many difficulties caused by government security measures. To return to my discussion of literary metaphors, the problems are not just Orwellian but Kafkaesque. Government information-gathering programs are problematic even if no information that people want to hide is uncovered. In The Trial, the problem is not inhibited behavior but rather a suffocating powerlessness and vulnerability created by the court system's use of personal data and its denial to the protagonist of any knowledge of or participation in the process. The harms are bureaucratic ones—indifference, error, abuse, frustration, and lack of transparency and accountability.

One such harm, for example, which I call aggregation, emerges from the fusion of small bits of seemingly innocuous data. When combined, the information becomes much more telling. By joining pieces of information we might not take pains to guard, the government can glean information about us that we might indeed wish to conceal. For example, suppose you bought a book about cancer. This purchase isn't very revealing on its own, for it indicates just an interest in the disease. Suppose you bought a wig. The purchase of a wig, by itself, could be for a number of reasons. But combine those two pieces of information, and now the inference can be made that you have cancer and are undergoing chemotherapy. That might be a fact you wouldn't mind sharing, but you'd certainly want to have the choice.

Another potential problem with the government's harvest of personal data is one I call exclusion. Exclusion occurs when people are prevented from having knowledge about how information about them is being used, and when they are barred from accessing and correcting errors in that data. Many government national-security measures involve maintaining a huge database of information that individuals cannot access. Indeed, because they involve national security, the very existence of these programs is often kept secret. This kind of information processing, which blocks subjects' knowledge and involvement, is a kind of due-process problem. It is a structural problem, involving the way people are treated by government institutions and creating a power imbalance between people and the government. To what extent should government officials have such a significant power over citizens? This issue isn't about what information people want to hide but about the power and the structure of government.

A related problem involves secondary use. Secondary use is the exploitation of data obtained for one purpose for an unrelated purpose without the subject's consent. How long will personal data be stored? How will the information be used? What could it be used for in the future? The potential uses of any piece of personal information are vast. Without limits on or accountability for how that information is used, it is hard for people to assess the dangers of the data's being in the government's control.

Yet another problem with government gathering and use of personal data is distortion. Although personal information can reveal quite a lot about people's personalities and activities, it often fails to reflect the whole person. It can paint a distorted picture, especially since records are reductive—they often capture information in a standardized format with many details omitted.

For example, suppose government officials learn that a person has bought a number of books on how to manufacture methamphetamine. That information makes them suspect that he's building a meth lab. What is missing from the records is the full story: The person is writing a novel about a character who makes meth. When he bought the books, he didn't consider how suspicious the purchase might appear to government officials, and his records didn't reveal the reason for the purchases. Should he have to worry about government scrutiny of all his purchases and actions? Should he have to be concerned that he'll wind up on a suspicious-persons list? Even if he isn't doing anything wrong, he may want to keep his records away from government officials who might make faulty inferences from them. He might not want to have to worry about how everything he does will be perceived by officials nervously monitoring for criminal activity. He might not want to have a computer flag him as suspicious because he has an unusual pattern of behavior.

The nothing-to-hide argument focuses on just one or two particular kinds of privacy problems—the disclosure of personal information or surveillance—while ignoring the others. It assumes a particular view about what privacy entails, to the exclusion of other perspectives.

It is important to distinguish here between two ways of justifying a national-security program that demands access to personal information. The first way is not to recognize a problem. This is how the nothing-to-hide argument works—it denies even the existence of a problem. The second is to acknowledge the problems but contend that the benefits of the program outweigh the privacy sacrifice. The first justification influences the second, because the low value given to privacy is based upon a narrow view of the problem. And the key misunderstanding is that the nothing-to-hide argument views privacy in this troublingly particular, partial way.

Investigating the nothing-to-hide argument a little more deeply, we find that it looks for a singular and visceral kind of injury. Ironically, this underlying conception of injury is sometimes shared by those advocating for greater privacy protections. For example, the University of South Carolina law professor Ann Bartow argues that in order to have a real resonance, privacy problems must "negatively impact the lives of living, breathing human beings beyond simply provoking feelings of unease." She says that privacy needs more "dead bodies," and that privacy's "lack of blood and death, or at least of broken bones and buckets of money, distances privacy harms from other [types of harm]."

Bartow's objection is actually consistent with the nothing-to-hide argument. Those advancing the nothing-to-hide argument have in mind a particular kind of appalling privacy harm, one in which privacy is violated only when something deeply embarrassing or discrediting is revealed. Like Bartow, proponents of the nothing-to-hide argument demand a dead-bodies type of harm.

Bartow is certainly right that people respond much more strongly to blood and death than to more-abstract concerns. But if this is the standard to recognize a problem, then few privacy problems will be recognized. Privacy is not a horror movie, most privacy problems don't result in dead bodies, and demanding evidence of palpable harms will be difficult in many cases.

Privacy is often threatened not by a single egregious act but by the slow accretion of a series of relatively minor acts. In this respect, privacy problems resemble certain environmental harms, which occur over time through a series of small acts by different actors. Although society is more likely to respond to a major oil spill, gradual pollution by a multitude of actors often creates worse problems.

Privacy is rarely lost in one fell swoop. It is usually eroded over time, little bits dissolving almost imperceptibly until we finally begin to notice how much is gone. When the government starts monitoring the phone numbers people call, many may shrug their shoulders and say, "Ah, it's just numbers, that's all." Then the government might start monitoring some phone calls. "It's just a few phone calls, nothing more." The government might install more video cameras in public places. "So what? Some more cameras watching in a few more places. No big deal." The increase in cameras might lead to a more elaborate network of video surveillance. Satellite surveillance might be added to help track people's movements. The government might start analyzing people's bank rec ords. "It's just my deposits and some of the bills I pay—no problem." The government may then start combing through credit-card records, then expand to Internet-service providers' records, health records, employment records, and more. Each step may seem incremental, but after a while, the government will be watching and knowing everything about us.

"My life's an open book," people might say. "I've got nothing to hide." But now the government has large dossiers of everyone's activities, interests, reading habits, finances, and health. What if the government leaks the information to the public? What if the government mistakenly determines that based on your pattern of activities, you're likely to engage in a criminal act? What if it denies you the right to fly? What if the government thinks your financial transactions look odd—even if you've done nothing wrong—and freezes your accounts? What if the government doesn't protect your information with adequate security, and an identity thief obtains it and uses it to defraud you? Even if you have nothing to hide, the government can cause you a lot of harm.

"But the government doesn't want to hurt me," some might argue. In many cases, that's true, but the government can also harm people inadvertently, due to errors or carelessness.

When the nothing-to-hide argument is unpacked, and its underlying assumptions examined and challenged, we can see how it shifts the debate to its terms, then draws power from its unfair advantage. The nothing-to-hide argument speaks to some problems but not to others. It represents a singular and narrow way of conceiving of privacy, and it wins by excluding consideration of the other problems often raised with government security measures. When engaged directly, the nothing-to-hide argument can ensnare, for it forces the debate to focus on its narrow understanding of privacy. But when confronted with the plurality of privacy problems implicated by government data collection and use beyond surveillance and disclosure, the nothing-to-hide argument, in the end, has nothing to say.

Daniel J. Solove is a professor of law at George Washington University. This essay is an excerpt from his new book, Nothing to Hide: The False Tradeoff Between Privacy and Security, published this month by Yale University Press.


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G M
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« Reply #443 on: July 04, 2011, 09:13:50 AM »




One can usually think of something that even the most open person would want to hide. As a commenter to my blog post noted, "If you have nothing to hide, then that quite literally means you are willing to let me photograph you naked? And I get full rights to that photograph—so I can show it to your neighbors?" The Canadian privacy expert David Flaherty expresses a similar idea when he argues: "There is no sentient human being in the Western world who has little or no regard for his or her personal privacy; those who would attempt such claims cannot withstand even a few minutes' questioning about intimate aspects of their lives without capitulating to the intrusiveness of certain subject matters."

**Would someone who walks naked in public areas have a right of privacy that prevents them from being photographed? Or is there a requirement that if one wishes to assert privacy rights, that one actually takes steps to preserve that privacy?

But such responses attack the nothing-to-hide argument only in its most extreme form, which isn't particularly strong. In a less extreme form, the nothing-to-hide argument refers not to all personal information but only to the type of data the government is likely to collect. Retorts to the nothing-to-hide argument about exposing people's naked bodies or their deepest secrets are relevant only if the government is likely to gather this kind of information. In many instances, hardly anyone will see the information, and it won't be disclosed to the public. Thus, some might argue, the privacy interest is minimal, and the security interest in preventing terrorism is much more important. In this less extreme form, the nothing-to-hide argument is a formidable one. However, it stems from certain faulty assumptions about privacy and its value.

To evaluate the nothing-to-hide argument, we should begin by looking at how its adherents understand privacy. Nearly every law or policy involving privacy depends upon a particular understanding of what privacy is. The way problems are conceived has a tremendous impact on the legal and policy solutions used to solve them. As the philosopher John Dewey observed, "A problem well put is half-solved."


Of course, this is a strawman arguement typically found in this and other Libertarian threads. It's not a matter of "not having anything to hide", it's about balancing individual rights and freedoms with national security and public safety. The Libertarians that decry law enforcement never seem to leave this "statist" country for the various places on the planet without governments in place. Funny enough, without the rule of law, freedom tends to not mean much.
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Crafty_Dog
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« Reply #444 on: July 04, 2011, 06:12:49 PM »

"**Would someone who walks naked in public areas have a right of privacy that prevents them from being photographed? Or is there a requirement that if one wishes to assert privacy rights, that one actually takes steps to preserve that privacy?"

The problem arises when the government shoves a camera down your pants or up your anus.

More precisely, the point being made here is different than the straw man you attack.  The point is that people do and should have a right to privacy-- and that the "well if you have nothing to hide" argument is unsound.

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G M
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« Reply #445 on: July 04, 2011, 06:40:16 PM »

"The problem arises when the government shoves a camera down your pants or up your anus."

I missed that one? Where and when are cameras going into anal cavities?

"The point is that people do and should have a right to privacy-- and that the "well if you have nothing to hide" argument is unsound."

As has been discussed in detail, the courts recognize a "reasonable expectation of privacy". In your home with the blinds drawn is on the upper end of that, walking naked in public, not so much.
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Crafty_Dog
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« Reply #446 on: July 04, 2011, 06:44:54 PM »

The point being addressed here is the "Well, if you have nothing to hide argument".  May I take your response to mean that you agree that the argument is unsound?
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G M
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« Reply #447 on: July 04, 2011, 06:57:28 PM »

Yes, the arguement is unsound. I don't want to live in a society where police have unlimited powers.
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Crafty_Dog
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« Reply #448 on: July 04, 2011, 11:52:20 PM »

 cool cool cool
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bigdog
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« Reply #449 on: July 06, 2011, 11:28:47 PM »

http://www.huffingtonpost.com/2011/07/04/news-of-the-world-hacked-milly-dowler_n_889809.html

http://www.huffingtonpost.com/2011/07/06/news-of-the-world-hacking_n_891333.html#s303541&title=March_2002
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