consultants are sandburs

Thursday, March 23, 2017

Comey views on cybersecurity include a belief there is no right to "absolute privacy," meaning "absolute" is a weasel word; and the FBI is in the less-than-absolute right-to-privacy business. It is their world.


That Comey viewpoint may, unfortunately, be today's governing perception of wisdom and a balance between the individual and the government exercising powers over individual yearnings and action. Politico reported March 8, 2017, on Director Comey:

Comey, who delivered the keynote speech at the two-day conference on how the FBI is dealing with cybersecurity threats, did not address swirling questions around the bureau and claims by President Donald Trump that Obama ordered a wiretap of then-candidate Trump. Instead, his remarks covered privacy policy issues.

“All of us have a reasonable expectation of privacy in our homes, in our cars, and in our devices. But it also means with good reason, in court, government through law enforcement can invade our private spaces,” Comey said. “Even our memories aren’t private. Any of us can be compelled to say what we saw. … In appropriate circumstances, a judge can compel any of us to testify in court on those private communications.”

“There is no such thing as absolute privacy in America,” Comey said, because “there is no place in America outside of judicial reach.”

To the extent that last sentence holds truth, it is a damned good reason to question Neil Gorsuch as yet one more of "that kind" on the federal Supreme Court.

Back in the old days of Warren Court preeminence, when men on the Court were courageous, independent, and smart headed with no ties to big money having necessarily been a predicate to their being appointed a Justice; one of the best, William Douglas, wrote in Griswold v. Conneticut:

Appellant Griswold is Executive Director of the Planned Parenthood League of Connecticut. Appellant Buxton is a licensed physician and a professor at the Yale Medical School who served as Medical Director for the League at its Center in New Haven—a center open and operating from November 1 to November 10, 1961, when appellants were arrested.

They gave information, instruction, and medical advice to married persons as to the means of preventing conception. They examined the wife and prescribed the best contraceptive device or material for her use. Fees were usually charged, although some couples were serviced free.

The statutes whose constitutionality is involved in this appeal are §§ 53-32 and 54-196 of the General Statutes of Connecticut (1958 rev.). The former provides:

"Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned."

Section 54-196 provides:

"Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender."

The appellants were found guilty as accessories and fined $100 each, against the claim that the accessory statute as so applied violated the Fourteenth Amendment.

[...] Coming to the merits, we are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment. [...] We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation.

The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents' choice—whether public or private or parochial—is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.

[...W]e protected the "freedom to associate and privacy in one's associations," noting that freedom of association was a peripheral First Amendment right. Disclosure of membership lists of a constitutionally valid association, we held, was invalid "as entailing the likelihood of a substantial restraint upon the exercise by petitioner's members of their right to freedom of association." Ibid. In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion. In like context, we have protected forms of "association" that are not political in the customary sense but pertain to the social, legal, and economic benefit of the members. [W]e held it not permissible to bar a lawyer from practice, because he had once been a member of the Communist Party. The man's "association with that Party" was not shown to be "anything more than a political faith in a political party" and was not action of a kind proving bad moral character.

[...] Association in that context is a form of expression of opinion; and while it is not expressly included in the First Amendment its existence is necessary in making the express guarantees fully meaningful.

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U. S. 616, 630, as protection against all governmental invasions "of the sanctity of a man's home and the privacies of life."[*] We recently referred in Mapp v. Ohio, 367 U. S. 643, 656, to the Fourth Amendment as creating a "right to privacy, no less important than any other right carefully and particularly reserved to the people."

We have had many controversies over these penumbral rights of "privacy and repose." These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.

The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a "governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.

[citations omitted] So, while "privacy" is not a specifically stated right in the Bill of Rights, courts recognize it as essential; and as collateral to other enumerated rights having a clear and sensible meaning.

Now we have secret courts that can have secret warrant applications filed and secret warrants can be issued and the feds can force your local library to disclose what you've checked out and presumably read. Snowden disclosed abuse of privacy by NSA, and Wikileaks recently published about tools of privacy abuse held and used by the CIA.

Comey does not like encryption. He heads the FBI. It is exactly that conjunction that makes citizens want and use encryption, also to stymie business or political espionage, by business competitors or by those wanting your politics stymied and weakened in order that theirs might be more strongly prevalent.

Indeed, as long as there is a death penalty, there is no "absolute right" to life; so when the head of the FBI says you have "no absolute right" to privacy, pay heed. It would be nice if sometime Director Comey were to expand upon his meaning of "absolute" and where you do have rights. Erosion of rights recognized strongly by the Warren Court is an ever-present danger, and Gorsuch joining "money talks" Roberts/Alito on the Court would be a questionable thing. Curtailment of the right to an abortion coming to mind as but one complication of Gorsuch's likelihoods, were he on the Court. Then there are rights of association of laborers; and how the collective right to bargain, to strike, and to boycott could be carved yet thinner than the already thin norms; secondary boycotts coming to mind as something that would strengthen unions greatly, if allowed.

In fact, you can be hauled into court, as Director Comey noted; and your right to defend yourself entails a right to bankrupt yourself trying. The heavy boot on the throat might, with time and much travail, be pushed off, but while there it is uncomfortable and its removal without official punishment might well be viewed by victims as inflicted punishment to a quite unfair degree.

Answer for yourself, what "absolute right" of any kind do you really have? If all you get is propaganda, you lack an effective right to think - honest facts being needed as the food for sound thought. And then some on a national plane talk of "alternative facts" so, perhaps, you have alternative rights. If you "homeschool" offspring, the government will look into it and perhaps intrude measuring tests. The Constutional guaratee of no government deprivation of life, liberty or property without due process of law begs for the future case-by-case resolution of what process might be undue. And case-by-case is costly, the impecunious being at the mercy of the deep pocket and there is talk of an actual golden rule that the person owning the gold rules.

Have a nice day.

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