Category Archives: Judicial system

Mother may I?

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You walk outside one morning and witness your neighbor struggling to move a tree that has fallen across his driveway. Do you (a) ask him how you can help or (b) compose a letter to request a hearing before the town council in order to request permission to assist your neighbor? You request contains a detailed outline of your proposed methods of assistance whereupon you dutifully wait 2-3 weeks for a response back from said council. If you’re like 99.999% of people on this planet you go with (a). And that right there is what the free market is all about. People identifying a problem encountered by their fellow man, visualizing a solution, and then offering that solution If the solution is desired then people will show their acceptance by voluntarily engaging in trade in order to obtain said solution. If not desired then no such trade takes place.

But that is not the world we live in. There is no free market in the US or anywhere else in the world. There must be a defect in humanity that inflicts some with the instinct to force their ideas of what is normal or right or fair onto those that happen to be in proximity to them. In other words, we have a “permission market” – if you wish to solve a problem and offer the solution to the world you must first seek out the permission of these self-anointed guardian and kiss their ring on bended knee.

A recent example of this ring kissing involves a company “VidAngel” – a streaming service brought to market by two brothers who wanted to stream movies to their home with certain profanity or violent acts omitted. They searched high and low and when they couldn’t find anyone offering such a service, they started one! As an aside, this is how many such innovative companies get a start – unable to find a solution to a problem the entrepreneur solves the problem and then markets it to others with the same problem. CEO Neil Harmon recently explained on the Tom Woods Show podcast that when they started out they knew there would be copyright challenges to what they were attempting (witness the fall of Aereo, another innovative problem solving company) so they made sure to strictly follow the letter of the law. Their service, they contend, falls under the Family Movies Act, which gives consumers the right to filter movies they own – on videotape. So in order to comply with that antiquated provision they actually purchase on the consumer’s behalf a DVD or Blu-ray disc that is dedicated to only that consumer. Then their software allows the consumer to selectively remove certain words or content. Don’t like the “f” word – then delete away! Ok with profanity but don’t want violence? No problem! They were not secretive about their business. They requested licensing arrangements from all the studios. Some granted a license, but for those that did not, they followed the disc per consumer route. Then the big three (Disney, Warner Bros and Fox) decided to put an end to their little endeavor – not alone mind you, but with the help of the United States Federal Government. You see government is here to protect our rights, even the imaginary ones (copyright, trademark, patent and before that, slavery). VidAngel has now been shut down due to an injunction issued from U.S. District Court in California.

Even in the permission market it’s not enough to ask and get permission, you are also subject to the mercurial whims of those in power. Almost enough to make one have second thoughts about starting a business…nah… regulatory uncertainty would never have an impact on business starts and job growth.

Living Under the Mirage of Law

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Respect for “the law” held by liberals and conservatives alike is entirely a consequence of their own personal stance on its validity. For example, the Supreme Court found in Citizens United that free speech protection does indeed extend to corporations, but since that didn’t sit to well with liberals (who are eager to selectively muzzle corporations they disagree with) they applaud any attempt to undermine that decision. The second amendment guarantees a right to individual gun ownership, but again liberals will hardly shed a tear when local officials defy that right with onerous restrictions. Likewise, Roe v. Wade and Obamacare are settled constitutional law (according to the Supreme Court) and yet conservatives will do whatever they can to subvert the spirit and intent of these laws. With conservatives the cognitive dissonance of unconditionally supporting cops (even when throwing grenades into a baby’s crib) but opposing taxes creates unexpected results. Last year Eric Garner chose to ignore New York’s laws regarding selling untaxed cigarettes and paid the ultimate price for his impertinent obstinacy in not bending to the will of the state (death by cop). And what did the putatively tax-averse conservative do? Rather than commending his act of tax-rebellion, they hid behind a wall of cowardice in proclaiming, “well, the law is the law and it must be followed.” I guess they’re only opposed to onerous taxes that affect them.

Religious conservatives are now all too happy to do a full 180 on the principal of “follow the law” and heap accolades upon someone who defies the law – because they happen to agree with her. Kim Davis, clerk of the court for Rowan County Kentucky, is being held up as a noble heroine for her staunch refusal to issue marriage licenses to gay couples. There aren’t many things one can be sure of in life but of this I am most certain: had the court ruled the other way and we now had a clerk issuing marriage licenses to gay couples in defiance of that decision, conservatives would be quite vocal on the sanctity of the “rule of law” and that officials have a solemn duty to carry out the law despite their own personal misgivings.

At one time the Fugitive Slave Act, Jim Crow, and Japanese internment were law but I dare say you’d be hard pressed to find anyone today who would view people that ignored those laws as being guilty of anything other than heroism. So where does this leave us? If sometimes it really is ok to ignore the law and sometimes it (supposedly) isn’t, then perhaps the problem is not with a societal lack of unwavering respect for “the law” but rather with the laws themselves. This lack of solidarity over what constitutes valid law is merely a reflection of the fact that society is composed of individuals who don’t all agree on everything. That is ok. I have some shocking news: it is possible for people to live together and not be forced to live the exact same way.

Laws of nature cannot be broken; laws of man can. By labeling the latter with the same appellation as the former, society deludes itself into believing the two are equivalent in their capacity to govern human behavior. Man’s laws are that fiction that implies human behavior can be constrained by mere ink. And if ink alone doesn’t work then we now have our excuse to “enforce” its edicts by any means necessary. Law is not protection from aggression but rather an excuse to engage in it – “look, he broke the law, go get him!” Laws against murder, rape, or theft are not what potentially protect us from such acts, rather feedback does. That is to say, contained within the act itself is the basic natural right to reciprocally respond to it (the right of self-defense). The real and certain potential for instantaneous reciprocity is the actual deterrent that keeps criminals at bay, not mere laws.

Rules (laws) are acceptable if one has affirmatively consented to them (and consent does not mean merely being born within invisible walls), but without consent mere ink can not convey the right to aggress against others because they choose not to follow particular rules concerning taxation, social behavior, or other non-aggressive behavior.

There is nothing mistaken in thinking this law or that law is unjust and should be ignored; all non-property rights violation laws are but mere opinion enforced with guns. The real crime here is engaging in the hypocrisy of believing we must live under a rule of law while simultaneously ignoring the laws you don’t like. Don’t be a hypocrite; admit that forcing others to live according to your beliefs is dishonorable and in that moment you will have earned the right to live unmolested by the beliefs of others. If you espouse aggression against others, then don’t come crying when others aggress against you.

Anchors Away!

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Donald Trump has finally brought up a legitimate point in the ongoing debate over illegal immigration (as opposed to his usual economically illiterate xenophobic racially-tinged fear mongering). The courts have long used the 14th Amendment as a justification for birthright citizenship, that is, the notion that one instantaneously acquires US citizenship merely by being birthed within US territory. This interpretation has created the phenomenon known as “anchor babies”, that is, the children of immigrant women (legal or otherwise) who enter the US merely to give birth. By virtue of the citizenship status of the newly birthed, the entire extended family may to varying degrees be granted residency status. Unconditional birthright citizenship (‘Jus soli’, right of the soil) is a peculiarity of the New World. It is almost exclusively found in the Americas. Everywhere else it is unknown or exists only with many conditions. The rest of the world follows a system of ‘jus sanguinis’ (right of the blood) which means that citizenship flows from the citizenship status of the parents. On its face this does seem to be the more practical approach. Would you want your child saddled with the citizenship of some foreign land you just happened to be travelling through at the time of her birth? Indeed that has happened to a number of “accidental Americans” who have never lived in the US but are labeled as tax cheats by the IRS because of an accident of birth location.  Birthright citizenship seems to be primarily a legal artifact found among those former New World countries that sought to rapidly increase populations. In the US the amendment merely codified what was already common law practice at the time while also unambiguously establishing citizenship for former slaves.

Contrary to popular opinion, birthright citizenship in the US is not entirely unconditional. The condition it hinges on is normally ignored as its meaning in modern parlance is somewhat opaque to those without a legal or history background. The amendment states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and The States wherein they reside.” The key clause here is “and subject to the jurisdiction thereof.” So citizenship requires not only that you be born within US territory but that you also be subject to the jurisdiction of the US government at that time. You could only be subject to such jurisdiction if your parents (your legal guardians) were subject to such jurisdiction. At first glance it would seem that applies to anyone in the US, citizen or not. After all, anyone who kills someone or rob them, is “subject” to US laws against it, right? Well yes that is true, but the key word our modern ears need is the one that was obvious and thus unspoken for those in the 19th century. The latent word is “complete” as in “the complete jurisdiction thereof”. “Complete jurisdiction” is redundantly the same thing as “jurisdiction” because both stand in contrast to “partial jurisdiction”. Partial jurisdiction means one is subject to laws against murder, theft, etc., but likewise are not subject to laws related to the obligations of citizens. A foreigner (or more legally precise, an alien) is a citizen of another state and thus by virtue of that foreign allegiance cannot be subject to the complete jurisdiction of the US. (e.g. an alien is not required to serve on a jury, may not vote, may not be drafted, etc).

So, in short this means the proper interpretation of the “citizenship” clause of the 14th amendment is that if both parents are already citizens of another state (owe allegiance to another state, thus not subject to the complete jurisdiction of the US) then one does not acquire US citizenship at birth. If the parents are stateless (or one is orphaned) then one could acquire US citizenship. The proof that this is the proper interpretation is found both in practice and via first hand accounts on the drafting of this amendment. In practice, American Indians, who were not subject to the complete jurisdiction of the US but who were nevertheless born in US territory, were not made citizens after this amendment was passed. Indeed it was not until 1924 that the Indian Citizenship Act made them US citizens. If the 14th amendment were interpreted the way it is today then no such law should have been necessary. Clearly there has been a change in interpretation. But don’t take my word for it, let’s hear what the author of the citizenship clause, Senator Jacob M. Howard (MI) had to say on it in 1866: “This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

Supreme Kool-Aid

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The Supreme Court rendered two landmark decisions this past week. For those short on time I will parse them in the simplest of terms. In King v. Burwell (the “Obamacare” case) the Court decided that “established by the States” can mean exactly the same thing as “not established by the States.” This ranks right up there with Bill Clinton’s inability to parse the meaning of the word “is.” This linguistic pretzel betrays the court’s predilection to save Congress from themselves. The court regards Congress as a parent would a child who keeps getting into trouble: “aw, shucks silly rabbit, you mean you didn’t anticipate that a poison pill clause aimed at punishing the citizens of recalcitrant states might blow up in your face if those states remained recalcitrant? – well, don’t you worry, old Uncle Roberts will fix that right up for you with his magical judicial word-redefiner.”

In the next decision, Obergefell v. Hodges (the “gay marriage” case) the Court affirmed the principle that we should heap accolades upon our wise overlords when they deign to stop interfering in our lives. Apparently we need the state to stop other states from doing bad things – but who will protect us when the federal state does bad things? State regulation of marriage makes about as much sense as state regulation of healthcare.

Right about now the left is feeling pretty smug and self-satisfied with these decisions. But the right has had their day, and they will once again. That’s just how our system works – the lives of 300 million people must conform to the opinion of nine random people in black robes while each side cheers for their “team.” Both sides trumpet the merits of democracy – until their side loses. When that happens they are both all too happy to jettison the “democratic” results and substitute it with the opinion of 9 monarchs.

The fact that so many wait in eager anticipation for a sign of white or black smoke wafting from the judicial chimney of the Supreme Palace betrays something rather sinister. Nearly all of us are part of a cult: the cult of the State. The figurative “kool-aid” of state-love is doled out year after year at, gasp!, state run schools. There is nearly no defense against this mountain of propaganda. We grow up believing our rights come from government and therefore when the wise sages of that august institution speak, we must pay heed.

Consider a different perspective: The US Government is the functional equivalent of a private corporation that has monopolized certain segments of the economy. It maintains its market dominance and its customer base (us) through a combination of brainwashing during childhood, the illusion of control in adulthood (voting), and the for those that would rebel against paying for products it forces upon us, the overt threat of violence from a massive military complex. Cast in that light we should see that the internal policy making procedures of this company should have as much relevance to one’s life as would the operational policy decisions made at Apple, Walmart or Payless Shoe Stores. Who cares what 9 random people think? How is it that we not only allow – we welcome – other people, (the President, Congress, or the Supreme Court) telling us how to run our lives? If you want to participate in a socialized insurance system called “Obamacare” fine, be my guest. That has as much relevance to my life as does your decision to buy car insurance from Progressive and not State Farm. However, I choose to not purchase the products of U.S. Government, Inc – Social Security, Medicare, Obamacare. I also see no need to ask permission from one of its wholly owned subsidiaries (Georgia, Inc.) to get married, get a job, start a business or educate my children.

Now some might argue that I have a “social responsibility” to purchase some products (“public goods”) and that gosh-darn someone must force me to do so if I won’t. In reality, there is no such thing as “public goods” – this is simply a name that emerges from sloppy and lazy thinking from those that can’t fathom how anything other than violence could bring such products to market. And for those inclined to cite “the roads” please bear in mind it only constitutes about 1% of government spending.

I will close with this one tidbit of irony. The determination of the constitutionality of laws by the Supreme Court (“judicial review”) is itself unconstitutional. You can scour the Constitution but you will not find the authority for the court to engage in this practice.  This notion of “judicial review” was born out of the court’s ruling in Marbury v. Madison in 1803 as a matter of expediency and we’ve suffered the consequences ever since. That the dictum “the ends justify the means” guides this court’s decision should come as no surprise considering its power to render these decisions flowed from the same principle.

Knock, knock – Who’s there?

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A pair of nearly identical bills (SB 45, SB 159) has been introduced this session into the Georgia legislature concerning “no-knock” warrants. Apparently all those no-knock raids we’ve heard about recently in Georgia (a toddler nearly killed in Habersham County, the murder of David Hooks in Laurens County) were illegal. Under Georgia law (O.C.G.A 17-5-27) officers must give “verbal notice” before force can be used to execute a warrant. Huh. Imagine that, words on a piece of a paper didn’t stop those in power from doing whatever they wanted – and since there was no accountability in either case, apparently the current law prohibiting no-knocks is of little practical value. So, let’s see, how could we possibly remedy this situation? I’ve got it – make no-knock raids LEGAL! Now when officers engage in this practice they won’t be breaking the law anymore, problem solved.

Why stop there? Why not make rape, murder, and theft legal? That would lower the crime rate in Georgia to the point where there would be no need for no-knock raids. Oh, right that wouldn’t help because no-knock raids aren’t about catching actual criminals (rapists, murders, and thieves). No, they are about nabbing the low hanging fruit of drug “crimes” where mere possession of “stuff” is all that is needed to close a case. Smash, grab, arrest. Wash, rinse, and repeat. Detective work is so tedious – this is much easier. I have a suggestion for these politicians. If you are so keen on legalizing that which was formerly illegal in order to control it better, then try this: repeal all drug laws. Now there is no need for no-knock warrants.

Now, just to clarify, both bills’ proponents claim the bills prohibit no-knock raids. One (SB45) even goes so far as to call itself “Bou Bou’s Law” (after the toddler that nearly had his face blown off). Because both bills would greatly increase the probability of another “Bou Bou” type incident, this particular appellation is about as disconcertingly insulting as naming a rape legalization bill a “Women’s Rights Law”.

What the declaration giveth (“No search warrant shall be issued which contains a no-knock”), the exception clause taketh away (“unless the affidavit or testimony supporting such warrant establishes by probable cause that if an officer were to knock and announce identity and purpose before entry, such act of knocking and announcing would likely pose a significant and imminent danger to human life or imminent danger of evidence being destroyed.”)

“Significant and imminent” are the weasel words that will build the foundation of every manufactured excuse to engage in this practice. Honestly, if the degree of danger is that serious do you really think an extra 5-10 seconds will provide an absolute measure of safety? If the danger level is truly “imminent” no one should be entering, announced or unannounced, if officer safety is the primary concern. Surround and siege is a much less dangerous alternative for all involved. Likewise, the phrase “evidence being destroyed” is code for “drugs flushed down the commode”. Thus upon this rock one may build the excuse for every drug case being a no-knock case.

Opposition to these bills is not “anti-cop”. Quite the contrary. Officers tend to get shot when they break into people’s homes unannounced. That’s just a fact. The goal should be to eliminate such raids, not increase their use through legalization and specious pleading of “oversight.” The only situation where a no-knock raid would ever be warranted is if someone’s life inside the residence is in danger (think serial killer situation). But to risk the lives of officers and innocent bystanders inside in order to potentially get a few grams of dope off the streets – that is simply reckless and the Georgia senate should be ashamed of themselves for attempting to codify under the color of law this outrageous practice. Please contact your Georgia Senator to voice opposition to these bills.

Ferguson is the New Black

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I was shocked and saddened, as most were, to read about the shooting death of Michael Brown in Ferguson, Missouri last week. What I was not, unfortunately, was surprised. Stories of police overreaction to the most innocuous of infractions (or none at all) are seemingly no longer the exception in a society where mere behavior, words, or possessions are sufficient evidence of criminality that is too frequently repelled with lethal force. The trivial nature of Brown’s misdeed (walking in the street) coupled with the rapidity and disproportionate response of the officer involved (6 bullets, including 2 to the head!) was illustrative of the small amount of daylight between life inside and outside the prison system.

I (fortunately) lack any direct experience with the prison system; however, what I have read is a realistic portrayal of that system can be found in the television series “Orange is the New Black” (warning: definitely not family friendly). In this series the main character is incarcerated (as are many others) for being involved in one of the many victimless crimes related to the “war on drugs.” The prison depicted is a federal, minimum-security women’s prison. But even under this lightest of all prison environments, life is clearly a stressful and miserable experience, in no small part due to the capricious and vindicate nature of the guards coupled with the lack of autonomy over ones life.

Naturally this is what one would expect; we all know prison is not supposed to be a vacation. It is supposed to be miserable so that it may act as a deterrent. And even when it is not a deterrent then we the public can still rest satisfied in knowing the “bad” people are being appropriately punished. But as it becomes clear that the vast majority of these prisoners are party to “crimes” with no victim, it makes the US prison system less like Dostoyevsky’s Crime and Punishment and more like Stalin’s Gulags. But I digress.

The most frightening aspect of the TV series is not its portrayal of life within prison but rather the realization that we ourselves live in a much larger prison known as the State. This prison has no escape, no furlough and no time off for good behavior. Consider: in prison perceived disrespect toward a guard or failing to immediately and mindlessly follow their directives is met with an immediate and violent response. The same fate is not uncommon for any of us who might fail to immediately comply with the “lawful order of a police officer.” In prison the guards can search the prisoners or their living space at any time for any reason. This is likewise true in many parts of the country under “stop-and-frisk” laws or with the now infamous no-knock-raids. In prison the mail correspondence and voice conversations are closely monitored. Outside prison we have the NSA to take care of that task. In prison the inmates must plead to their intermediaries (the administrative staff) for permission to engage in heretofore-unapproved activities. Outside prison we must plead with our intermediaries (elected officials) for permission (licensing) to engage in an activity so that we can avoid violent reprisals from the state. In prison the belongings of any inmate can be confiscated at any time for any reason. Outside prison our property may be confiscated (civil asset forfeiture) for nothing more than baseless whims of suspicion.The dream of the statist is to push society toward being more, not less, prison like. The statist wants nothing more than to have the power to force all to conform to their vision of the ideal society: behave this way that, not that, eat this, not that, run your business this way, not that, express yourself artistically this way, not that, smoke and drink this, but not that. Where else but in a prison are such visions of the ideal society possible through strict enforcement?

Many might say “hogwash” to all this. They’ll insist they don’t feel like prisoners, they can do whatever they want, whenever they want. That may be true, for some actions, but even prisoners may do things without asking permission or running afoul of a guard; but that does not make them free. They are simply the pinball that has not yet hit the wall. Inside prison the walls are narrow, outside prison the walls are wide – but both have walls. If you remain unconvinced and still need proof that you are but a mere serf living on the master’s (that is, the state’s) land then consider the truth found within an instinctual and visceral emotional response. What do you feel in that moment when you see flashing blue lights in your rearview mirror?

Moneyball

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A US District Court judge recently ruled that the NCAA can not prohibit student athletes from receiving remuneration that goes beyond scholarships and related costs. The ruling was based on the argument that the NCAA was violating antitrust laws (trust = a small group of individuals conspiring to limit options of its customers or members). That such antitrust pronouncements emanated from a federal court (itself a monopoly) is no less ludicrous than if the KKK were to condemn the racism of the Aryan Brotherhood. Perhaps the people should file an antitrust lawsuit against the Federal Government. The executive, judicial, and legislative branches regularly conspire in trust-like behavior in order to deprive us of our rights. If we were permitted to choose from whom we will rely on for governance (without imaginary border constraints), then, and only then, could we live freely.

Apropos voluntary governance; the NCAA is a non-geographically constrained, self-governing, voluntary organization whose existence is based on the concept that those with common goals and interests can better achieve those goals through cooperation. In many respects the NCAA operates like any government. It has a legislative body that passes “laws” that its members must adhere to, it has a dispute resolution process (judiciary), and it has a chief executive (president). There is, however, one crucial difference; it relies on voluntary membership and voluntary dues payments. It cannot force schools to join merely because other member colleges happen to be nearby. All schools voluntarily join and in so doing agree to abide by its rules. Also, unlike state governments, it has competition (NAIA, NCCAA, USCAA, etc) in its metaphorical backyard. But unlike state governments, they cannot and do not use violence to inhibit such competition. Somehow this crazy, anarchical voluntary system has worked for over one hundred years! Imagine that, anarchy does work!

Or rather it works until the top gang (the Federal Government) decides it has a say concerning what the serfs do on its “turf”. You see the Crips, err, I mean the Feds decided monopolies/trusts are bad and must be stopped (even though monopolies cannot exist in a free market – only in one that suffers state interference). In order to stop them they pass “laws” that they interpret to arrive at whatever outcome supports their ideological stance du jour. Today’s seems to be “fairness.” It is only “fair” after all to allow student players to be paid. Only a troglodyte would oppose fairness. The substance of this conflict is the usual sort of economic interventionism (e.g. minimum wage, worker’s “rights”, etc) one can expect of the state. The actors may change but the narrative is always the same: Party A and Party B came to a mutually agreeable relationship, however Party C thinks that Party B is too stupid or weak to know what is best for them.

Whether students should be paid or not is irrelevant. This is not a moral issue; there is no right or wrong answer because there is no rights violation. All relationships are voluntary (NCAA, schools, students). The only ones that get to decide what is best are the students and the schools. If a school wants to pay an athlete, then they must weigh the costs and benefits of leaving the NCAA. If enough students demanded pay, then the rules would change. The fact that the rules have not changed (other than this recent external one) suggests that the vast majority values the free education and experience more than they value the other things they could be doing. In other words, if someone offers you $10 for something that you value only at $5, then it is ill advised to demand $50.

Although this issue is often cast under an egalitarian light, this ruling will result in a rather perversely inegalitarian outcome. The 1% (of athletes) will attract the lion’s share of money to themselves leaving that much less for others. On the margins fewer athletic scholarships will be given, thus harming those most in need. To paraphrase H.L. Menken, “[the student athletes] know what they want, and deserve to get it good and hard.”

Tootsie Pop Justice

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Amazon.com has been accused by the Federal Trade Commission of permitting unauthorized in-app purchases by children. The FTC has filed a lawsuit against Amazon in U.S. District Court on behalf of parents affected by the activity of their children. So, apparently we need the government to protect us from our own children. This case exudes a breathtakingly absurd lack of parental accountability. Equally bad is the sycophantic credulous reporting on this case by the state media Apparatchik (in this case USA Today). Their putatively neutral reporting is laced with subliminally opinionated phrases that imply Amazon duped parent into using their children as pawns in some grand scheme. For example, USA Today says Amazon “willingly allowed” kids to make purchases within apps. Notice the clever shift of responsibility here? This phrase implies it was Amazon’s responsibility, not the parents, to be the final arbiter of their children’s behavior. No, Amazon did not “allow” the purchases. The parents allowed the purchases when they handed their unlocked and credit card enabled device over to their child. This is no different than parents handing their child a wad of cash, pointing them in the direction of the toy store and then telling them to be frugal. Meanwhile the parent wanders off somewhere else and then becomes enraged at the toy store when they find out little Johnny spent all his money there.

But, even though it was not Amazon’s responsibility, they (as well as the other two players in this market, Apple and Google) implemented some basic gatekeeping controls to mitigate (yes mitigate, not 100% eliminate all possibility of) such undesirable purchases. They required the entry of the account’s password even on an already unlocked device (the presumption being the child did not know the password but was merely handed an unlocked device by the parent). But you know what? The problem persisted. Which means parents were telling their children the password so they could make some purchases. At this point even if one were to try and make an argument that the companies had some culpability, however tenuous, that argument is completely shattered at this point. If you give your child your password for desirable purchase A then you must know there is nothing stopping them from making undesirable purchase B other than yourself. This is the classic case of the programmer’s conundrum when dealing with user feedback: I want it to work this way, except when I don’t. Stated differently the parent says: I want my child to make purchases I approve of without pestering me for a password every two minutes, except when I don’t, then I want the device to magically know I don’t approve of the purchase.

But even here Amazon did not stop in trying to please the consumer. They responded to complaints and implemented requested controls to try to solve the problem (all without any threat of state action). They implemented dollar value thresholds that required password entry, then they removed the value threshold entirely but still allowed for a short time window where re-entry of the password was not required. This was to avoid the annoyance of trying to buy five things all at once and having to enter your password five times in a row. But of course the problem persisted. Why? Because parents had already given their child the password! Outcomes did not change because the root cause of the problem remained: the parents.

And so now the parents, not recognizing their own culpability, have enlisted the aid of the state to force Amazon (after having already done so to Apple ) to protect them from their own inability to parent. The real loser in this case however is everyone else who uses similar smart-devices. We will have to endure increasingly annoying draconian licks to get to the center of the digital Tootsie Pop.

Order at the Border

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This past week the Supreme Court of the United States (SCOTUS) issued a ruling in Riley v. California that dares to uphold the remains of a much abused 4th Amendment. The court ruled that the police may not search the cellphone of someone placed under arrest (often for offenses as trivial as “disobeying a lawful order” or “disorderly conduct”) without first having obtained a search warrant. In the digital age the principal of good design “form follows function” no longer is guaranteed. Digital function is not deducible from physical form; the sublime masks astounding capabilities. The contention was that since traditional wallets can be searched it must follow that anything approximately the same size as a wallet can be searched. A cellphone and a wallet may be comparable in size but that is where the similarities end. The rules that allow the police to search a defendant after an arrest dictate a limited spatial area (typically directly under the suspect’s direct control e.g. a car). So at first blush it might seem that if a cellphone is within that area it is fair game. But that analysis ignores the ways in which technology can redefine notions of spatiality. Cellphones (or the “smart” ones anyway) are not mere digital copies of the old-fashion wallet. They are but a keyhole onto a warehouse of information. Packed into these devices is the equivalent of what formerly would have been contained in ones home years ago; in essence they do indeed house ones “papers, and effects” which the 4th Amendment specifically protects from warrantless searches. Chief Justice John Roberts summarized this idea in his ruling:

 “With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. …Our answer to the question of what police must do before searching a cellphone seized incident to an arrest is accordingly simple—get a warrant.”

 

However, as heartening as this decision might be, there still remains today an egregious violation of basic 4th Amendment rights that has time and again been upheld but the SCOTUS: border searches. In the court’s opinion (United States v. Ramsey (1977)) searches made at the border are de facto reasonable because they occur at the border and thus is any conflict with the 4th Amendment extinguished with a mere definitional twist. Border searches do not require suspicion nor a warrant; anything and everything may be legally searched and confiscated for no other reason than that one is crossing an imaginary line.

Even if one is inclined to believe that such border searches are necessary to keep out criminals and “illegals,” what may surprise you to learn is that the “border” is defined as 100 miles inland from the actual border (aka a “Constitution Free Zone” that encompasses two-thirds of the US population). What that means is that anyone, anywhere within 100 miles of a US border may be legally detained and searched for no reason at all by the DHS or ICE goon squads. They may seize electronic devices (phones, laptops), copy them wholesale, return them, and then rummage through one’s personal information at their leisure. That this does not currently happen routinely is small comfort; there is not a single barrier to the legality of such behavior. If you are within 100 miles of the border you are fair game. You may think you have nothing to hide, but do you really want total strangers looking at your photos and reading your emails? Secondarily, there is nothing objective about the 100-mile value – it could be changed to whatever arbitrary value our wise overlords deem necessary to maintain, “order at the border.” We are just one crisis away from a 250 or 500 mile border zone.

So while we may applaud the SCOTUS for their recent affirmation of 4th amendment protections, let us not forget to jeer them when they continue to permit those same protections to vanish at the border.

Speech, Money and Means

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Elections, campaigning, voting; these are all creatures of the state. To the extent the state itself is illegitimate, it is wasted effort to debate the legitimacy of internal rules of an illegitimate entity (a bit like arguing over the moral distinction between thieves that pick locks vs those that break down doors). So discussions concerning whether the government should limit political donations to this amount or that amount is entirely academic; there is no right or wrong answer given the larger context that compelling all to accept the outcome of an election is the true affront to individual rights (that is, the right to choose with whom one will associate).

With that said, however, I would like to touch on a common philosophical misconception that has been reignited with the recent Supreme Court decision in McCutcheon v. FEC. In this decision the Supreme Court struck down limits on total donation amounts to candidates and political committees (while retaining certain other limits). The predictable knee-jerk response then ensued from the progressive media outlets: Unrestricted giving means our democracy is for sale! More money in politics means only the well-funded candidates will win elections! Money is not speech! Ok, stop right there. The first two assertions are at least plausible (although plenty of examples abound where the more well-funded candidate lost), however denying the essential connection that money and speech have is to engage in intellectual dishonesty

What does the right to free speech entail? (Before I continue, for clarity’s sake “speech” is shorthand to describe any action that externalizes the thoughts or ideas of an individual). Does free speech mean we should be able to speak for free? No. It means that it is impermissible for anyone (which includes government) to aggressively interfere with an individual’s exercise of speech (assuming the speaker has not voluntarily agreed to limit that right under contract). Conversely it does not obligate anyone to assist an individual in his speech efforts. That is, speech is a negative right. If one wishes to spread their speech more efficiently, they may employ their own means (money, printing press, radio station, etc.) or they may ask others to assist them in their effort by providing them with those same means.

Speech is a means to an end. That is to say, we exercise speech in order to achieve some end. Means themselves often require other means to achieve them. For example, I buy gas (means) to use my car (means) to drive to work (means) to earn money (means) in order to buy food (means) to keep me alive (end). In a campaign the candidate’s end is to make the public aware of his candidacy and persuade them to cast their vote for him. This is done through speech from the candidate to the public. Speech is most efficiently disseminated using tools (print, radio, TV, etc) and those tools can often only be obtained via monetary trade. So, perhaps money is not literally speech in the same way that gasoline is not literally food, but in both cases the former is a direct link in the causal chain of means to achieve the latter end. To deny the significance of money as it relates to speech is to deny the legitimacy of utilizing any means to achieve some end.

For those concerned with the possible distorting effects of money in politics I would suggest ending the fixation on limiting money and rather focus instead on what the money is buying: power. If we commit to limiting the power of government over our lives, we will find the appeal of purchasing such impaired power likewise diminished.