digital privacy at risk under modern self-incrimination jurisprudence

Late last year I read some interesting reporting from BBC about privacy in the digital age. The case at issue involved the state of Florida compelling an alleged voyeur to reveal the lock code of his iPhone which had been seized with probable cause. The defendant refused, citing his Fifth Amendment privilege not to incriminate himself, but a Florida appeals court has ruled that the privilege could not have been invoked to block surrender of the code.

bbc stock footage never looked so corporate and scary.

That’s an interesting result by itself; though, as a state-level appeal, that decision only has controlling precedent (for now) in Florida. But the BBC reporting really caught my attention for revealing some of the rationale of the appeals court’s decision, authored by Judge Anthony Black, in the story’s second half:

Judge Black referred to a famous Supreme Court case, Doe v US 1988, in which Justice John Paul Stevens wrote that a defendant could be made to surrender a key to a strongbox containing incriminating documents but they could not “be compelled to reveal the combination to his wall safe”.

“We question whether identifying the key which will open the strongbox – such that the key is surrendered – is, in fact, distinct from telling an officer the combination,” wrote Judge Black. “More importantly, we question the continuing viability of any distinction as technology advances.”

It happens that Justice Stevens was a favourite of mine before his retirement from the bench in 2010, and in fact this blog reviewed his 2014 book detailing his proposed constitutional amendments. I understood him to be a left-leaning civil libertarian, so it was surprising to hear an opinion of his cited to diminish the reach of one of the pillars of the Bill of Rights. I found the Doe opinion to be a quite interesting exercise in linguistic gymnastics, particularly, as Judge Black noted, amid the rapid advance of technology and the numerous and contentious questions about privacy that it has created. But beyond that, the case history led me down a 60-year-long rabbit hole of jurisprudence that I believe serves as a cautionary tale of how the Court can get it very wrong and the dramatic effects it can have on basic rights. With great care taken to exclude superfluous detail, I summarize that epic journey for you here.

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Jonathan Chait’s Nonsensical “Case” Against Bernie Sanders

Jonathan Chait, a smug, center-left blogger of some note among Democrats and moderates, recently weighed in on the Democratic primary. The article, with the self-congratulatory title “The Case Against Bernie Sanders” is worth exploring in some detail because of its bad logic, exaggerated arguments, and extreme cynicism. Ultimately, no one should be convinced by his “case.”


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Washington Referendum Measure 74: The Righteous Case for Marriage Equality

I’m a dedicated but lazy citizen, so it was only this weekend that I got around to reading the literature presented in the Washington State voters’ pamphlet concerning Referendum Measure 74, the gay marriage bill. The measure was ratified by the legislature, but sufficiently many assholes petitioned for a referendum that it now requires approval from the People. Per the ballot:

This bill would allow same-sex couples to marry, preserve domestic partnerships only for seniors, and preserve the right of clergy or religious organizations to refuse to perform, recognize, or accommodate any marriage ceremony.

The state legislature passed and the voters approved the so-called ‘Everything but Marriage’ bill in 2009 that equated domestic partnerships with marriages in every respect except the terminology. That’s obviously very stupid since a rose by any other name would smell as sweet, so don’t dick around with names in the first place: call a rose a rose. It follows that R-74 is a no-brainer, but what really struck me was the stark contrast between the arguments for and against its passage reproduced in the voters’ pamphlet. It is that juxtaposition more than anything else that has solidified my understanding that this bill is not only necessary and proper; but that opposition to it is the basest, most detestable position of any on the ballot this year.

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Prez Debate II: The Wrath Of Mitt

If there was one conclusion most of the pundits drew from the first presidential debate, it was that Obama was functionally asleep and let Romney walk all over him. If there was a second conclusion, it was that Jim Leher was functionally asleep and let Obama and Romney walk all over him. So it isn’t surprising, especially after announcing that it would be the case, that Obama was much more aggressive and challenging for this match-up,  the first and only Town Hall-style debate we’ll see this election. Romney must have known this, so he upped his game as well, and tensions ran high. Obama won the debate by being engaged, articulate, and right on the issues. But he got help from Romney, who emphatically lost it by over-correcting and quite frankly embarrassing himself.

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Barry v Mittens, Round the First

You might not have noticed since it was pretty dull and a lot of other things were happening, but the Sitting Decider and some asshole Mormon upstart spent an hour and a half talking about basically nothing last night, the first such exercise in extemporaneous theatre of a scheduled series of three.

As is my wont, I’m going to talk a little about it.

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the TSA is a joke

It was my pleasure to travel through airport security earlier this week in order that I could board a plane. With an hour to go before it was due to take off, I was slightly apprehensive about the longish line snaking away from the nudie scanners. Luckily it all worked out, but I was quite surprised while I waited to encounter a sign advertising yet another seemingly arbitrary TSA rule:

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important week for SCOTUS, health law, administration

Nina Totenberg and others reported in NPR’s health blog Sunday that the Supreme Court is very soon to hand down its decision in the controversial case of the Affordable Care Act. Indeed, it appears the decision has been scheduled to be given on Thursday. At issue are four distinct questions. The first was whether the suit, brought by 20 states against the federal government, can even be decided now by the Court since an 1867 law regarding taxes might be prohibitive. It appears to be the case that the justices feel that they can. The second, and most interesting to me and it seems most other people, is whether the so-called “individual mandate” provision to purchase health insurance or be assessed a fine is allowed by Congress’s broad powers to regulate interstate commerce. The third concerns whether a vast expansion of Medicaid mandated by the law is impermissably coercive on the states, who bear the responsibility of that program’s administration. Finally, the fourth is the resulting question of severability: if any part of the law should be found to be unconstitutional, how much of the rest of the law can be permitted to stand?

I wrote much earlier this year, among other things, about how this decision will be both interesting and significant. At first I thought I would wait until the ruling to talk about the case in any detail, but instead I’ll now attempt to predict how the Court will rule on this question and analyze a few other significant rulings handed down this week.

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