Speaking Of Privacy…

I’ve never been particularly concerned about my data privacy–at the university, the tech support people drove me nuts with their log-in protocols and automatic encryption of “sensitive” emails. Like most Americans who pretty much live online, buy online and communicate online, I recognized that there is a tradeoff between convenience and some degree of exposure, and–again, like most Americans–it was a tradeoff I was (and still am) willing to make.

Government surveillance is another matter entirely.

Governing Magazine recently reported on activities being conducted–mostly surreptitiously–by ICE. Those activities are truly dystopian.

Immigration and Customs Enforcement has crafted a sophisticated surveillance dragnet designed to spy on most people living in the United States, without the need for warrants and many times circumventing state privacy laws, such as those in California, according to a two-year investigation released Tuesday by the Georgetown Law Center on Privacy & Technology.

Over the years, privacy law experts and civil rights activists and attorneys have accused ICE of overreach in its surveillance tactics directed at immigrants and Americans alike, but the Georgetown report paints a picture of an agency that has gone well beyond its immigration enforcement mandate, instead evolving into something of a broader domestic surveillance agency, according to the report, called “American Dragnet: Data-Driven Deportation in the 21st Century.”

The report outlines the extent into which ICE has gone in order to form a large-scale surveillance system that has reached into the lives into ordinary people living in the U.S. Skirting local laws intending to protect individuals’ privacy, the agency has turned to third-party outfits— utility companies, private databases and even the Department of Motor Vehicles in some states — to amass a trove of information from hundreds of thousands of Americans and immigrants to target people for deportation.

This surveillance network isn’t some penny-ante operation; the article says that ICE spent “an estimated $2.8 billion between 2008 and 2021 on new surveillance, data collection and data-sharing initiatives.

ICE was established after the Sept. 11 attacks, and given sweeping powers to fight terrorism and enforce immigration law. Since its formation, the article tells us that without much oversight, the agency has collected data on hundreds of millions of Americans. It has frequently been accused of crossing legal and ethical lines to “weave a vast surveillance system,” according to the Georgetown report.

“I was alarmed to discover that ICE has built up a sweeping surveillance infrastructure capable of tracking almost anyone, seemingly at any time. ICE has ramped up its surveillance capacities in near-complete secrecy and impunity, sidestepping limitations and flying under the radar of lawmakers,” said Nina Wang, policy associate at the Center on Privacy & Technology and a co-author of the study.

Anti-immigration Americans who might be tempted to shrug this off because it’s “only targeting illegal immigration” shouldn’t be sanguine. Thanks to the methods being used to collect the information, the agency has data on pretty much anyone who has ever applied for a driver’s license, driven on the nation’s roads, or contracted with their local utilities to get access to heat, water and/or electricity.

Among other findings, the report documents that ICE has drivers’ license data for 3 in 4 adults living in the U.S.; has scanned at least 1 in 3 of all adults’ driver’s licenses with face recognition technology; can track the movement of vehicles in cities that are home to nearly 3 in 4 adults; and can locate 3 in 4 adults through their utility records.

What was that famous quote from Martin Niemoller? “First they came for the socialists…”

The fact that one federal agency has clearly “gone rogue” would be less chilling if the United States wasn’t in the midst of a concerted effort by the Right to replace democratic norms with a Neo-fascist regime. The GOP has been transformed in to a White Nationalist cult that is all too ready to embrace Storm Trooper methodologies, and while its MAGA base represents a distinct minority of Americans, thanks to gerrymandering, the Electoral College and other antiquated electoral systems, it’s able to exercise far more power than its percentage of the vote would otherwise allow.

Worse still, we find ourselves in this position at a time when we no longer have a Supreme Court majority willing to protect settled precedents and  the rule of law.

If Donald Trump (or one of his clones) wins the Presidency in 2024, do you have any doubt that he would make use of the ICE surveillance data to stamp out dissent and punish his opponents?

Reading this report in the wake of the Buffalo massacre raised another chilling question: why hasn’t ICE used its data to fight domestic terrorism? How deeply are MAGA bigots already ensconced in this clandestine agency?

How far down the road to autocracy have we come?

 

A Second Civil War

I have been brooding over the implications of the racist massacre in Buffalo.

The facts are not in dispute.A teenage White Supremacist drove over 200 miles so that he could kill Black people who would be shopping in a supermarket located in a predominantly Black neighborhood. He killed 10 people and wounded three others. Reports tell us that this particular mass shooting was the deadliest in the United States so far this year.

This year. We’re 19 weeks in, and according to NPR, America has already had 198 mass shootings.

The 18-year-old shooter, Payton S. Gendron, livestreamed the gruesome attack as he mowed down shoppers and store employees.

Why would an 18-year-old drive to a neighborhood where he knew no one, specifically in order to kill people who had done him no harm? According to multiple reports, a manifesto he had authored and posted online repeatedly invoked the racist charge that white Americans were at risk of being “replaced” by people of color.

The New York Times newsletter described his entrance into the supermarket.

Around 2:30 p.m., as shoppers filled the Tops supermarket, the suspect arrived wearing body armor, tactical gear and a helmet with a video camera attached. He carried an assault rifle with an anti-Black slur written on the barrel and began firing in the parking lot. Three victims were killed outside, and one was wounded.

And as to motive…

The attack appeared to be inspired by earlier mass shootings motivated by racial hatred, including a 2019 mosque shooting in New Zealand and a massacre at a Texas Walmart that same year, according to the manifesto.

In chilling detail, the document outlined a plan to kill as many Black people as possible, including the type of gun to use, a timeline, a specific parking spot and where to eat ahead of time.

Gendron wrote that he chose the area of the supermarket because it was home to the largest percentage of Black residents near his home in New York’s largely white Southern Tier.

So here we are. Some 80% of voters want additional controls on gun purchases, but  rather than imposing reasonable restrictions or improving background checks, extremist politicians in states like Indiana continue to relax existing gun regulations. That permissiveness allows mental cases, domestic abusers and avowed racists access to weapons that should be limited to military use, permitting deranged shooters to inflict far more death and destruction than would otherwise be possible.

According to one report, Gendron was very heavily armed. He had tactical gear, a bulletproof vest and a tactical helmet, along with the camera that allowed him to livestream what he was doing. His firearms included a semi-automatic rifle, a hunting rifle and a shotgun, which were all purchased legally.

As stupid and unforgivable as Americans’ gun fetish is, it is White Supremacist hatred that is most horrific. This twisted young man killed people based on the color of their skin. These weren’t people he knew, people who might have somehow angered him. They were just “other”–and somewhere in his misbegotten life, he had come to believe that the mere existence of people with skin color unlike his own constituted an injury so great, so monumental, he would be justified in eradicating it.

We will undoubtedly hear from the defenders of an imagined version of the Second Amendment that the problem isn’t guns, it’s mental illness. Rational individuals will respond that (1) most people suffering from mental illness are not dangerous, and (2)  giving easy access to deadly weapons to the people who do display murderous impulses is its own form of insanity.

Racist domestic attacks have been increasing, along with all the other signs of a disintegrating national culture. It isn’t as if we couldn’t see this coming; over a year ago, an article in The Guardian reported

Racially motivated extremists pose the most lethal domestic terrorism threats to the US, according to an unclassified intelligence report that warned that the threats could grow this year.

The blunt assessment, in a report released by the Office of the Director of National Intelligence, echoes warnings made by US officials, including the FBI director, Christopher Wray, who testified earlier this month that the threat from domestic violent extremism was “metastasizing” across the country.

Meanwhile, American government is gridlocked by a combination of obsolete political systems and the devolution of the GOP into a racist, misogynist cult intent on reversing fifty-plus years of human rights progress.

It’s hard not to agree with a bystander interviewed by the Guardian

“I do know that this isn’t the first time this has happened in America, so this will be pretty much the same,” said Lewis. “There will be candles, probably have a march, some preaching. But nothing that needs to be done is going to be done.”

Unfortunately, he’s probably right.

 

 

 

 

Back To Basics

There is one basic question that every society must answer: what is government for? What is its purpose and what are its proper limits?

Whether you want to call America’s current, vicious civic battles a “culture war,” or an assault by theocrats on the rest of us, one thing is clear: those waging that battle–the “warriors” who are intent upon using the power of the state to impose their beliefs on everyone else–have utterly rejected the libertarian premise upon which American government rests.

Libertarian, in this usage, refers to the nature of liberty, not today’s political ideology.

There is great wisdom in what has been dubbed the “libertarian principle.” Those who crafted America’s constituent documents were significantly influenced by the philosophy of the Enlightenment, and its then-new approach to the proper role of the state. That approach rejected notions of monarchy and the “divine right” of kings (the overwhelming authority of the state) in favor of the principle that Individuals should be free to pursue their own ends–their own life goals–so long as they did not thereby harm the person or property of another, and so long as they were willing to accord an equal liberty to their fellow citizens.

Government was tasked with protecting that liberty.

The libertarian principle undergirds the U.S. Constitution and Bill of Rights, and its operation has been persuasive world-wide. (If we really wanted to make America great again, we would revisit and revive our allegiance to it.)

Those who crafted America’s Bill of Rights believed that individuals are entitled to basic human rights simply by virtue of being human–and they understood human rights to require respect for individual moral autonomy. The term “limited government” is recognition of that principle–“limited” isn’t a description of size, it is a limit on authority, a limit on the power of the state to invade and disregard the individual’s right to self-determination.

Handing government the power to prescribe citizens’ moral “dos and don’ts” is the antithesis of genuine liberty.  If those in positions of power and authority can prescribe your life choices, and punish any deviation from officially sanctioned personal conduct, you are a subject, not a citizen–and you definitely are not exercising moral choice.

So what role should government play? What is implied by that libertarian construct?

Allow me to restate it: Individuals should be free to pursue their own ends–free to “do their own thing”–so long as they do not harm the person or property of another, and so long as they are willing to accord an equal liberty to others.

Those caveats are important, and they require both action and restraint by government.

One of the most obvious purposes of government is to prevent some people from harming the person or property of others. What constitutes “harm,” of course, can be a contentious matter: does my use of profanity constitute a harm to society? What about pornography? Books with “anti-social” content? “Wrong” religious beliefs? (Contemporary Republicans insist that teaching accurate history constitutes a harm.)

Then, of course, there is that little matter of government’s responsibility for ensuring civic and legal equality….

As difficult as our arguments about the nature of the “harms” that justify government action continue to be, Americans have really balked at that second “so long as”–the one requiring those of us who insist on our own right to self-government to “accord an equal liberty to others.” Far too many of us prefer something along the lines of “liberty for me but not for thee.”

The problem with a system in which only some people have rights is that a government with the power to deny me my rights today can use that authority to deny you your rights tomorrow. Actually, a government with the power to grant and/or withdraw rights isn’t dealing with”rights” at all–it’s doling out privileges, and privileges can be withdrawn when the political environment changes.

As a wise man once told me, we’re equally free, or no one really is. Poison gas is a great weapon until the wind shifts.

 

 

 

Civic Lethargy

Max Boot had a recent column in the Washington Post bemoaning poll numbers that seem to show most Americans brushing off the growing danger signals to our democracy. Boot was formerly a Republican; he now considers himself an Independent, and he is appalled by the extent to which the GOP has been co-opted by authoritarians of various varieties.

He is especially baffled by the widespread dismissal of the reality that is before our eyes.

A year after the Jan. 6, 2021, storming of the Capitol, a CNN poll asked whether it’s likely “that, in the next few years, some elected officials will successfully overturn the results of an election.” Fifty-one percent of Republicans and 44 percent of Democrats said it’s not at all likely. Only 46 percent of Democrats and independents said that U.S. democracy is under attack, which helps to explain why Democratic candidates aren’t campaigning on defending democracy.

Boot finds this optimism difficult to understand, especially given the constant stream of damning details that emerge daily about Trump’s bizarre behaviors as President, and especially about his efforts to overturn the 2020 election.  The former president “remains the dominant figure within the GOP, which means that most Republicans have tacitly accepted that inciting an insurrection is no big deal.”

Look at what just happened in Ohio’s U.S. Senate primary: J.D. Vance, who had been languishing in third place, won the nomination after Trump endorsed him. A fervent, born-again Trumpkin, Vance told a Vanity Fair reporter that Trump supporters “should seize the institutions of the left” and launch a “de-woke-ification program” modeled on de-Baathification in Iraq. (That worked so well, right?) He says that if Trump wins again in 2024, he should “fire … every civil servant” and “replace them with our people.” If the courts try to stand in the way, ignore them. As Vanity Fair noted, “This is a description, essentially, of a coup.”

Given Trump’s continued popularity within the GOP–some 70% of self-declared Republicans believe the “Big Lie”–and given Biden’s sagging popularity, Boots thinks Trump would easily win the nomination in 2024. He then sketches out a horrific–and all-too-plausible scenario:

His “trump card,” so to speak, is the House, which is likely to be under GOP control after the midterms. CNBC founder Tom Rogers and former Democratic senator Timothy E. Wirth point out in Newsweek that controlling the House would allow Trump to steal the presidency if the election is close.

Republican state legislatures in swing states that Biden (or another Democrat) narrowly wins can claim the results are fraudulent and send in competing slates of electors pledged to Trump. The House and Senate would then vote on which electors to accept. Even if the Senate remains Democratic, a GOP-controlled House could prevent Biden from getting the 270 electoral votes needed to win. It would then fall to the House to decide the presidency.

If that scenario sounds hyperbolic, Boots reminds us that a Russian invasion sounded hyperbolic to most Ukrainians before Feb. 24. He concludes that the only way to avert disaster is to vote Democratic in the fall. It no longer matters if you have policy differences with the Democratic Party, as he has–he says that a vote for the GOP is a vote to dismantle American democracy (or what remains of it).

The question Boots asks, but doesn’t answer, is why so many Americans who haven’t “drunk the Kool-Aid” are nevertheless sanguine about the ability of the nation’s institutions to withstand the fascism growing within. That question reminded me of the mindset of many Germans during Hitler’s rise. With a little Googling, I found a fascinating–albeit very disturbing– interview conducted shortly after the war with a German scholar who lived through that time. The interviewee explained how daily events distracted the population from recognizing the larger trajectory of political authority, and how the accumulating deviations from decency were normalized.

To live in this process is absolutely not to be able to notice it—please try to believe me—unless one has a much greater degree of political awareness, acuity, than most of us had ever had occasion to develop. Each step was so small, so inconsequential, so well explained or, on occasion, ‘regretted,’ that, unless one were detached from the whole process from the beginning, unless one understood what the whole thing was in principle, what all these ‘little measures’ that no ‘patriotic German’ could resent must some day lead to, one no more saw it developing from day to day than a farmer in his field sees the corn growing. One day it is over his head….

You really need to click through and read the entire interview. it’s chilling–and it could happen here far more easily than most of us ever imagined.

Boots concerns are not hyperbolic.

 

 

The Right To Privacy

What is the constitutional right to privacy, and why is it controversial?

The term “privacy” is part of the problem: when Americans think about privacy, they think about someone peeking through their window, or riffling through their personal documents–invading areas that we all believe to be…well.. private.

That limited notion of privacy is implicated in the Fourth Amendment’s protection of our right to be “secure in our persons, papers and effects.” But the constitution arguably erects a zone of protection around a different and more expansive type of privacy–the protection of individual autonomy, what we might term the individual’s right to “self-government.” That kind of privacy, protected for the past fifty-plus years by the doctrine of substantive due process, bars the government from making decisions that most of us believe are properly the province of the individual citizen.

Those areas are outlined throughout the Bill of Rights.

The First Amendment forbids government from either censoring or requiring our speech or favoring certain theologies or religions–essentially, the First Amendment requires government to respect the individual’s liberty of conscience. The (overwhelmingly forgotten) Third Amendment says government cannot force us to “quarter soldiers” in our homes (a person’s home is her castle…). The Fourth Amendment explicitly requires government to respect our “security” in our persons and effects absent probable cause to invade that security.

The greatly  under-appreciated Ninth Amendment specifically asserts that rights not explicitly enumerated nevertheless are retained by the people.

That language in the Ninth Amendment was intended to address the concerns of those Founders like Alexander Hamilton who worried that the “enumeration” of protected rights in the Bill of Rights might come to be considered exhaustive–that the omission of certain rights from the list would someday prompt self-declared “originalists” to ignore equally important liberties, including those necessary to the realization of the rights that were enumerated. When the Supreme Court ruled that government had no right to decide whether married couples could use contraception, the Court based its ruling on the proposition that a fair reading of the Bill of Rights required recognition of a “penumbra” protecting a zone of privacy–a zone of personal autonomy– that government was bound to respect.

Scholars and pundits like to poke fun at the term “penumbra,” and the language may well have been ill-chosen, but the Court’s insistence that any fair reading of the Bill of Rights requires respect for that enhanced zone of personal privacy was absolutely correct.

Recognition that the Bill of Rights protects personal or “intimate” decisions from government busybodies–the doctrine of substantive due process, or the right to privacy– has been the legal basis for recognition of rights most of us consider fundamental to the fair operation of modern society: a woman’s right to control her own reproduction, the right of competent adults to engage in sexual activity with other consenting adults, the recognition of same-sex marriage…

If today’s Court eviscerates or overrules that doctrine–if it refuses to respect the line between decisions that are properly left to individuals and those that can properly be made by the legislatures of various states, the United States will head down the path of the Taliban. The only difference will be the content of the theology that the state will impose.

Back in the day, when I was Executive Director of Indiana’s ACLU, I used to explain that the Bill of Rights answered a simple question: who decides? Who decides what prayer you say, or if you pray at all? Who decides what book you read, what political ideology you adopt? Who decides whether you marry, and who? Who decides whether you procreate? The whole point of the Bill of Rights was to ensure that government stayed in its lane–that the state refrained from making decisions that were none of governments’ business.

Today’s radical Court is intent upon erasing those lane lines.

No matter what Alito says to the contrary, eliminating the doctrine that has kept government in its lane won’t be limited to issues of reproductive choice. After all, at least four of the radical judges who voted to overrule Roe insisted during their confirmation hearings that it was “settled law.”

To the extent there is a controversy over the Constitutional right to privacy, it is between those who believe government has the right to make our most intimate decisions and those of us who disagree. Today’s Court is on the wrong side of that debate.