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The year is 2019. The government sends in a SWAT team to seize any corporate property it wants without the due process or just compensation required by the Fifth Amendment to the Constitution. The government also has the power to swipe bank assets, raid newspaper offices without warrants or just cause, and even censor any news published by a media corporation. No, its not the plot of a newly unearthed Orwell novel. These tactics, and more, would be legal under an amendment to the U.S. Constitution just introduced by Montana Sen. Jon Tester.

Testers amendment aims to strip rights from corporate entities. His amendment would provide that (1) The rights enumerated in this Constitution and other rights retained by the people shall be the rights of natural persons; (2) As used in this Constitution, the terms people, person, and citizen shall not include a corporation, a limited liability company, or any other corporate entity established by the laws of any state, the United States, or any foreign state.

Senator Tester justifies his proposal by arguing that a corporation doesnt hop on the combine to try and get harvest done. Well.

Seven years after Citizens United, the whole corporations arent people and therefore shouldnt have rights bit is getting pretty tiresome. Certainly, our elected officials should be held to a higher standard of debate.

Yes, its true that if youve never thought about it, the idea that corporations are people seems absurd on its face. Corporations are not people, of course. But, for many purposes, it makes perfect sense that the law treats them as such. For example, if the law did not treat corporations as people, they couldnt be sued.

The bigger point, though, is that corporations have rights because people have rights, and people form and own corporations. This is a principle as old as the American Republic, re-emphasized by the Supreme Court as early as 1819 in Trustees of Dartmouth College v. Woodward. A corporation, the Court noted, is an artificial being, invisible, intangible, and existing only in contemplation of law. But that didnt mean that people gave up their rights when they formed a corporation. Rather, the decision emphasized that when people join together to accomplish things, they usually need some form of organization, and shouldnt have to sacrifice their rights just because they organize. Individuals, wrote the Court, find it impossible to effect their design securely and certainly without an incorporating act. Corporate rights are the rights people have when they act together.

Oddly enough, in the momentous Citizens United decision that prompts Testers proposal, not even the Courts dissenters ever mentioned the issue of corporate personhood. Why? Because they all understood that corporate personhood is a longstanding doctrine that is not controversial in law, and was not what the case was about.

So lets think about Testers reasoning. There are over 29,000 farms and ranches in Montana. Many of these are incorporated. And indeed, around the country a great many, perhaps most, family farms are incorporated. So in a sense, when your local family farmer gets to work, it is indeed a corporation who hops on that combine. In fact, Testers family farm is incorporated it is T-Bone Farms, Inc. Does Tester think it should be illegal for him to post a political sign on his farms property?

Under Testers proposed constitutional amendment, the government could deprive him of a right to a jury trial any time a lawsuit involved his farm. The government could simply take his land, without due process, for any reason, and without compensation, all in violation of the takings clause. All this because, by incorporating his farm, he would give up his constitutional rights.

Constitutional amendments, such as that offered by Tester, will not pass in the next few years but they indicate the general hostility to free speech that many senators have, and their willingness to silence speakers they dont like. They also show the willingness to advocate rash and dangerous proposals to accomplish that end. In the long term, that should concern us all.

Brad Smith is the chairman of the Center for Competitive Politics and the former chairman of the Federal Election Commission.

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ONLINE-ONLY OPINION: Tester's assault on corporate rights is an assault on people's rights - The Missoulian

The police cannot force you to tell them the passcode for your phone. Forcing you to turn over or type in your passcode violates the Fifth Amendment privilege against self-incriminationthe privilege that allows people to plead the Fifth to avoid handing the government evidence it could use against them. And if you have a phone thats encrypted by default (which we hope you do), forcing you to type in your passcode to unlock the device means forcing you to decrypt your phone, too. That forced translationof unintelligible information to intelligiblealso violates the Fifth Amendment.

But theres a problem: not all law enforcement officers have received the memo. In one particularly egregious case, military investigators forced the defendant, Sergeant Edward J. Mitchell, to unlock and decrypt his iPhone 6 after he asked for a lawyer. Not only was the investigators continued interrogation of Sgt. Mitchell without a lawyer a clear violation of U.S. Supreme Court precedent, but compelling him to unlock and decrypt his phone also violated the Fifth Amendment. The case is currently on appeal to a federal military appeals court, and we filed an amicus brief with the court explaining why.

The Fifth Amendment privilege against compelled self-incrimination protects testimonial communications. Testimonial communications are those that require a person to use the contents of his own mind to communicate some fact. Testimonial communications dont have to be verbal; the key is that the information conveyed must come from the suspects own mind. As we explain in our brief, compelled passcode-based decryption is inherently testimonialand thus always prohibited by the Fifth Amendmentfor two reasons.

First, the compelled entry of a memorized passcode forces a person to reveal the contents of their mind to investigatorscontents that are absolutely privileged by the Fifth Amendment. As far as the Fifth Amendment is concerned, theres no difference between forcing a person to type their passcode directly into their phone and forcing them to say it out loud to an investigator. The trial judge in this case understood that and found that typing in a passcode was a testimonial act. So just by forcing the defendant to unlock his phone, the investigators violated his Fifth Amendment right.

Second, the process of decryption itself is testimonial because it involves translating unintelligible, encrypted evidence into a form that can be used and understood by investigatorsagain relying on the contents of the suspects mind.

Encryption transforms plain, understandable information into unreadable letters, numbers, or symbols using a fixed formula or process. When information is encrypted on a phone, computer, or other electronic device, it exists only in its scrambled format. If Sgt. Mitchells phone had merely been locked but not also encrypted, had the officers broken into the phone, they would have been able to access and understand the information stored on the phone. But since the phone was encrypted, if they had tried to break into the phone, they would have found only scrambled, encrypted data; they wouldnt have been able to understand it. The officers needed Sgt. Mitchell, and his unique knowledge, to translate the information on the phone into its unscrambled, intelligible state for them to be able to use it against him. In other words, they were seeking transformation and explanation of data by an accused of the very data they sought to incriminate him with. This thus violated the Fifth Amendment for a second and independent reasonbecause of the nature of compelled decryption.

Oral argument in this case is scheduled for 12:30 p.m. on April 4, 2017 at the University of Notre Dame Law School in Indiana, as part of the Court of Appeals for the Armed Forces student outreach program. We hope the court holds that, because of the very nature of decryption, compelled passcode-based decryption hits at the heart of the Fifth Amendments privilege against self-incrimination.

Thanks to the American Civil Liberties Union and ACLU of the District of Columbia for joining our brief.

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EFF to Court: Forcing Someone to Unlock and Decrypt Their Phone Violates the Constitution - EFF

The Telegraph

Man's murder conviction, life sentence upheld on appeal The Telegraph Dinkins also challenged his conviction on the grounds that Lowe, who invoked his Fifth Amendment right against self-incrimination, could have given some useful testimony without incriminating himself. Dinkins' allegation of error, however, is not ...

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Man's murder conviction, life sentence upheld on appeal - The Telegraph

Home Opinions Trumps immigration order and how the Ninth got itwrong

By thekeystonenews on March 3, 2017

Governments appeal to the Ninth Circuit results in court errors

By Arthur H. Garrison

Staff Writer

On Feb. 9, the political drama of President Trumps executive order took a turn when his opponents translated a political fight into a constitutional question and thus dragged the courts into the ring of battle.

This is nothing new. But I will leave discussion of that political truth for another day.

President Trump issued an executive order putting a stop on immigration from seven specific countries. He did so under a federal statute 8 USC 1182(f) which states,

Whenever the President finds that the entry of any immigrants or of any class of immigrants into the United States would be detrimental to the interests of the United States, he may, by proclamation, and for such period as he shall deem necessary, suspend the entry of all immigrants or any class of immigrants as immigrants or nonimmigrants.

A limitation on that power is noted in 8 U.S.C. 1152(a)(1)(A) which states, regarding the granting of visas. No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the persons race, sex, nationality, place of birth or place of residence.

The case went before the Ninth Circuit on appeal by the government asking for an emergency stay on the Temporary Restraining Order (TRO) that was granted by the District Court Washington. To prevail, the government had to establish that it was likely to prevail on the merits. The merits should have been based on sections 1182 and 1152.

It is a legal maxim that if a government action can be held lawful or unlawful based on statutory interpretation, the constitution is not to be invoked.

In its brief, the Trump Administration asserted that the executive order was lawful under section 1182. The states of Washington and Minnesota, in part, argued that the executive order violated section 1152. The stated goal of the executive order was to prevent infiltration by foreign terrorists or criminals.

Pursuant to that goal, the order stated, I hereby proclaim that the immigrant and nonimmigrant entry into the United States of immigrants from [Iraq, Syria, Libya, Somalia, Sudan, Yemen and Iran] would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days.

The state response was that the suspension was a vainly disguised ban on all Muslims, which is prohibited under section 1152.

The problem is that the Ninth Circuit opinion bypassed this argument entirely. There was no mention of either statute or the legal arguments that they provide either side.

The court bypassed the true legal dispute and engaged in the Fifth Amendment arguments that Washington and Minnesota asserted, in part because they had a weak argument standing on section 1152 alone.

The Fifth Amendment Due Process Clause protects a persons right to life, liberty and property and prevents the government from taking it without a hearing.

The opinion asserted that under the Fifth Amendment Due Process Clause, the executive order violated the rights of legal residents, citizens and immigrants who wish to return to the United States and travel from the United States.

The government, in its papers and at oral argument, asserted that the application of the order to the first two groups was an error in application and would no longer apply to them.

That should have made the entire issue regarding the order and its application to legal immigrants and citizens moot. The court held that since the order was applied to citizens and legal immigrants in the first two days of the order and there was no official proclamation from the president himself preventing such application, the court could not take the word of a legal memo from the White House Legal Counsel that similar application would not occur in the future.

As such, the executive order violated the Fifth Amendment. To make a long story short, there is no Fifth Amendment right for people who are not citizens or legal residents to assert in the first place, and in the second, immigrants who are not in the United States have no right to a visa.

The Fifth Amendment applies to those who have property rights in the United States. That property right exists by being physically present, having legal status or being a citizen.

It is true that immigrants have a right to a hearing once in the United States, but that is only to determine if they are illegal and should be removed.

It does not create a right for travel, and the right to a hearing does not translate into a right to come to the United States from another country. To get around this, the court held that immigrants who have contracted with the state universities to come into the United States as students or teachers have created a Fifth Amendment Due Process property right to travel, that the state governments can defend on the immigrants behalf.

Since the government could not prove, to the Ninths satisfaction, that it would prevail on the due process claim because it could not prove people from the seven countries were a threat, they were not entitled to an emergency stay of the TRO. The government lost because it was held to a due process test, not to whether its executive order could be supported under section 1182. The court chose the wrong test.

But this error may not be long-lived. A day after the decision, the Chief Judge of the Ninth Circuit informed the government and the states of Washington and Minnesota that a judge on the court had made a sua sponte request that a vote be taken as to whether the order issued by the three judge motions panelshould be reconsidered en banc.

The court explained in a press release, Under Federal Rules of Appellate Procedure and the Ninth Circuit General Orders, a circuit judge can also request that a vote be held on whether a decision should be reheard by an en banc panel, even if the parties have not requested it. This procedure is termed a sua sponte en banc call.

The Chief Judges order gave both parties a deadline of Feb. 16. It said, Setting forth their respective positions on whether this matter should be reconsidered en banc.

The court explained in its release, After the briefs are filed, a vote is scheduled on the en banc call. If a majority of the active, non-recused judges vote in favor of rehearing en banc, then the en banc court rehears the case. The en banc court consists of the Chief Judge, and 10 non-recused judges who are randomly drawn.

With such a request, it is almost certain that the Ninth will review the decision en banc. Because many believe the panel decision was wrong on the law, there is a good chance this decision will be overruled.

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Trump's immigration order and how the Ninth got it wrong - The Keystone Newspaper

Posted on February 24, 2017

Police cannot walk into a building and order everyone inside to unlock their iPhones via fingerprint scan, an Illinois federal court has ruled.

The case arose from police efforts to disrupt a suspected child pornography ring. They sought permission to enter a premises, and to demand that its inhabitants unlock their iPhones with Touch ID, believing that incriminating evidence may be stored on such devices.

In his ruling, Judge M. David Weisman determined that the broadness of this approach violates Fourth Amendment protections against unreasonable search and seizure, and Fifth Amendment protections against self-incrimination. With respect to the former, the judge essentially suggested that police ought to have specific suspicions against particular individuals, and cannot search someones phone just because they happen to be on the premises, though he emphasized that its the context in which fingerprints are taken, and not the fingerprints themselves, that raises concerns. As for the Fifth Amendment, he ruled that the fingerprint scan itself can be self-incriminating, since by performing fingerprint unlock a suspect is testifyingthat he or she has accessed the phone before, at a minimum, to set up the fingerprint password capabilities, and that he or she currently has some level of control over or relatively significant connection to the phone and its contents.

It should be a welcome ruling from the perspective of privacy advocates like the Electronic Frontier Foundation, which decried a similar police effort in California last autumn. But with a recent Minnesota Court of Appeals ruling finding that a compelled fingerprint unlock is no more testimonial than furnishing a blood sample with respect to Fifth Amendment concerns, this is still very much a contested legal frontier.

Sources: Forbes, Ars Technica

February 24, 2017 by Alex Perala

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Compelled Fingerprint Unlock Violates Fifth Amendment: Federal ... - findBIOMETRICS