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The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. Ex parte Milligan, U.S. Supreme Court (1866)

During the Civil War, when President Abraham Lincoln thought it expedient to silence those in the northern states who challenged his wartime decisions by incarcerating them in military prisons in the name of public safety, he was rebuked by a unanimous Supreme Court. The essence of the rebuke is that no matter the state of difficulties whether war or pestilence the Constitution protects our natural rights, and its provisions are to be upheld when they pinch as well as when they comfort.

This basic principle of American law our rights can only be interfered with by means of due process is being put to a severe test today in most American states.

Here is the backstory.

The coronavirus pandemic, which ravaged portions of China and Italy, has arrived in the United States and our central planners have panicked. We do not have a free market here in the health care delivery system; rather, we have thousands of pages of regulations and control at the federal, state and local levels.

That control was revealed as manifestly deficient and ignorant when the virus struck. The feds have been so protective of their control of health care an area of governance that the Supreme Court has ruled is nowhere delegated to them in the Constitution, and but for their power to tax those who defy them, would be nonexistent that they insisted that only the Centers for Disease Control in Atlanta can be trusted to test for the virus.

It took weeks of begging by governors and mayors for the feds to relent. Of course, once they acknowledged that labs throughout the country are as competent as theirs to conduct the tests, they realized that their incompetence had deprived all physicians as well as most private sector and state government-owned labs of the test kits themselves.

We all know how central economic planning diminishes freedom and adds to the cost of products. Now we know that central micromanagement of health care can kill people.

But these mayors and governors were not to be outdone by the feds in their totalitarian impulses. Many of them, particularly in the Northeast and the West Coast, have issued decrees that are as profoundly unconstitutional as Lincolns efforts to silence dissent.

The governors of New York, New Jersey, Pennsylvania and Connecticut have all issued decrees closing most retail establishments, particularly all restaurants, bars and theaters. The governor of New Jersey is threatening to ban all travel after dark. And, the mayor of New York City is threatening to ban all travel all the time.

The fulfillment of these totalitarian impulses has put more than 1 million folks out of work, closed thousands of businesses and impaired the fundamental rights of tens of millions of persons all in violation of numerous sections of the Constitution.

The Contracts Clause of the Constitution prohibits the states from interfering with lawful contracts, such as leases and employment agreements. And the Due Process Clause of the Fourteenth Amendment prohibits the states from interfering with life, liberty or property without a trial at which the state must prove fault. The Takings Clause of the Fifth Amendment requires just compensation when the state meaningfully interferes with an owners chosen lawful use of his property.

Taken together, these clauses reveal the significant protections of private property in the Constitution itself. Add to this the threat of punishment that has accompanied these decrees and the fact that they are executive decrees, not legislation, and one can see the paramount rejection of basic democratic and constitutional principles in the minds and words and deeds of those who have perpetrated them.

Add to all this, the protection in the First Amendment of the right to associate and the judicially recognized right to travel both of which are natural rights and it is clear that these nanny state rules are unconstitutional, unlawful and unworthy of respect or compliance.

Why is this happening? Throughout history, free people have been willing to accept the Devils bargain of trading liberty for safety when they are fearful. We supinely accept the shallow and hollow offers of government that somehow less liberty equals more safety.

This happened here with the Alien and Sedition Acts in the 1790s when the Federalists feared a second revolution, during the Civil War when Lincoln feared dissent and Congress feared defeat, during World War I when Wilson suppressed the speech he hated and feared, and during the Great Depression when FDR feared economic calamity and seized property without compensation. And, after 9/11, fearing another attack, Congress secretly crafted the Patriot Acts circumvention of the Fourth Amendment and creation of the total surveillance state.

This sordid history came about when the public was fearful of the unknown and trustful of the governments bargain. But the safety offered for the liberty sacrificed never came to pass.

Moreover, liberty is natural and personal. You can sacrifice yours, but you cannot sacrifice mine. The natural nature of personal liberty Jeffersons Declaration of Independence calls our rights inalienable and Madisons Ninth Amendment reflects their nature as limitless insulates their existence and exercise in a free society from totalitarian and even majoritarian interference.

Today, the fear of contagion gives government cover for its assaults on freedom and poses a question the government does not want to answer: If liberty can be taken away in times of crisis, then is it really liberty; or is it just a license, via a temporary government permission slip, subject to the whims of politicians in power?

See the original post:
Napolitano: Freedom in a time of madness - Daily Herald

A recent incident in Maryland where a man was killed by police attempting to serve a red flag law warrant reported by ABC News (https://abcn.ws/3a2uN8m) and The Guardian (https://bit.ly/38Vq8DD) has sparked discussion on the use of red flag laws. There are several problems with these laws.

First and foremost is the tie to guns and Second Amendment challenges. The knee-jerk reaction to gun violence is to enact a new law in effort to do something and red flag laws seem to be the flavor of the day.

While seemingly well-intentioned, the creation of a red flag law in response to a gun violence incident is a blatant effort to create a path to confiscate guns from law-abiding citizens. Otherwise, they would not specify removing guns and would include proper due process using credible probable cause.

This points to another major problem with a red flag law that its a direct violation of the U.S. Constitutions Fourth Amendment that protects citizens from unreasonable search and seizure, as well as, the Fifth Amendment, which guarantees due process.

All of this considered, the safety of the public still must be protected. Victims of violent incidents feel especially abandoned when their attack could have been prevented and there is nothing in place to do so. On the other hand, someone cannot be arrested or detained just because they may commit a crime. That brings up the most compelling problem with a red flag law. If someone is considered a credible threat to society, what is the appropriate measure keeping within the confines of the Constitution? The answer to that is not easy or simple, and it is not a red flag law.

Use of existing laws for potential victims through restraining orders, orders of protection, etc. to provide due process provides the constitutionally acceptable answer. That means potential victims need to be active participants to help in their own protection. These potential victims need assurance that their efforts will not increase the threat, so law enforcement should also be more aggressive in enforcing these protective orders.

Finally, guns are not the problem that needs to be addressed, it is the violence by individuals who use any weapon to accomplish their act. When we recognize that reality, then we can fix the violence problem. Until then, we will continue to trample on the rights of law-abiding citizens by creating knee-jerk, reactive laws.

Mick Rankin

Stantonsburg

The writer is the Republican candidate for N.C. House District 24.

Go here to read the rest:
Red flag laws are unconstitutional, ineffective - The Wilson Times

Cities across the U.S. are forcing operators of shared bikes and scooters to use dangerous and privacy invasive APIs developed by the Los Angeles Department of Transportation. These APIscollectively called the mobility data specification, or MDSrequire that operators share granular location data on every trip taken. The location data that cities are demanding is incredibly sensitive and relates to the movements of real people. And some cities, like Los Angeles and soon Santa Monica and Washington, D.C., even require that the data be shared with a five-second delayessentially in real-time.

The local authorities demanding access to individual trip data are failing to comply with existing privacy protections in the law. Meanwhile, cities cannot point to even a single use case to show why they need access to the individual level trip data. That means cities are recklessly and illegally stockpiling sensitive location data that they do not need.

As City Labs recent investigative deep-dive into MDS reports, LADOTs APIs were designed to enable cities to operate as the air traffic controllers of our streetsto send out real-time route instructions and control the path of individual vehicles. That vision is not only unrealistic, but it would necessitate real-time surveillance of all of our movements on city streets, no matter our mode of transportation. What some cities are trying to paint as a vision of a future utopia is actually just a scene straight out of Minority Report.

Think this wont impact you if you dont use shared bikes or scooters? Think again. Cities hope to use MDS as a model for regulating all forms of connected vehiclesincluding carsin the future.

In California, EFF is asking the legislature to step in and protect Californians from LADOTs invasive APIsby placing sensitive individual trip data off-limits for planning purposes, and by limiting local authorities to aggregate and deidentified trip data. Such guardrails are necessary to protect the privacy interests of people who rely on shared mobility devices, and to clearly tell local authorities that they do not have a free pass to operate outside of the law.

As we told the legislature last month during a hearing of the Senate Transportation and Judiciary Committees, when cities start demanding individual level trip data, they are no longer just smart citiesthey are surveillance cities. Turning our cities into surveillance cities is not necessary to achieve the laudable planning goals of city and regional transportation agencies. What we need are smart enough citiescities that harness the power of data and technology in a way that respects everyones privacy interests.

Local transportation planning agencies across the country are currently demanding that operators of shared mobility devices turn over individual trip data as a condition of getting a permit to operate within their jurisdictions. They hope to someday obtain the same data for other forms of transportation.

The local authorities making these demands are not balancing their planning goals with the privacy interests of residents who rely on these new modes of transportation. And they do not even seem to believe that individual level trip data is personal information.In a letter opposing a location privacy bill sent last June, five California cities argued that removing customer identifiers like names should be enough to protect rider privacy.That is simply not the case. Human mobility patterns are highly unique, and that makes anonymizing location data a notoriously difficult technical challenge. Studies have shown that when it comes to location data, removing names is not enough to protect privacy.

The local authorities demanding individual trip data are violating multiple privacy protections in existing law. In California, for example, they are failing to comply with the California Electronic Communications Privacy Act, which provides that a government entity shall not compel the production of electronic device information from any person or entity other than the authorized possessor of the device, except in specific circumstances not present here (such as when they have a warrant). They are also failing to comply with the California constitutional right to privacy, which prevents governments from collecting and stockpiling unnecessary information about Californians, and from misusing information gathered for one purpose in order to serve other purposes[.]

Local authorities demanding individual trip data are also failing to comply with the Fourth Amendment. The Supreme Court was clear in Carpenter v. United States that location data is incredibly sensitive personal information, and that it is protected by the Fourth Amendments reasonable expectation of privacy.And in the administrative search context, the Court requires that subjects of searches have an opportunity for a neutral decision maker to weigh in on the legality of the search before complying. The MDSs ongoing searches of operators trip data provide no such opportunity for review.

Courts have already been clear that similar searches violate the Fourth Amendment. The Southern District of New York held in 2019, for example, in a case involving New York Citys demand for Airbnb user data, that [existing] Fourth Amendment law does not afford a charter for such a wholesale regulatory appropriation of a companys user database. Cities are ignoring Fourth Amendment precedent with their invasive and unreasonable demands for individual trip data.

Whats more, the cities demanding access to this sensitive location data have not shown that they actually need this data. At EFF, we have yet to hear a single use case that would necessitate it.

The key for transportation research and city planning is patterns of movement. Cities dont need time-stamped route information for a specific individual; they need to know where most people go, and when most people go there. Thats why there are so many data aggregators out there helping cities make sense of all the data they are getting. Data on individual level trips is not necessary or even useful to cities for city planning purposes. The idea that you will never know what you might find until you have the data is not compelling when you are talking about incredibly sensitive personal information, like granular location data. It might be interesting for cities to force their residents to all wear GPS ankle monitors so they could better understand residents mobilities, but that doesnt mean they should be allowed to do so. There have to be limits on cities ability to collect sensitive location data.

For enforcing scooter caps and equitable distribution of scooters, cities dont actually need trip data at all; all cities need is data regarding where scooter are parked. Data about specific scooter locations when they are not tied to individual trips does not raise the same privacy concerns as when they are tied to the movements of particular individuals.

To ensure the veracity of data, there are technical auditing solutions that can be implemented on the operator side to avoid the need for sensitive data to change hands. Cities can also pass rules that impose liability for providing inaccurate or false data, and then enforce those rules with auditing and monetary penaltiesall without any harm to privacy.

We want to be clear: we do not think that cities should be blocked from accessing all data whatsoever. At EFF, we agree that local public agencies should be able to collect some data in order to ensure that new transportation devices are deployed safely, efficiently, equitably, and sustainably. But local agencies do not need to collect sensitive, personally identifiable information about riders in order to achieve their goals. Civic planning authorities can and should be using sufficiently aggregated and deidentified datadata that is incapable of being tied back to an individual rider, even in combination with other data. This is the solution for ensuring that privacy is not sacrificed in the name of transportation planning.

We can have beautiful cities without turning our cities into surveillance cities. And what we need to get there are clear limits from the Legislature that rein in efforts by local authorities to obtain access to sensitive individual trip data.

See the rest here:
Unchecked Smart Cities are Surveillance Cities. What We Need are Smart Enough Cities. - EFF

New technology can make it easier to catch criminals, but also to implicate innocent people in the process.

A Gainesville residents recent experience showed the need for caution and safeguards when using such technology. As NBC News reported, Zachary McCoy received a letter in January telling him that the Gainesville Police Department requested information related to his Google account which the company would be releasing in seven days, unless he went to court to block it.

The letter lacked details on exactly what the police wanted except for a case number, which led McCoy to an investigation report on a burglary 10 months earlier. The crime happened at an elderly womans home less than a mile from where McCoy lived.

He knew he had nothing to do with the break-in, but was worried about being arrested, so he hired Gainesville attorney Caleb Kenyon. Kenyon found that the letter was prompted by a geofence warrant, which seeks records for any devices in a certain area during a specific period.

McCoy, an avid biker, recorded his rides on an exercise-tracking app that used his phones location services which relayed his movements to Google. McCoy took frequent loops through his neighborhood, and found that his route on the day of the burglary passed the victims house three times in an hour.

It was a nightmare scenario, he told NBC News. I was using an app to see how many miles I rode my bike and now it was putting me at the scene of the crime. And I was the lead suspect.

Geofence warrants are increasingly being used by law enforcement agencies around the country to solve a variety of crimes. But they can also implicate innocent people, such as an Arizona man who was wrongly arrested for murder largely based on Google data received from a geofence warrant.

McCoy told NBC News that he might have ended up in a similar situation if his parents hadnt given him money to hire a lawyer. Kenyon filed a court motion seeking to void the warrant and block the release of any further information. The State Attorneys Office ended up withdrawing the warrant and police were persuaded that McCoy was not involved in the crime.

The case raises constitutional questions. The Fourth Amendment requires warrants to be based on probable cause and that police must specifically state what property is being seized. But geofence warrants let police conduct sweeping searches of phone data from large numbers of people.

The situation shows the need for the legal system to catch up with technological changes, and for law enforcement and the public to both use caution. People should also take note of the information theyre sharing with Google and other technology companies, including the terms of service to which theyre agreeing.

While mistakenly becoming a suspect in a criminal case is an extreme example, there are plenty of other ways in which personal data can be misused.

This editorial was originally published by the Gainesville Sun.

Original post:
Another Viewpoint: Approach new technology with caution - The Ledger

South Dakota (NBC)(03/16/20) On Feb. 11, 2019, undercover detectives removed the trash from outside a 57-year-old paralegals home in Sioux Falls, South Dakota, in hopes of finding her DNA.

Police were led to Theresa Bentaas home by a new investigative technique that combines direct-to-consumer genetic testing and genealogical records.

The detectives believed they were close to solving a crime that had haunted the city for 38 years: a newborn left to die in a frigid roadside ditch, tears frozen to his cheeks.

Once theyd taken the garbage from Bentaas home, the detectives pulled out beer cans, water bottles, and cigarette butts, according to court documents.

They sent the items to a state crime lab, where analysts extracted DNA that they said might belong to the babys mother.

Citing those results, one of the detectives got a search warrant to obtain a DNA sample directly from Bentaas.

When he showed up at her home, Bentaas admitted to leaving the baby in the ditch in February 1981 after secretly giving birth, saying shed been young and stupid and scared, according to an affidavit submitted by the detective.

A few days later, according to court documents, Bentaas DNA swab revealed her as the babys likely mother. Police then arrested her for murder.

Bentaas has since pleaded not guilty, and now, on the eve of her trial, she is fighting the charges against her.

One of her main arguments is that police violated her constitutional protections against unreasonable searches when they used her trash to find her DNA and develop a genetic profile, without first asking a judge to sign a search warrant.

People do not have a privacy interest in the things they throw in the trash, but they definitely have privacy interest in their DNA that is on those items, Bentaas lawyer, Clint Sargent, said in an interview. And theres nothing a free person can do to not deposit DNA on the stuff they deal with every day.

The Minnehaha County prosecutor handling the case against Bentaas did not return a request for comment. Neither did a spokesman for the Sioux Falls Police Department.

The practice of going through a potential suspects garbage for evidence is not new, but it is facing new scrutiny from civil liberties groups and privacy advocates who see danger in law enforcements unchecked power to obtain peoples DNA, which is unavoidably left on just about everything anyone touches, without them knowing about it.

The tactic has grown more frequent with the increased use of investigative genetic genealogy, which relies on DNA and ancestry records to find people with links to DNA left at a crime scene.

Police try to confirm the connection by obtaining the persons DNA, often through surreptitious means.

Without protections, every one of us is vulnerable to having our DNA secretly tested and scrutinized by police without judicial oversight, said Nathan Freed Wessler, an attorney with the American Civil Liberties Union, who specializes in technology and privacy.

The ACLU, along with the Electronic Frontier Foundation, a digital rights nonprofit, filed a joint brief Monday in the Bentaas case in Second Judicial Circuit Court in Minnehaha County, arguing that while it is legal for police to rifle through someones trash for evidence, extracting and sequencing a DNA sample found on that item should first require going to a judge for a warrant. Not doing that, the groups said, violates the Fourth Amendment of the U.S. Constitution.

The filing is the first in what the groups say will be a national effort to challenge cases in which police have used trash and other abandoned items to secretly access a potential suspects DNA.

Among the cases they are watching is the upcoming trial of an Orlando, Florida, man charged with the 2001 killing of a college student.

The goal, they say, is to persuade judges to require police to first come to them for permission, in the form of a warrant.

Our DNA can reveal so much about us that our genetic privacy must be protected at all costs, an Electronic Frontier Foundation lawyer wrote in a blog post this week.

Prosecutors say that argument is a stretch. They point out that the Supreme Court has ruled that it is OK for police to search through someones garbage, and criminal defendants have largely failed in the past to challenge the collection of DNA from trash and other items.

The Minnehaha County states attorney made those assertions in a brief opposing Bentaas motion to suppress the DNA evidence against her.

Duffie Stone, president of the National District Attorneys Association and a prosecutor in South Carolina, said police are allowed to go through someones trash or collect abandoned objects, regardless of whether they use those items to find DNA.

Making it more burdensome to test abandoned items for DNA would slow criminal investigations, which often rely on trying to find DNA not only from things left in the trash but also all sorts of objects found at crime scenes, from guns to gum, Stone said.

Theyre trying to extend the expectation of privacy to shedded DNA cells, Stone said. I dont think the courts are going to go with that, and from a practical standpoint it would be impossible for law enforcement to work with that on a regular basis.

Elizabeth Joh, a professor at the University of California, Davis School of Law, who studies criminal procedure and police surveillance, said that as covert collection of DNA becomes cheaper and easier, there need to be more rules, from the courts or lawmakers, covering it.

There is basically nothing regulating or guiding the police on what to do other than their own internal guidelines, Joh said.

On Friday, Bentaas defense team and Minnehaha County prosecutors argued the DNA collection issue before Second Circuit Court Judge Susan Sabers, who said shed make a decision by Tuesday, Sargent, Bentaas defense lawyer, said.

Bentaas trial is scheduled to begin April 20.

The trial could mark the final chapter in a mystery that has haunted Sioux Falls for nearly four decades.

The baby died years before DNA became a crime-solving tool. Residents arranged for a funeral and burial and named the boy Andrew, which was inscribed on his gravestone.

In 2009, a detective, hoping to use new DNA analysis methods to find a new lead, arranged for the body to be disinterred, according to court documents, but the babys DNA profile wasnt closely related to any profiles in the states crime database.

Last year, police turned to investigative genetic genealogy, which seeks DNA links outside of crime databases.

Investigators built a family tree that pointed them to Bentaas, according to court documents.

Her arrest triggered a wave of relief across Sioux Falls.

Lee Litz, who found the baby at the side of the road, told a reporter last year that he considered the boy his long-lost son and saw Bentaas arrest as justice for a community that refused to let his death go forgotten.

There are times when I wish I hadnt found him and there are times that Im glad I did, Litz told the Argus Leader newspaper. I just wish I found him earlier, when he was still alive.

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Original post:
Woman fights the murder charge of killing her own infant saying police illegally obtained DNA from her trash - KTVE - myarklamiss.com