French Oppressors?

Apparently, in France, if you get caught using a P2P network, you lose your internet access. Lets hope our dictators, or the RIAA/MPAA don't catch on. I wonder if they have any kind of redress against their service providers.

Wait, Fox News got something right?

Apparently so. The following video "proves" it. I find some of what this guy has to say very ironic given the "news" network broadcasting his words. I wonder if there were some producers having a conniption when he started railing on about the mindless sheep that Fox News so proficiently panders to on a regular basis. Someone needs to mark this date in history as the one time Fox got it right. Call Guinness.

This Is a Good Question...

Some know Tucker Carlson for his really terrible and short lived stint on TV's Dancing With the Stars. The rest of us know him as the MSNBC pundit. Recently, he raised a very serious question about Dennis Kucinich. It really is a good point, Kucinich seems to be on the right side of some big issues, and willing to say some unpopular things.

If anything, this points out a very disturbing trend with the current state of the impending 2008 elections. I just seems like things are skewed in a bad direction. The point of elections is to let the people choose freely. Doesn't this create the responsibility on the part of news outlets to provide impartial coverage? I think this could largely be attributed to the move away from hard news and towards "entertainment". If the current situation is full of symptoms, maybe that is the root of the problem.

Congress Is Still Awake...

With all the insanity in American politics these days, it is nice to see that the Congress is still awake, and willing to prevent the President from abusing his office, on occasion. Here are two examples.

The Senate has blocked the ability for the President to make Thanksgiving Recess Appointments.

and

The House passed a bill that did not provide retroactive immunity to big telecoms for their part in questionable domestic surveillance projects. We can only hope the Senate is equally as awake on this one, but I wouldn't bet the farm.

ACLU v. NSA, round Two

Those who have followed the Grey Area know that the goings on with FISA have been an oft covered topic on these pages, especially since my paper on the War Powers was published by the Valparaiso Law Review in June of 2007. The District Court Decision may be found here (.pdf).

Recently, the 6th Circuit Court of Appeals rendered their decision on appeal from the decision of the Eastern District of Michigan. The decision may be found Here (.pdf).

For those looking for the quick answer, the 65 page decision came down to the ACLU's lack of standing. Specifically:

Because there is no evidence that any plaintiff’s communications have ever been
intercepted, and the state secrets privilege prevents discovery of such evidence, see Reynolds, 345
U.S. at 10, there is no proof that interception would be detrimental to the plaintiffs’ contacts, and
the anticipated harm is neither imminent nor concrete — it is hypothetical, conjectural, or
speculative. Therefore, this harm cannot satisfy the “injury in fact” requirement of standing.

Court's Opinion, Pg. 8.

Fundamentally, the Court's majority decision centers around the fact that the Plaintiffs failed to show that they were harmed by the NSA program. In fact, the decision goes a long way to determine that the Plaintiffs went out of their way to avoid the particular harm, and that even if the harm occurred, the Plaintiffs are barred from demonstrating that harm because the NSA invoked the State's Secrets Privilege. In a rather matter-of-fact manner, the majority states that this is merely "a subjective apprehension and a personal (self-imposed) unwillingness to communicate." Here the Court determines that the injury is not sufficiently acute to activate standing because there hasn't been a demonstration of specific harm. Instead, the alleged injury is nothing more than a subjective apprehension, which lead the plaintiffs not to act out of their own fear. This analysis lead the Majority to determine that the harm was not sufficient to permit standing in the case under the Supreme Court's decision in Laird v. Tatum, 408 U.S. 1 (1972).

The most abominable conclusion reached by the Court, however, is the notion that the actions of the NSA do not amount to Electronic Surveillance under the Foreign Intelligence Surveillance Act (FISA). The Court couches its conclusion in the definition of Electronic Surveillance in FISA. For the record, Electronic Surveillance is defined as:

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

50 U.S.C. 1801(f)(1)-(4) (obtained from here). I don't think it takes much technical expertise to figure out that placing a wire tap on a telephone line uses an electronic device to obtain information transmitted over the "wires" considering all electronic information must move through a form of infrastructure, much of which is composed of either copper wire or fiber optic cable.
To say that intercepting emails using a computer does not constitute electronic surveillance goes beyond ordinary ignorance, and strays into legal absurdity. What's worse is the majority opinion fails to explain how, exactly, the TSP does not constitute electronic surveillance demonstrate that the point is untenable.

The Majority makes on basic point; that, clearly, as alleged, the Plaintiffs failed to adequately plead sufficient injury to bring a constitutional challenge to the TSP. This, however, throws another issue into sharp relief. The reason why the plaintiffs failed to proffer evidence demonstrating actual harm due to their inability to obtain information because of the state's secret privilege. This issue was not raised on appeal, and may be a point of contention for later opinions. A direct analysis isn't appropriate here.

The dissent raises the most tenable arguments on the issues presented. As such, it is worth a read. At the very least, this case likely has merit to progress to a review en banc by the 6th Circuit. In the even that this fails, there is still the possibility that the Supreme Court would take the case. However, this new majority leaves only a dubious possibility that the Court will affirm the decision of the Eastern District of Michigan.

At the very least, this decision sets the stage for a confrontation over the application of the state's secrets privilege in matters that directly and detrimentally impact civil liberties interests, something that few courts have directly confronted, and is beginning to ripen into an important issue.

Throwing in my Hat...

While this blog has continually critiqued candidates for political office, it rarely states with specificity where I stand, who I will vote for, or makes an outright endorsement for a candidate. This is going to be one of the few posts where this model changes.

As an American voter, I feel as though the 2008 Presidential race will require that I have a contingency plan depending on the outcome of the primaries early next year. For example, I don't support Hillary Clinton, but she leads the poles among Democrats, so I need to know which, if any, of the possible Republican candidates I will support in the even that they represent a lesser evil than the second half of the Clinton dynasty. This is the breakdown:

My Ultimate choice for President: Barrack Obama.
If Barrack is not a candidate: Ron Paul
If Ron Paul is not a candidate: Hillary Clinton

What does this mean? I support Barrack Obama. Not just because he is from Illinois, but because he is the only candidate with a positive vision of the American future. In addition, after meeting him in person before he was ever thought to be a candidate for President, he struck me as honest and sincere, something none of the other candidates, save maybe Ron Paul, demonstrate. Most importantly, he is a civil rights lawyer, so he knows the cost of his policies to the fundamental core structure of this country, the Constitution and its guaranteed freedoms. I trust Barrack, though inexperienced, to consider all of his options before making a decision, which is something that can't be said for President Bush especially when he advocates World War III. That being said, I am voting for Barrack Obama for President if I get the chance, regardless of who the other candidates.

Ron Paul has a good head on his shoulders. He is a real conservative. The kind we have forgotten about since the dawn of the New Deal era. He advocates small federal government and reducing our abusive and down-right imperial approach to world diplomacy. He understands the risks that prior Presidential policy presents to the American public. Above all, he advocates for the freedoms guaranteed by the Constitution, and is likely the only Republican candidate who understands what it means to follow the supreme law of the land.

Hillary Clinton is my last resort. I consider her to be the least of all the evils running for President aside from the two aforementioned candidates. However, this is literally a last resort since refusing to vote only results in tacit acquiescence to whims of the American majority. If I have to vote for Hillary, I will be doing so begrudgingly. I think the Southern Avenger may be on to something with this opinion demonstrating that electing Hillary will result in another 4 years of current neo-conservative policy. There is plenty to question with Hillary. First, she has a history of interesting supporters and this recently includes Pakistani lobbiests who recently reached the maximum level of support they can provide for a political candidate. This almost sounds like support for the newly self-appointed dictator, Pervez Musharraf. The only reason I am inclined to support a second Clinton administration is the hope that it will put us back on a sustainable economic track, though even this possibility is debatable.

As it stands, Hillary is a last resort, with Obama out front and Paul close behind. Hat, meet ring.

Obedient or Overzealous?

About a week ago, I woke up to a dispute raging right outside my back porch. My landlord and a gentleman who later came to represent himself as an employee of the federal government from the Census Bureau, were locked on a hot debate over whether the agent of the federal government had a right to access a person in our building, with the full acquiescence of my landlord. The census agent snuck in the side door and came up the back stairs to try to access this young woman's apartment. As a result, this little dispute took place well within earshot, earlier than I typically like to stir on Sunday mornings. I decided to mediate, in an attempt to put an end to such a rude awakening, but also to get some peace and quiet so I could squeeze another hour of sleep out of my morning. The discussion that followed raised some interesting points.

As a preface to the following, I will note that it is, in fact, illegal to refuse to answer census questions. Section 13 of the United States Code controls, at the basic constitutional level, the operation of the Census Bureau. Interestingly, the Census agent was demanding access to the resident in the apartment he was pursuing. While I understand that there are penalties for failing to participate in a census inquiry, this person was not only sneaking into an area of my building only residents have access to, when he was discovered he demanded access to the common area inside the building and to some degree demanded access to the apartment where the resident lived. All of these demands were made under the auspice of federal law. Interestingly, the previously cited code section fails to provide this right in any explicit or implicit manner. My sense is that some obscure corner of the code of federal regulations contains this language creating this "right of access."

In a basic sense, this right of access likely does not exist, at least to the extent that this gentleman claimed. The Constitution still presents an inherent barrier to this kind of inquisition. He appeared to not only demand access to the common areas of my apartment building but also to the resident's apartment. That, on its own, is repugnant. To think a federal agent can have a right to access a person that any other state actor fundamentally lacks is downright comical. While I will submit it is likely possible that this person has an "right" created by an administrative rule to obtain access to the common areas in my building, there is no law capable of amending the Constitution by legislative or administrative fiat the way he represented. When I pointed out this error, he became angry, making claims that he would get lawyers to write letters. My response was to send federal agents with a warrant issued by a federal judge to justify the access he was requesting. This comment basically ended the exchange, because at this point he started to figure out that he was dealing with a lawyer.

Ultimately, the argument ended with an agreement that he would have a government lawyer send a letter to my property owner explaining this right of access. At this point, my property owner would give my landlord permission to let the guy into the common area of the building so that he can knock on this resident's door. In the event that she isn't home, he is out of luck entirely.

This entire situation raises some interesting questions about what kind of power the government thinks it has. I can tell anyone I have a legal right to do something, but that doesn't mean my statement is supported by law. It is more likely than not that this rhetoric works on the unassuming American. Does this mean we don't ask enough questions of those representing governmental authority? If anything, it shows we shouldn't be so quick to give in when someone with an official name badge starts talking about the law. The need to question everything a government official says these days is omnipresent, especially if we have Presidential Candidates would ask their lawyers for legal permission to start a war before asking Congress.

Happy 300!

I guess you can call it a milestone. This is the 300th post in The Grey Area. Since its birth, I have tried to make this site a place for discourse on compelling issues facing people, regardless of who they are or where they come from. While I focus on what goes on in the United States, I am pleased to know that traffic to this site, be it legitimate or not, comes from all over the globe. 300 doesn't seem like much of a post count in the vibrantly active blog-sphere, but this is something of a personal milestone since I certainly didn't expect to get here.

From here on, though, I hope to double this number in the near future. Thanks for reading, feel free to participate and make this a dialogue. Cheers!

Bit of a Hiatus...

For those regular readers, I want to apologize for my extended hiatus. While I wish I could relay a story about how I have spent the last month and a half in a rendition prison, being held captive by the CIA for the regular words of rebuke towards the goverment that flow from these pages, the reality is far more uninteresting. I am in the process of making a transition in employment so that I can open my own law practice. You can find us on the web at RajSmithLaw.com. The website is in its infancy, and will be up and running with more content in the near future. As for the Grey Area, I hope to return to something of a regular blogging schedule after my employment transition in the next couple of weeks.

Hello Mr. Orwell...

Everyone jokes about it, but the reality is far worse than we might expect. Daily Kos had an interesting article today that demonstrates WE are the next target of the American government. While I am inclined to question the veracity of this program, I wouldn't put it past the American government under the so-called leadership of this President.

It reminds me of a couple of quotes:

...a government is a living organism. Like every living thing its prime characteristic is the instinct to survive.

And:

Power is not static; it cannot be frozen and preserved like food; it must grow or die.

The existence of this "program" shows exactly how far we have strayed from those core American ideals that supported the birth of this nation. I have called for revolution in the past, but these kinds of governmental actions proves that we no longer live in the free society envisioned by our forefahters. Revolution, regardless of the form, may be our only salvation to prevent the continued perversion of the Constitution.