• "God invented war so Americans could learn geography" -- Mark Twain.

Saturday, April 20, 2013

Miranda as Prophecy - A Better Subversion

Along with news of the Marathon Bombing, the F.B.I. disclosed that an unknown person had mailed letters containing suspected ricin powder to the president and senator Wicker.  Far more important than the tittle-tattle risk which neither of the "intended victims" came close to incurring was the more ominous inference, which could be deduced from the incident, that the country has been taken into custody.

Within hours, it was reported that the F.B.I. had detained a man "in the area" with a backpack in which sealed envelopes had been found. (BBC) [1] Aha!  Sealed envelopes.  Q.E.D.

What area? we wondered; and how did the agents know that that backpack on that person had contained suspicious "sealed envelopes"?  The reports were devoid of such details -- the question of probable cause apparently is of no interest to the Fourth Estate.  Well they must have had something.... Indeed, but what?  Apparently nothing because the man with the suspicious envelopes was released. 

However, the following day it was reported that the F.B.I. had located a suspect on the basis of tell-tale word patterns.  As it turns out, both letters had used the phrase "I am KC and I approve this message."  The suspect, Kevin Curtis,  had also used the identical phrase in an online comment on a blog post in 2007, the only difference being the use of his full name.  (REUTERS) [2]

The speed and efficacy of the F.B.I. was breathtaking.  They had managed to obtain and serve warrants on an untold number of I.S.P's in a plethora of jurisdictions and plow through six years of global chat in order to discover the telltale needle in a heaping haystack of billions upon billions of chitter in the chatter.

Or, had they merely flipped a switch in a massive datamine of internet traffic filtering bytes through algorithms in search of a phrase?  In either case: Chill out dude -- Anything you say can and will be used against you in a court of law. 

Although the press was content to repeat whatever facts F.B.I. news releases presented to them, they appeared oblivious to the disturbing inferences which might be drawn from the facts the authorities saw fit to disclose.

If the incriminating phrase had been retrieved from a massive datamine of all our on-line (and telephone) communications, then the Government should at least give all of us  the proverbial Miranda warnings.

As a legal matter, Miranda warnings are required only upon being taken into custody. By the same token, the giving of them implicates being in custody.  But equally significant is the fact Miranda states; i.e. that anything said will be used against the declarant.  When anything we say "can and will" be used against us we are no longer free.

It is no doubt true that any statement anywhere can be used to a person's detriment.  But statements made in the open air of freedom get disbursed and lost.  There is a natural haphazardness to their being remembered or, just as likely, forgotten.  In contrast, statements made in custody are recorded. They are taken down as much as the suspect is locked up and this applies equally to statements made during interviews or personal telephones calls.  There is no privacy in custody; and where there is no privacy, there is no freedom.

Most people think of "custody" as a restraint of movement -- of being locked up in a tight space.  But that is only a derivative meaning.  More primarily the word custody means: "A keeping or guarding; care, watch, inspection, for keeping, preservation, or security." (Webster's Revised Unabridged Dictionary (1913), p. 358.)

It is necessary to distinguish confinement as punishment and custody as a precaution.  Accused miscreants were locked up in earlier times because it was next to impossible to keep watch over them otherwise. But it is not always necessary to lock up in order to watch over. Black slaves in the United States and collared Roman slaves in Rome were allowed to roam with an appearance of freedom because their colour or their collar rendered them under watch and inspection automatically.  No one would argue that these slaves were not in custody.  On the contrary their status was their detention.

Similarly, the fact that our words are being taken down for keeping and inspection means that we ourselves are being watched for security and are therefore ipso facto in custody even if we are allowed every appearance of free roaming.

The elimination of privacy -- that is to say, the taking custody of a nation -- was most irreversibly the creation of the Patriot Act.  But the ideological underpinnings which allowed the Act to be rationalised under an appearance of logic go back to California v. Greenwood (1988) 486 U.S. 35, which held that there is no expectation of privacy in garbage. Having deposited one’s garbage “in an area particularly suited for public inspection and, in a manner of speaking, public consumption,” a person “could have had no reasonable expectation of privacy in the inculpatory items that they discarded.” (Ibid.)

Yes, the High Court, actually said that.  They said it on the precedent of Smith v. Maryland (1979) 442 U.S. 735 which had held that dialled telephone numbers were not private. Entrusting garbage, the Greenwood Court intoned, was no different than dialling telephone numbers and “we doubt that people in general entertain any actual expectation of privacy in the numbers they dial.”   To be sure they did not; for, after all, the most very High Court had told them they did not.

We reported on Greenwood back in 2006 because we felt that it was significant in view of the Security Actions being taken by the Government at the time.  (And the Lord will not hear You on that Day )  But little heed was taken of chips in the wind as the Nation moved with determination to eliminate all potential dangers (as they have been called).

The vice of Greenwood is that it perverts our concept of privacy and, doing so, degrades our understanding of freedom.  The premise of Greenwood was that a person has no privacy in public because in public one is exposed to general view.  But, to say as much is to resort to a tautology masquerading as an argument.

It is true that "in public" a person is "in general view" but these two terms are not interchangeable with "no privacy."  What the tautology overlooks is the equally salient fact that "general view" and "surveillance" are not the same thing.  The former is haphazard and indifferent and it is these qualities which create the  space for freedom.  In public, others may notice what we do but for the most part are indifferent to our doings. Because passers-by are not keeping us under watch we are  able to go about our private business in public being left alone.  In contrast, ongoing, purposeful surveillance is the very core definition of custody because it does not leave one alone but rather follows, tracks, records one's every move with the very opposite of indifference.  What Greenwood allows is for the Commons to be turned into a jail and for freedom to be confined to the privacy of one's closet.

To say as much is not a sophistical switching of terms between "privacy" and "freedom."   It is an interchanging of terms which reflects the true meaning of "custody".  Freedom is not simply a question mobility and action.  It is, most essentially, a question of being not under guard.  We are free in public because we are not being watched and, not being watched, we are about our private business in the open.

The roots of Greenwood's misnformed constitutionalism lie in an 1890 Harvard Law Review article by Samuel D. Warren, Louis D. Brandeis entitled, and inceptionally defining, The Right to Privacy.  Not atypically, Brandeis' quill cut both ways.  While the article is credited with birthing the concept of "the right to be left alone," it used medieval English property law as a paradigm and analogised the right of privacy to the fee simple absolute.  In a much quoted paragraph, Warren and Brandeis wrote,

"The common law secures to each individual the right of determining, ordinarily, to what extent histhoughts, sentiments, and emotions shall be communicated to others.  ... [H]e can never be compelled to express them.  ...  The right is lost only when the author himself communicates his production to the public, -- in other words, publishes it. ... [But]  the common-law right is lost as soon as there is a publication."

In so stating, the authors analogised "privacy" to "curtilage" and "publication" to "conveyance." While the analogy suited the article's overriding purpose of delineating the contours of intellectual property it did not deal with and thus provided only a defective basis for assessing privacy in a constitutional context.

In that context, the focus must as much be on the limits of governmental power as on the individual's supposed choice to "disclose" himself.  Between the privacy of one's curtilage and ambit of restrained governmental power lies that in-between space known as "public freedom". 

The concept of voluntary "exposure" may be an adequate foundation for assessing the extent of commercial rights granted or retained in remainder.  But it is not adequate for determining the political contours of freedom. The idea that civic privacy is "lost" by a decision to "expose" one's self (or to "publish" one's garbage) tacitly assumes that everywhere else, not hidden, is government's unimpeded domain to do whatever it wants.   Likewise, it  implicitly converts public conduct to  an at-risk activity.

Taken to extremes, as it has been by the Government's asserted "right" to monitor and record e-mail and social chats, the ambit of privacy gets reduced to the curtilege of our skin.  Any contact outside of one's self becomes an "exposure" subject to surveillance, search, seizure.  Society is effectively atomized and the individual is left to what the Germans once called "inner emigration."   Life is turned into loneliness.

From all time, the world has understood how the existence of spies and delatores (professional snoops and denouncers) chills and snuffs out freedom. The Roman historian Tacitus called them  "a class invented to destroy the commonwealth." (Annals of Imperial Rome  Bk IV,  ch. 30)  But the United States Supreme Court has been impervious to the obvious.  While it has prohibited direct and specific infringements on freedom of expression it has consistently bent over acutely to affirm the Government's prerogative to gather intelligence.

Thus, in Laird v. Tatum (1972)  408 U.S. 1 the Supreme Court famously rejected a claim that  First Amendment rights were chilled "by the mere existence, without more, of a governmental investigative and data-gathering activity."  The information gathered, the Court intoned, was "nothing more than a good newspaper reporter would be able to gather by attendance at public meetings and the clipping of articles from publications available on any newsstand."  Previously in Uphaus v. Wyman, (1950) 360 U.S. 72 the high Court upheld a State's prerogative to "gather and publish information on a person's potentially subversive associations."

Laird's reasoning was beyond specious. Reporters do not have the power to prosecute, imprison and execute.  Government does not investigate to inform but to suppress.  State activity can simply never be analogised to private conduct.  In fact, because of what the State is as such, government participation in or open access to data-gathering of itself transforms the nature of the process. A billing error can be corrected, a libel can be sued; but no imprisoned dissident has successfully sued his government for malicious prosecution.

Equally specious is the argument that those who have nothing to hide have nothing to fear. Because all meaning is contextual a speaker who is being recorded is forced to pre-check and reconsider anything he says for possible misinterpretation and use against him in the future.

Specious as it is, the High Court's doctrine could be summarised as, "Far be it from us to second-guess the Government's legislative purposes; if you don't like it, stay at home."  We may now add, "And avoid chat or email."

Historically speaking, the very most High Court is in the highest of company.   Tacitus reports that when the Senate sought to prohibit the use of roving, undercover spies, Tiberius "with a harshness contrary to his manner, spoke openly for the informers, complaining that the laws would be ineffective, and the state brought to the verge of ruin if their use were abolished 'Better,' he said, 'to subvert the constitution than to remove its guardians.'" (Annals   Bk. IV, ch.30.)

Hail Caesar! 

©Woodchip Gazette 2013

[1] http://www.bbc.co.uk/news/world-us-canada-22190031

[2] http://uk.reuters.com/article/2013/04/18/uk-usa-obama-letter-idUKBRE93G0OW2013041

[3] http://wcg-journal.blogspot.com/2008/12/and-lord-will-not-hear-you-on-that-day.html