Are the Contents of my iPhone Protected by the Fifth Amendment?

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

The question is: if I lock my iPhone with the intent of keeping its contents a secret, can I be compelled to unlock it? Or, before or after my death, can the government legally hack into my iPhone in order to reveal its contents?

In most cases, I believe the answer to be "no". I believe that hacking into someone's personal cell phone is tantamount to forcing him to testify against himself. And, the simple act of putting a password and encrypting the contents of a cell phone is a statement that should be interpreted to mean, "I wish to invoke the rights afforded me by the Fifth Amendment and not allow my phone to bear witness against me."

Our personal cell phones are almost like extensions of our brains in the extent to which we use them to think, muse, comment, plan and remember things about our lives. That is a big part of the reason why the password and encryption that we place on them should be protected by our 5th Amendment right against self-incrimination, in spite of the difficulties that this might cause for law enforcement.

Ironically, in the case of the San Bernardino shooter's iPhone 5c (which is the reason that this issue is currently in the news), I believe that the government has every right to compel Apple Computer to unlock the phone if Apple has it in their ability to do so, BECAUSE THE SHOOTER WAS USING HIS WORK PHONE WHICH WAS, AND IS, PROPERTY OF THE STATE OF CALIFORNIA, AND ON WHICH HE COULD HAVE NO EXPECTATION OF PRIVACY.

So, I expect Apple to lose this case and ultimately unlock the shooter's phone for the FBI. I also believe that the contents will not reveal anything new because the shooter had set up the phone to sync to iCloud (the FBI only wants the data since the last web sync) and knew that the phone was legally not even his. Therefore, I find it difficult to imagine that he could have been using it for any nefarious purpose.

When considering points of law such as this, I like to transport myself back in time and try to find useful analogies to 18th century jurisprudence. The closest analogy to a locked iPhone is a padlocked personal diary. It is my opinion that the contents of one's personal diary should be inadmissible in court unless the defendant has made prior reference to the diary, or used certain entries in support of his defense, in which case the entire diary would be in play. Since it can be reasonably imagined that one's personal cell phone could contain private thoughts and musings, a simple statement to that effect by the defense should render its contents safe from prying eyes on 5th Amendment grounds.

While this clearly represents a serious setback to law enforcement and the prosecution in certain cases (and, in fact, does so on a regular basis), we must remember that it is the communication that occurs between the cell phone and other phones or through the Web that are of most interest, and these communications are NOT shielded by the 5th Amendment. While the government may not be able to legally force a defendant to turn over the password to his private phone, they can certainly get a warrant to monitor and log all his data and voice communications, which could help them build a case. And, IF THOSE COMMUNICATIONS SHOW THAT THE DEVICE (iPHONE, CELL PHONE, ETC.) WAS USED IN THE COMMISSION OF A FELONY, THEN THE DEVICE ITSELF, INCLUDING ALL CONTENTS THEREIN, ARE FAIR GAME.

So, while one's personal diary, or personal cell phone, in most cases should be shielded from prying eyes by the Fifth Amendment, there are circumstances in which these protections would not apply.

Too Big to Fail = Too Big to Exist

The Milwaukee Fed's Mr. Clean wants to tidy up systemic risk

The fact that Neel Kashkari was on the front lines during the 2008 financial crisis adds special urgency to his calls to dismantle the major banks, a position that I support.

When the Federal Reserve and U.S. Congress chose to keep the major banks alive and intact, they created huge systemic problems that are adversely affecting the financial markets to this day.

The main problem, as I see it, is in terms of price and competition. Currently, the market for financial services is dominated by a handful of big players who offer relatively few product options and limited price competition. The majors must be broken apart into regional banks that can compete with one another, and compete with other local and regional banks. These smaller banks, being closer to their customers and local businesses, are generally more willing to take a chance and underwrite loans that the majors would not touch. Additionally, more competition will help to improve customer service and lower fees for the retail customers.

Secondly, "too big to fail" carries moral hazard and an implicit guarantee that can distort risk evaluation and decision-making by investors and the banks themselves, exacerbating the "too big to fail" problem.

Finally, we need to restore the firewall that previously existed between depository institutions and investment banks. We cannot allow investments in derivatives to put FDIC insured deposits at risk.

Therefore, on the depository side, the major banks should be broken down into distinct regional banks with new names and a new organizational structures. The original parent bank can retain the investment banking activities, but can no longer accept federally-insured deposits.

This will serve to streamline and invigorate the financial industry, for the benefit of the nation.

It Takes Chutzpah

I wonder if proof that his mother had sworn allegiance to Canada would wipe
that smug look off his face... (Source: Newsweek)

Leave it to Ted Cruz to believe that he is actually eligible to serve as President of the United States, in spite of having a Canadian birth certificate and dual citizenship:

Ted Cruz has never renounced his Canadian citizenship, so if things don't go well for him
here, he's always got a place to stay north of the border.Source: mrconservative.com

By his logic, since his mother was born in Delaware, that makes him a "natural born" citizen of the United States. EXCEPT, for some reason, his mother applied for and received Canadian citizenship during the time she was living in Canada, along with her Cuban-born husband.

Source: Newsweek

Clearly, the "natural born citizen" clause must be clarified by the courts, as it has wide-ranging implications. Are the children born to a foreign mother in the United States temporarily (or illegally), automatically U.S. citizens upon birth? The answer is not at all clear. It would seem to me that the child is whatever the parents are, independent of the geography of the live birth. The courts have already held that the children of diplomatic attaches on assignment in the States are NOT eligible for U.S. citizenship because the parents have a sworn allegiance to another nation and not to the United States. For me, the same logic applies to foreign nationals who come to the U.S. to give birth in order to imbue their offspring with U.S. citizenship.

So, it seems that Ted Cruz was born in Canada to two parents who had both sworn allegiance to Canada at the time of his birth, which seems to me to be WHOLLY AND COMPLETELY INADEQUATE to justify eligibility to hold the highest elected office in the land.

Democrats for John Kasich

Checking the location of CIA safehouses on your personal Blackberry, are you?

Many Democrats may be relishing the prospect of a Hillary v. Donald matchup. His insanity and propensity for grandiose and irresponsible comments would turn off mainstream voters on both sides of the aisle, making Hillary look moderate and even-headed by comparison.

However, what these voters must realize is that she is facing the real risk of being forced into a plea agreement over her use of a personal email server, leading to her disqualification from the race.

From my point of view, her decision to install a personal email server with which to conduct official State Department business indicates that she is unfit to serve as President.

In the time I worked as a middle school teacher I wanted to use a Gmail account and set up Google Drive folders for my students to facilitate the distribution and collection of work. However, I quickly realized my potential liability in the event of allegations of inappropriate communications, and nixed the idea. How is it that I, as a classroom teacher, understood this, but not Hillary Clinton as Secretary of State,? Not someone I want as Commander in Chief.

Which gets to my main point -- if any of the current crop of Republican candidates, other than John Kasich, wins the nomination, we could be in for some serious trouble.

So, I encourage Democrats to contribute to the Kasich campaign, just in case federal charges are leveled against Clinton.

To get started, please click here: www.johnkasich.com/donate

Heil Donald

We must be careful with Donald Trump, now that he has gained real traction in the primary race. Based on the overall tenor of his campaign, I view him more as a force for evil than as a force for good. If America is great, it is great because of the values of freedom and equality enshrined in our Declaration of Independence and Constitution. His hostile, xenophobic and verbally demeaning approach is threatening to lead us down a road that will prove corrosive to the moral fiber of this country.

Ironically, I don't believe that he really expected to be the frontrunner in the Republican primary this late into the race. His primary objective in this race was to be a spoiler to Jeb Bush, who, as Governor of Florida, had blocked his efforts to set up a casino in Miami. In fact, Trump had overwhelming support for his casino projects in Florida, and Bush was just about the only one standing in his way with the power of the executive veto.

It seems to me that he is actually surprised, in a kind of ironically funny way, that Republican voters have taken to his clownish antics, hyperbole, and use of the same campaign tricks that launched Hitler from obscurity and led to the Third Reich. I think that he is privately laughing at those that support him for being idiots and fools.

At the time Hitler entered the race, the German people were demoralized by years of economic hardship. Hitler's demonization of Jews, Gypsies and other "lesser races" fed the need of a frustrated and angry populace for someone to blame.

And, it does not seem to be by accident that Donald Trump is following in Hitler's footsteps: in fact, one of his ex wives has stated that he often read Hitler's speeches, apparently in preparation for a future campaign run.

No matter how serious the problems our nation faces we must not take even one step down a road in which we begin to place blame at the feet of vulnerable minority groups who do not have a voice. If we begin to unleash those evil forces we may not be able to control them. For this reason, Trump must be stopped. He has summoned the Devil by launching his campaign in a tirade against illegal immigrants from Mexico, and then later by suggesting that we should be afraid of all Muslim immigrants.

In 1932 the Germans could have saved the world great pain if more of them had taken the time to think about what Hitler was saying, instead of focusing on how what he was saying made them feel.

Let's hope that the American voter can have the common sense to see through Trump and his manipulative game.

Get the NSA to Church

The NSA Needs to get some Religion in the Form of Congressional Oversight

The executive branch is conducting expansive domestic and global surveillance operations, unprecedented in scope and means, to collect and analyze information and communications of millions of people. These operations have raised serious questions about whether these activities are necessary, proportionate, and legal.

Given that neither Members of Congress nor the public were not — and still are not — adequately informed about these programs, Congress should form a special joint investigatory committee to conduct a full investigation and issue recommendations. Americans have confronted these issues before. Today’s Congress should learn from historical examples and form a new investigatory committee modeled after notable and relevant past successes.

In the early 1970s, the public and Congress learned that the CIA was collecting millions of Americans’ communications. In response, Congress created the Church Committee as a special investigatory committee and adopted a bipartisan approach to independently investigate activities conducted by both Democratic and Republican administrations. The Church Committee also formed a cooperative relationship with the intelligence community to access relevant information, while undertaking rigorous scrutiny of intelligence programs and maintaining the objectivity and credibility to assess them.

The investigation is still considered one of the most successful in U.S. history. It provided a significant accounting of the executive’s activities, led to meaningful reforms that governed surveillance law for more than three decades, and restored public confidence that Congress was conducting its constitutional oversight role. The Church Committee demonstrated that a special investigatory committee can, with political will and good leadership, effectively investigate executive surveillance and intelligence activities—and their abuses.

Source: https://www.eff.org/files/2015/12/14/a_new_church_committee_final.pdf

Common Sense Gun Reforms

Stymied for 7 years -- it is enough to make a man cry!

Obama and the Democratic leadership are perplexed beyond words over their inability to leverage mass murders in support of gun control. No matter how horrific the crime, they seem to be unable to rally public opinion to the notion that increased gun control will make us safer.

Of course, that is for good reason, since keeping weapons out of the hands of law-abiding citizens will not make us safer, and the Democratic leadership has shown a predilection for legislation that directly infringes on the rights of legal gun owners, which has cost them the trust of the majority of Americans when it comes to this particular topic.

They support measures such as legislation that would permit the victims of gun violence to sue the manufacturer of the weapons used as well as a 50% levy on ammunition, two measures that would effectively put the gun industry out of business.

Which is a shame, because there are basic, common sense steps that can make us safer, and on which our representatives should be able to reach a consensus.

For example, it is clear that the mentally ill, as defined as anyone who has been involuntarily committed to a mental institution or deemed unfit by way of legal proceeding, should not be permitted to own a gun. However, as demonstrated by the mass shooting at a Lafayette movie theater, all that a shooter has to do is cross state lines in order to conceal the fact that he is mentally ill. Therefore, it is imperative that we establish a national registry of the mentally ill so that this information can be made available to the federal background check system and law enforcement, with penalties for those states that do not comply with the law. A provision must be put in place for an individual to petition a judge for removal from this list once they can be deemed fit.

Similarly, anyone who has been the subject of a protection order should be immediately added to a national database which would prevent them from owning a gun until they can convince a judge that they are no longer a threat.

Finally, it seems clear to me that all gun sales, including transfers of ownership between individual owners, should be subject to the background check provision. A system that effectively keeps guns out of the hands of convicted felons, the mentally ill and those who have been subject to protection orders must not be compromised by loopholes that facilitate straw purchases and transfers.

Such measures would do little to infringe on the rights of the vast majority of law-abiding citizens, but would go far to help keep guns out of the hands of those who should not have them.