From NPR: In Fighting FBI, Apple Says Free Speech Rights Mean No Forced Coding

This is new to me. The list of things that are alleged to fall under the heading of free speech seems limitless.


- Click here for the article.

The Justice Department wants Apple to write special software to help it break into the iPhone used by one the San Bernardino terrorists.

In its filing opposing a federal judge's order to help the government, Apple says it would be a violation of its First Amendment rights to free speech.

It's pretty well established that speech comes in many forms, says Eric Goldman, a professor at Santa Clara University School of Law. "We can talk, we can write words, we can draw paintings, we can take photographs ..."

Goldman says back in the 1990s, courts began to confront the question of whether software code is a form of speech. Goldman says the answer to that question came in a case called Bernstein v. US Department of Justice.

Daniel Bernstein was a student at the University of California, Berkeley, who created an encryption software called "Snuffle." Bernstein wanted to put it on the Internet, and the government tried to stop him using a law meant to stop the export of firearms and munitions.

Goldman says the student argued that his code was a form of speech.

"It clearly had expressive intent about what message the software author was trying to send to the world," Goldman says. "It was trying to say, 'I believe that privacy is important, and I'm going to use this software in order to express that.' "

The 9th U.S. Circuit Court of Appeals agreed, and software has been treated as a form of speech ever since.
Based on that, Apple is arguing that the First Amendment also prevents the government from telling it what to say — in this case, that it's OK to break through the security on its phones.

Security trumps Civil Liberties

I guess there's no better verb to use.

This part of an occasional series looking at how the general public handles this seemingly inevitable trade-off between freedom and security. Little surprise that during times of crisis people are willing to yield on civil liberties like free speech and press, and procedural freedoms against unreasonable search and seizures and self incrimination.

Given that there have been no large scale attacks sustained in the nation in some time, and ISIS has been out of the news for a while, it's worth figuring out what's driving this attitude. Language used on the campaign trail is a likely suspect.

- Views of Government’s Handling of Terrorism Fall to Post-9/11 Low.

Concern over government restrictions on civil liberties has fallen dramatically since July 2013, following Edward Snowden’s leaked details about NSA surveillance programs. At that time, more expressed concern that government policies had gone too far restricting civil liberties (47%) than that they did not go far enough to protect the country (35%).

The share expressing greater concern that policies do not go far enough to protect the country is now roughly the same as the historical high seen in early 2010, shortly after the failed Christmas-Day terrorist attack on an airliner en route to Detroit (when 58% said policies did not go far enough).

Both Republicans and Democrats have become more likely to say that the government’s anti-terrorism policies do not go far enough to protect the country (rather than that they have gone too far restricting civil liberties) since Snowden’s disclosures in 2013. But the shift has been more pronounced among Republicans. Slightly more than seven-in-ten Republicans (71%) now say their greater concern is that anti-terrorism policies do not go far enough, up 14 points since January (57%) and 33 points since July 2013 (38%).

Americans Evaluate the Balance between Security and Civil Liberties

Here's the poll the previous story referred to.

- Click here for it.

And here are a few of its graphs:

From EurekAlert: Survey finds majority who believe it is sometimes necessary for government to sacrifice freedoms

Its a perennial trade off - security v freedom. People are willing to give up lot's in the way of personal freedom in exchange for security - even if its just the illusion of security. There's little surprise in these findings. File this under a variety of things, including individual liberty, Bill of Rights, foreign policy, and public opinion.

- Click here for the article. 

A majority of Americans say it can be necessary for the government to sacrifice freedoms to fight terrorism, according to a new national survey conducted by The Associated Press-NORC Center for Public Affairs Research. Fifty-four percent of Americans say it can be necessary, 45 percent disagree. And about half of Americans think it is acceptable to allow warrantless government analysis of internet activities and communications--even of American citizens--in order to keep an eye out for suspicious activity, but about 3 in 10 are against this type of government investigation.

"In the aftermath of the attacks in Paris and California, we are seeing the public's concern about being personally affected by terrorism evolve. For instance, 20 percent of Americans are very concerned that they or a family member could be a victim of a terrorist attack, up from 10 percent in 2013," said Trevor Tompson, director of The AP-NORC Center. "The survey also found that respondents are just as concerned about attacks by Islamic extremists as they are about home-grown terrorists."

Here's something from the study that might be helpful for your paper. The candidates from each party have to respond to the opinions of the activists in their party, so this info helps us understand why Democratic and Republican candidates are taking different positions on the issue.

- Two-thirds of Republicans favor the analysis of internet activity and communication by the government without a warrant. Fifty-five percent of Democrats and only 40 percent of independents agree. 

- While Republicans and Democrats are equally anxious about the possibility of being personally affected by domestic terrorism, two-thirds of Republicans and half of Democrats are greatly or somewhat concerned about becoming a victim of Islamic extremism in the United States.

- Click here for more commentary on the poll.

Regarding Franklin's quote

The previous post will call to mind Benjamin Franklin's famous quote. I stumbled on one person's explanation of the context of the quote. You might find it worth a quick read. It involves a power struggle during the colonial era.

- Click here for the article.

The words appear originally in a 1755 letter that Franklin is presumed to have written on behalf of the Pennsylvania Assembly to the colonial governor during the French and Indian War. The letter was a salvo in a power struggle between the governor and the Assembly over funding for security on the frontier, one in which the Assembly wished to tax the lands of the Penn family, which ruled Pennsylvania from afar, to raise money for defense against French and Indian attacks. The governor kept vetoing the Assembly’s efforts at the behest of the family, which had appointed him. So to start matters, Franklin was writing not as a subject being asked to cede his liberty to government, but in his capacity as a legislator being asked to renounce his power to tax lands notionally under his jurisdiction. In other words, the “essential liberty” to which Franklin referred was thus not what we would think of today as civil liberties but, rather, the right of self-governance of a legislature in the interests of collective security.

What’s more the “purchase [of] a little temporary safety” of which Franklin complains was not the ceding of power to a government Leviathan in exchange for some promise of protection from external threat; for in Franklin’s letter, the word “purchase” does not appear to have been a metaphor. The governor was accusing the Assembly of stalling on appropriating money for frontier defense by insisting on including the Penn lands in its taxes–and thus triggering his intervention. And the Penn family later offered cash to fund defense of the frontier–as long as the Assembly would acknowledge that it lacked the power to tax the family’s lands. Franklin was thus complaining of the choice facing the legislature between being able to make funds available for frontier defense and maintaining its right of self-governance–and he was criticizing the governor for suggesting it should be willing to give up the latter to ensure the former.

In short, Franklin was not describing some tension between government power and individual liberty. He was describing, rather, effective self-government in the service of security as the very liberty it would be contemptible to trade. Notwithstanding the way the quotation has come down to us, Franklin saw the liberty and security interests of Pennsylvanians as aligned.

Can we have a reasonable public debate about the proper extent of surveillance in a free society?

I promise to have some useful links up soon related to the National Security Agency's access to telephone and computer records, but since we've touched on the role of an educated population in a republic I thought this 2007 David Foster Wallace quote highlighted by the Dish recently raises an important question the ability the public to have this debate:

“In the absence of such a conversation, can we trust our elected leaders to value and protect the American idea as they act to secure the homeland? What are the effects on the American idea of Guantánamo, Abu Ghraib, Patriot Acts I and II, warrantless surveillance, Executive Order 13233, corporate contractors performing military functions, the Military Commissions Act, NSPD 51, etc., etc.? Assume for a moment that some of these measures really have helped make our persons and property safer—are they worth it? Where and when was the public debate on whether they’re worth it? Was there no such debate because we’re not capable of having or demanding one? Why not? Have we actually become so selfish and scared that we don’t even want to consider whether some things trump safety? What kind of future does that augur?”

Notice that he's not saying that we are prevented from having such a debate (though one could argue that that is the case if certain facts are kept from the public) but whether we can have such a debate. This seems to lie at the heart of some of the material I tried to present in the introductory lectures.

Read the short article this is pulled from - might make good fodder for conversation Monday.

Here's a provocative start:

What if we chose to regard the 2,973 innocents killed in the atrocities of 9/11 not as victims but as democratic martyrs, “sacrifices on the altar of freedom”?* In other words, what if we decided that a certain baseline vulnerability to terrorism is part of the price of the American idea? And, thus, that ours is a generation of Americans called to make great sacrifices in order to preserve our democratic way of life—sacrifices not just of our soldiers and money but of our personal safety and comfort?