Friday, July 18, 2008

IT’S STILL HAPPENING HERE

I have gone over the text of “An Act To Further Protect Children”. I have also gone over the Letter to the Editor put into today’s (July 18th) edition of the ‘Boston Globe’ (http://www.boston.com/bostonglobe/editorial_opinion/letters/articles/2008/07/18/tools_needed_to_fight_crime_in_high_tech_age/), from Martha Coakley, “Massachusetts attorney general” [sic]. Let’s assume that it is from her and that either she or the paper’s staff are simply unfamiliar with the actual title of the office she currently holds.

The most ominous section of the Act is its Section 3, which changes the wording of a part of the existing state statute (Chapter 271, Sec. 17B of the Massachusetts General Laws). Here follows first the amended and then the original of Sec. 17B:

"Chapter 271 of the General Laws is hereby amended by striking out section 17B, as so appearing, and inserting in place thereof following section:-

Section 17B. Except as otherwise prohibited under section 2703 of Title 18 of the United States Code, whenever the attorney general or a district attorney has reasonable grounds to believe that records in the possession of (i) a common carrier subject to the jurisdiction of the department of telecommunications and energy, as defined in paragraph (d) of section 12 of chapter 159; or (ii) a provider of electronic communication service as defined in subparagraph (15) of section 2510 of Title 18 of the United States Code; or (iii) a provider of remote computing service as defined in section 2711 of Title 18 of the United States Code, are relevant and material to an ongoing criminal investigation, the attorney general or district attorney may issue an administrative subpoena demanding all such records in the possession of such common carrier or service, and such records shall be delivered to the attorney general or district attorney within 14 days of receipt of the subpoena. No such common carrier or service, or employee thereof shall be civilly or criminally responsible for furnishing any records or information in compliance with such demand. Nothing in this section shall limit the right of the attorney general or a district attorney otherwise to obtain records from such a common carrier or service pursuant to a search warrant, a court order or a grand jury or trial subpoena.

Notwithstanding the provisions of this section, a subpoena issued pursuant to this section shall not be used to obtain records disclosing the content of electronic communications, or subscriber account records disclosing internet locations which have been accessed including, but not limited to, websites, chat channels and newsgroups, but excluding servers used to initially access the internet. Nor shall the recipient of such a subpoena provide any such records accessed, in response to such a subpoena."

Thus the amended. Here is the original:

"Section 17B. Whenever the attorney general or a district attorney has reasonable grounds for belief that the service of a common carrier, subject to the jurisdiction of the department of telecommunications and energy, as defined in paragraph (d) of section twelve of chapter one hundred and fifty-nine, furnished to a person or to a location, is being or may be used for an unlawful purpose he may, acting within his jurisdiction, demand all the records in the possession of such common carrier relating to any such service. Such common carrier shall forthwith deliver to the attorney general or district attorney all the records so demanded. No such common carrier or employee shall be civilly or criminally responsible for furnishing any records or information in compliance with said demand."

This first thing that strikes me is that the original law was indeed bad enough. The DA need only have “reasonable grounds”, no court order is required, an “unlawful purpose” is mighty vague and certainly broad, and the telecoms are provided immunity. 1) “Reasonable grounds” is far too elastic to be trusted to the government police authority in these times, after decades of the weakening of the capacities of The People and (can it be a coincidence) an engorgement of the police authority and its stature in the media.

2) No court supervision results in the government police authority operating essentially independently of any sort of ‘review’ or of any authority capable of stopping any of its possible misfeasances before harm is done.

3) “Unlawful purpose” can be an awful lot of things, and as law ‘evolves’ or is ‘reformed’ – as we have been seeing continually with the metastasizing of ‘sex-offender’ law; then it would only take the passage of other laws making just-about-anything unlawful (including ‘disagreement with the government’ or – what the hell? – ‘politically incorrect views’).

4) Why would the telecommunications providers require civil and criminal immunity? Such a possibility would have at least provided the shadow of a possible accountability for any actions undertaken in conjunction with the police authority. But the telecom execs and their lawyers know damned well what the government police power is up to here, and they want to make sure that they’re covered, because if folks find out … something’s gonna hit the fan.

Amazingly, no serious reporting was ever done by the local media about the passage of even the original ‘17B’.

The revised ‘17B’ does not limit itself to sex-offenses. Shrewdly, although it is embedded in a sex-offense type law, the actual text does not limit the scope of any search to sex-offense related information; all that is required is that the desired material be “relevant and material to an ongoing criminal investigation”. And again, “reasonable grounds” are all that is required, a very low thresh-hold to meet.

(One thing that reading laws does indeed make you wonder: if there are so many lawyers who are pols, how do such vaguely worded laws ever get passed? Don’t these people have any professional competence as attorneys, let alone as legislators? Or is the potentially dangerous vagueness with all its potential for mischief actually intended? Oy.)

The attorney-general’s Letter to the Editor seems less than forthright, for all its assertive professional virtue. The fact that “the bipartisan bill passed overwhelmingly by the House and Senate” is no proof of its soundness. The Patriot Act, the Authorization To Use Military Force, the Military Commissions Act, and so many others also passed various into law enjoying huge vote-margins from legislators. It seems that sex-offense laws are in domestic legislation now what military budgets and expanded government powers laws are in national and foreign affairs: you can’t go wrong as a pol voting for it, and you could lose your office in an afternoon if you oppose it.

And in her recent career Coakley has surfed all this mania shrewdly and surely. The former priest Paul Shanley was convicted not only after an embarrassingly long jury deliberation but ultimately – as one juror later admitted – because the struggling jury had been given the word by the prosecutors that regardless of the strength of the case and its shifting witnesses and victims, to find him not-guilty would be to “send the wrong message”. So We are left still in the dark as to what he did and didn’t do; the conviction is a formal, but not a substantive, judgment.

She insists that all she wants is “the tools necessary to fight crime in a high-tech age”. If she meant ‘crime’ in general, then why is this thing buried in a sex-offense, protect-the-children sort of bill? And we notice that she did not say ‘to fight sex-crime’.

And are these ‘tools’ really necessary? The court-issued subpoena would still be served on the Internet Provider, and the information requested would be delivered to the police before the individual user was any the wiser; there is no imminent danger that Internet information would be ‘destroyed’ by the suspect or person-of-interest. It would only be if the subpoena were served on the individual suspect or person-of-interest that there might be a danger of evidence destroyed; but then again, once something is in the electronic universe, it can never actually be destroyed … so what’s the issue here, really? The ‘tools’ Coakley says she and her pals need seem unable to fix what she claims is the problem, which in turn does not seem to be a problem at all in the first place.

Can people in high public office be this dumb? Or is there something else going on under the table? Is this simply a ploy to make some power grab while the grabbing is good?

As Marty Klein noted on Alternet (www.alternet.org/story/87015/), “passing popular but constitutionally suspect laws can also be part of a testing process. If a questionable law survives a state court challenge, allied sponsors try to get them passed elsewhere (a popular strategy with laws restricting abortion)”. The parentheses in the foregoing are his own. He goes on to note that the “theo-conservative” legal groups have taken up the same tactic.

I have never suggested or suspected that there is any sort of ‘conspiracy’ in all of the assorted and not un-connected developments whose consequences now afflict Us. But I do think that terrible synergies have developed, and were triggered by certain seemingly harmless or small-scale stratagems and analyses. ‘Testing laws’ seems to be one of those; the average citizen presumes that no law would get passed unless legislators had discerned a need for it and examined the law to ensure that it would do what it was purported to do and no more; it would have no wider consequences. But this is hell-and-gone from what apparently set in during the Time of the Million Flowers Blooming, when advocates – so called – simply launched ‘laws’ into the legislature, where the denizens behaved more like pols – or bored adolescent school-kids on a late-May Friday afternoon – and merely passed the things to keep the ‘constituent’ or the constituent-Identity or just the advocates themselves happy and get them off the pol’s collective back. No frakkin’ wonder We are now faced with the heretofore inconceivably frakked up questions and issues regarding laws and public frenzies and pols who figure that if they’ve passed a bad law then the courts can figure it out.

And no wonder that when 9/11 came along, and all this sort of thing had been going on for decades with the feminist and then the more ominously ‘bipartisan’ sex-offender initiatives, that the pols just figured they’d go with their usual modus operandi and give the Executive what it demanded just as they had given the Identities what they had demanded. Textbook civics this ain’t. Nor has it been for a hell of a long time, in ‘American’ years.

‘Sensitivity’ (and insensitivity), ‘patriotism’ (and unpatriotic words or acts or thoughts) … these are the trumps of the Left and the Right respectively. Against them, no appeal to ‘reason’ or ‘common sense’ or ‘maturity’ presently has any effect; and this is proved by the fact that no pol will entrust his or her mealticket to reliance on such ‘unreal’ things. No, they’ll just keep keeping the noisiest folks happy – and the corporations – and hope they’re outta town and retired by the time anything manages to hit the fan. Most unimpressive – Obi Wan has not taught them well. But maybe by now they’re all unteachable, and may have been when they were elected.

This whole sex-offense thing demonstrates ‘trumping’, the capacity to override factors that would usually support perspective, context, and proportion in the analysis of any particular issue. For impatient and self-assured revolutionaries, or revolutionaries who don’t know whether their ideas are sound but know they want a piece of the pie, the last thing they want is to waste time engaging in such behaviors as seeking perspective, assessing context, and taking proportion into account. Not coincidentally, it is precisely those behaviors that are considered bench-marks of an adult ability to ‘process’ ideas. But the Revolutions of the Identities did not need to burden themselves with ‘adulthood’, and neither did they need ‘adulthood’ in The People, which would have simply gotten in the way.

Coakley has surfed this. Her pal Wendy Murphy, a Boston feminist attorney, was one of the major players in – among other things – the monstrously deformed Duke gang-rape case-that-wasn’t, where she saw utterly no problem with the fact that justice had been obstructed, since ‘facts don’t matter’ and if your intention is to relieve ‘oppression’ then whatever eggs are broken in the process are just collateral damage, and anyway: if the accused are men, then they’ve probably done something else wrong anyway, or indeed are guilty simply by being male in the first place. Such sentiments are revolutionary, if not downright Leninist, and create in this country what is for all purposes a Kulak class, guilty simply by virtue of its very being.

This is the level of legal discourse informing some of the most weighty issues to face the Commonwealth and the Republic since the Founding.

We are in a heepa trubble.

Nor can We ignore the fact that Bush’s infamous “9/11 changed everything!” bray is simply the extension of the sex-offense mania’s ‘emergency’ that purportedly exists because the ‘pain’ and the ‘outrage’ surrounding ‘sex offenders’ have – although it’s never so baldly stated – rendered classic American Constitutional protections ‘quaint’, if nothing worse.

Yet the country had gone on for more than 200 years, with – if the advocates are to be believed – massive amounts of ‘abuse’ taking place everywhere all the time (as they would also assert – with equally confounding implications – about all of Western and even world civilization). What does this say to Us?

Justice Kennedy in a recent opinion stated that the Constitution is designed to stay in force no matter what the uproars of the day. And if there is anything that 'trumps' the Constitution, then – again – we are in a heepa trubble. But this context and perspective is precisely not what We are supposed to reach.

We are being used. Our pols are at best too terrified of becoming dis-elected and at worst to frivolous and cynical – rising to the level of treachery, I would say – to stand up and say what needs to be said.

We shall have to do this Ourselves.

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2 Comments:

Anonymous David said...

Amen.

5:38 AM  
Blogger wayne fontes said...

Welcome back Publion.

6:49 PM  

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