Judge Posner Says NSA Should Be Able To Get Everything & That Privacy Is Overrated

from the and-he's-wrong dept

Judge Richard Posner is probably one of the most well-known and quoted appellate judges around. He's an excellent writer as well, and I enjoy many of his books and his rulings, though when he gets things wrong, he seems to get them so very, very wrong. When he's on, he's great. For example, his recent attack on copyright trolling and defending the public domain was great. He's also been good on patents. But... on surveillance he seems all too eager to side with the government.

Given that, there was little surprise that at a recent conference on cybercrime, Posner unloaded with some of his more ridiculous beliefs, essentially saying that the NSA should be able to spy on whoever they want because "national security" is more important than privacy (or the 4th Amendment, apparently):
“I think privacy is actually overvalued,” Judge Richard Posner, of the U.S. Court of Appeals for the Seventh Circuit, said during a conference about privacy and cybercrime in Washington, D.C., Thursday.

“Much of what passes for the name of privacy is really just trying to conceal the disreputable parts of your conduct,” Posner added. “Privacy is mainly about trying to improve your social and business opportunities by concealing the sorts of bad activities that would cause other people not to want to deal with you.”
Ah, the old "if you've done nothing wrong, you've got nothing to hide" trope. If that's true, then it does make you wonder what Posner himself is hiding. As Dave Maass pointed out, Judge Posner has redacted the name of his trust on his financial disclosure form.
Posner doubled down on this by claiming that if someone looked at his mobile phone, they'd just find pictures of his cat and nothing too important:
“If someone drained my cell phone, they would find a picture of my cat, some phone numbers, some email addresses, some email text,” he said. “What’s the big deal?

“Other people must have really exciting stuff,” Posner added. “Do they narrate their adulteries, or something like that?”
No, they may not narrate their adulteries, but they may actually give away lots of information that, say, could be used to suggest adultery, which might then be used to blackmail someone. Or to push them to commit suicide.

Or to just embarrass them. To take an example that Judge Posner might actually relate to, his fellow appellate court judge (and about equal in "famous judge" stature) Alex Kozinski. Back in 2007, a disgruntled lawyer figured out a way to reach a personal web server that Judge Kozinski used to store random "funny things" he found online, including some "racy" images. The press picked up on the story and went crazy about this judge who apparently was keeping "obscene" images, including one that the press repeatedly claimed showed "bestiality." This was all over the press, including the LA Times. If you want to see the "bestiality" video, you can view it here on YouTube.

The point being, Kozinski wasn't really doing anything "wrong" (other than not properly securing his own personal web server). And yet someone (a lawyer unhappy with Kozinski) was able to take what he found on that web server, which was basically some jokey videos and pictures, and turn it into a big (and misleading) deal in the mainstream media, leading to a panel of federal judges having to do a full investigation. Yes, eventually they cleared Kozinski, but the point remains: if someone wants to make your life hell, and can get access to stuff you wanted kept "private," they can often do so. Even if you're a famous, big shot, appellate court judge.

Even worse, as Glenn Greenwald reminds us, Judge Posner is a complete and total hypocrite on this issue -- in a 2011 case concerning whether or not citizens have a First Amendment right to film the police, Posner was suddenly worried about the police's right to privacy:

JUDGE POSNER: Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers.

ACLU attorney Richard O’Brien: Is that a bad thing, your honor?

JUDGE POSNER: Yes, it is a bad thing. There is such a thing as privacy.

Apparently it only applies to those in power, though. If there's any better demonstration of the privilege of the rich and powerful, it's difficult to think of an example that beats Judge Posner poo-pooing the idea that the public should be concerned about the NSA and its surveillance powers.

Filed Under: 4th amendment, alex kozinski, nsa, privacy, richard posner, surveillance


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  1. icon
    Cal (profile), 10 Dec 2014 @ 8:18am

    Re:

    It is a felony to break the Oath, plus perjury.

    The requirement for all Federal and State Civil officers to give their solemn and binding Oath is established in Article VI, Section 1, Clause 4.

    Federal law regulating oath of office by government officials is divided into four parts along with an executive order that further defines the law for purposes of enforcement.

    5 U.S.C. 3331, provides the text of the actual oath of office the three branches of our government, the military, all law enforcement, the heads of the States, all federal employees are required to take before assuming office.

    5 U.S.C. 3333 requires the three branches of our government, the military, all law enforcement, the heads of the States, all federal employees sign an affidavit that they have taken the oath of office required by 5 U.S.C. 3331 and have not or will not violate that oath of office during their tenure of office as defined by the third part of the law.

    18 U.S.C. 1918 provides penalties for violation of oath of office described in 5 U.S.C. 7311 which include: (1) removal from office and; (2) confinement or a fine.

    5 U.S.C. 7311 which explicitly makes it a federal criminal offense for anyone employed in the United States Government to “advocate the overthrow of our constitutional form of government”.

    The definition of “advocate” is further specified in Executive Order 10450 which for the purposes of enforcement supplements 5 U.S.C. 7311.

    Executive Order 10450 provision specifies it is a violation of 5 U.S.C. 7311 for any person taking the oath of office to advocate “the alteration … of the form of the government of the United States by unconstitutional means.”
    Our form of government is defined by the Constitution of the United States.
    Thus, according to Executive Order 10450 (and therefore 5 U.S. 7311) any act taken by government officials who have taken the oath of office prescribed by 5 U.S.C. 3331 which alters the form of government other then by amendment, is a criminal violation of the 5 U.S.C. 7311.

    Webster’s 1828 Dictionary says for “Constitution”: “…In free states, the constitution is paramount to the statutes or laws enacted by the legislature, limiting and controlling its power; and in the United States, the legislature is created, and its powers designated, by the constitution.”
    If any Branch fails to obey the “supreme Law”, then, in order to preserve the Rule of Law, the other Branches, or failing that, the States or the people, must overrule them”.

    But who is constitutionally charged with enforcing the US Constitution and each state Constitution and all laws of our land that are in Pursuance thereof the US Constitution?

    "We the people" are as the trained Militia of the several states. But until we bring the militia back, and start training we have no one who is lawfully assigned those duties.

    The Preamble to the US Constitution; starts with:
    “We the People of the United States do ordain and establish this Constitution”,

    By those words it is saying that “We the People” are the source of any and all legal status of the state and federal governments. “We” created them for specific purposes, and it was NOT to destroy our lives, control us, spy on us, track us, or murder us. Basically all public officials – state and federal representatives, state and federal law enforcement, state and federal judges, the multitude of state and federal bureaucracies – are called “public servants” for a reason – they are literally our hirelings.

    Each state's Militia is made up of “We the People” protecting our own interests, homes, states, nation, and enforcing our governments. The Militia has as its constitutionally assigned duties to:

    Enforce the US Constitution and each state's Constitution,
    Enforce and keep the “Laws of the Union” (which is constitutional laws ONLY),
    Protect the country against all enemies both domestic and foreign, and
    “to suppress Insurrections and repel Invasions”.

    The US Constitution guarantees to each state its own “Republican form of government”. It is every state's Militia that is the ONLY Constitutionally assigned force to “counter Invasions” and “Domestic Violence” within our nation.

    Tench Coxe: “Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American...The unlimited power of the sword is not in the hands of either the federal or state governments but, where I trust in God it will ever remain, in the hands of the people.”

    Richard Henry Lee: "A militia, when properly formed, are in fact the people themselves …"

    George Mason, Co-author of the Second Amendment: "I ask, Sir, what is the militia? It is the whole people except for a few public officials. To disarm the people is the best and most effectual way to enslave them."


    “Constitutional rights may not be infringed simply because the majority of the people choose that they be.” Westbrook v. Mihaly, 2 C3d 756

    ”The Legislature, either by amending or otherwise, may not nullify a constitutional provision.” Rost v. Municipal Court of Southern Judicial District of San Mateo (1960)

    There can be no sanction or penalty imposed upon one because of his exercise of Constitutional rights.” Sherar v. Cullen, 481 F. 946

    “Where rights secured by the Constitution are involved, there can be no rule-making or legislation which would abrogate them.” U.S. Supreme Court in Miranda v. Arizona, 380 U.S. 436 (1966)

    “State Judges, as well as federal, have the responsibility to respect and protect persons from violations of federal constitutional rights.” Gross v. State of Illinois, 312 F 2d 257; (1963).

    “Decency, security, and liberty alike demand that government officials be subjected to the same rules of conduct that are commands to the citizen. In a Government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Crime is contagious. If government becomes a lawbreaker, it breeds contempt for the law it invites every man to become a law unto himself and against that pernicious doctrine, this court should resolutely set its face.” Olmstead v U.S., 277 US 348, 485; 48 S. Ct. 564, 575; 72 LEd 944 U.S. versus Verdrigo-Urquidez, 110 S. Ct. 1056, 1060-61 (1990)
    South v.Maryland/Bowers v. DeVito

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