In late 2002, Lawrence Lessig (Stanford law professor) reminded Open
Source participants that they needed to put up or shut up; they (we)
needed to join and donate to organizations fighting for the freedom to
develop and use Open Source Software. E.g.:
I did so. Shortly thereafter I read EFF's analyses on
The analysis of PATRIOT Act II galvanized me to become proactive in
politics. Showing up at the polls isn't enough -- you have to get out
there and educate neighbors and win elections.
By now I've read some of PATRIOT Act I and most of PATRIOT Act II.
But mostly I rely on others to ferret out the details and the
Here's what I see:
- In English and US law, there is an assumed right to privacy. "A
man's home is his castle." This is part of the social contract we
make when we agree to be citizens with a shared destiny.
- There are legitimate reasons to breach this assumption, if there
are sound suspicions a person is a menace to society.
- Powerful people and institutions have historically used law
enforcement for their own interests. These abuses include spying on
the opposition political parties, harassing those who speak out, etc.
They justify this by fudging the "menace to society" rule.
- We have therefore evolved a balance between society's legitimate
needs for law enforcement and right to privacy.
- Much of this balance is based on "due process" and constraints
against "illegal search and seizure". The basic requirement is that a
judge (nominally a trusted independent third party) sign a warrant for
search before LEO's can breach the assumed privacy.
- Law enforcement agencies and personnel consistently try to
avoid, stretch, circumvent, or otherwise abuse this arrangement.
Doing so is obviously the right thing to do because the guy being
protected is obviously a menace to society.
In other words, there are reasons that honest, sincere people would
want to circumvent "due process".
- Unfortunately law enforcement people and agencies sometimes get
it wrong . The obvious bad guy turns out to be innocent, though his/her
life is now in ruins. Oops.
Further, letting law enforcement agencies bend the rules for honest
reasons opens the door to dishonest, insincere abuses as well.
Or as Fred McGalliard puts it:
The problem is that if we let the "good" guys catch the "bad" guys
with tools that are not well enough controlled, i.e.., legal, then the
bad guys wearing good guy shirts can catch us good guys by simply
calling us bad guys. You can't base law on whatever the "good" guys
say. Everyone is someone else's bad guy.
[2006. Private communication, reprinted by permission]
So we muddle along with rights protected except with a judge's
approval, and some bad guys going free.
- The PATRIOT Act provisions were available in one form or another
around in law enforcement circles long before Sept 11, 2001. They
represent a wish list for circumventing the normal due process
balancing act. 9/11 just gave an excuse to rush them through Congress.
In essence, the PATRIOT Act and its extensions sweep away the need for
an independent third party to confirm that the bad guy really is a bad
guy. It nominally is to be used just for national crises of
terrorism, but already we see law enforcement agencies using it for
- There is no evidence that the PATRIOT Act was needed to deal
with terrorism. There is considerable evidence it dramatically harms
our assumed privacy.
Having John Ashcroft promise to use it only for bad guys doesn't help.
I don't trust the FBI, CIA, DOD, etc to get it right even if they try.
Remember, they failed to use the processes they had already, due to
turf wars. And I don't trust the Bush Administration to proceed
honestly. Remember, they took us to Iraq with threats of nuclear war.
In other words, the Act was rushed into law without need or
justification, and at considerable harm to our nation.
- Extension to the PATRIOT Act are even worse.
- We should just plain repeal the PATRIOT Act and any extensions
that show up on their own or get tucked into other bills. Then go
back to the drawing board and see if we really need to make any
changes to our historical balancing act.
- I have asked my Representative (Jay Inslee) and my Senators (Murray,
Cantwell) to defend against these attacks on liberty. I've received
rather bland responses. Cantwell even refused to vote against cloture
on Alito's nomination to the Supreme Court.
- I have presented a resolution in support of the Bill of Rights
(odt,pdf) to my
LD, County and State Democratic Platform committees. Accepted with
minor edits at LD and county levels so far. Being considered at state
- Become active in politics (see this whole website).