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Further Reading A set of newly declassified documents shows definitively and explicitly that the United States intelligence community relies heavily on what is effectively unchecked presidential authority to conduct surveillance operations, as manifested through the Reagan-era Executive Order (EO) 12333.

And at a more basic level, the new documentsillustrate that the government is adept at creating obscure legalistic definitions of plain language words, like “collection of information,” which help obfuscate the publics understanding of the scope and scale of such a dragnet.

The documents were first published on Monday by the American Civil Liberties Union (ACLU) after the groupfiled aFreedom of Information Act lawsuit with the Media Freedom and Information Access Clinic at Yale Law School.

As Arsreported previously, “twelve triple three” is a presidential order that spells out the National Security Agencys authority to conduct signals intelligence, among other things. EO 12333 was amended three times under President George W.Bush. Famously, the NSAexpanded its domestic surveillance operation after the September 11 attacks without a direct order from the president, who later provided cover under EO 12333.

“These documents are a good first step to understanding how EO 12333 is being used,” Mark Jaycox, a legislative analyst at the Electronic Frontier Foundation, told Ars. “We already know that it’s used in a very similar manner to Section 702 of the Foreign Intelligence Surveillance Act, which is being used as part of collection techniques that collect wholly domestic (American) e-mail. We also know [EO 12333 is] used for the NSAs interception of Internet traffic between Google’s and Yahoo!’s data centers abroad, the collection of millions of e-mail and instant message address books, the recording of the contents of every phone call made in at least two countries, and the mass cell phone location-tracking program. The NSAand the White Housemust release more material on EO 12333. The President has encouraged a public discussion on the NSA’s signals intelligence activities. He must follow through with ensuring an open, and honest, debate on EO 12333 activities.”

In a rare instance of clarity and precision, a “legal fact sheet” authored by the NSA and dated June 19, 2013 explains various elements of EO 12333.

FISA only regulates a subset of NSA’s signals intelligence activities.

NSA conducts the majority of its SIGINT activities solely pursuant to the authority provided by Executive Order (EO) 12333.

Since 1981, EO 12333 has provided the President’s authoritative written instruction for the organization and operation of the United States Intelligence Community (IC).

An internal training document for a course taught with the NSA entitled “Overview of Signals Intelligence (SIGINT) Authorities” notes that:

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New docs show how Reagan-era executive order unbounded NSA

Sep 302014

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Bill Shorten accuses the government during Tuesday’s question time of going soft on corporate tax avoidance; Tony Abbott says Labor did nothing in government.

The Abbott government was warned that the Australian Tax Office was ill-equipped to tackle a potential multibillion-dollar international tax dodge as it prepared to cut 3000 ATO staff.

At a time when Treasurer Joe Hockey is touting Australia’s efforts in conjunction with the G20 to close international tax loopholes, the Tax Office no longer has a dedicated team to fighting the problem.

Understaffed: An independent report has raised serious concerns about an exodus of experienced staff from the ATO, creating difficulties in dealing with corporate tax avoidance. Photo: Andrew Quilty

A report by the independent Inspector-General of Taxation has raised serious concerns about an exodus of experienced staff from the ATO at a time when money flowing between Australian companies and their foreign subsidiaries has topped $270 billion a sum that equates to more than half of the Commonwealth Budget.

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Sources close to the ATO told Fairfax Media many of the ATO’s most experienced staff in tracking international profits have moved to the big four accounting firms, where they now advise the nation’s biggest companies on how to minimise their tax.

Inspector-General Ali Noroozi warned government the loss of key ATO experts in so-called “transfer pricing” posed risks to Commonwealth revenue.

The issue of transfer pricing and the use of tax havens was raised in a report, revealed by Fairfax Media on Monday, which became a focus of debate during question time on Tuesday, with the government and opposition accusing each other of failing to close corporate tax loopholes.

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Tax office 'not up to job'

Sep 302014

Video will begin in 5 seconds.

Bill Shorten accuses the government during Tuesday’s question time of going soft on corporate tax avoidance; Tony Abbott says Labor did nothing in government.

The Abbott government was warned that the Australian Tax Office was ill-equipped to tackle a potential multibillion-dollar international tax dodge as it prepared to cut 3000 ATO staff.

At a time when Treasurer Joe Hockey is touting Australia’s efforts in conjunction with the G20 to close international tax loopholes, the Tax Office no longer has a dedicated team to fighting the problem.

Understaffed: An independent report has raised serious concerns about an exodus of experienced staff from the ATO, creating difficulties in dealing with corporate tax avoidance. Photo: Andrew Quilty

A report by the independent Inspector-General of Taxation has raised serious concerns about an exodus of experienced staff from the ATO at a time when money flowing between Australian companies and their foreign subsidiaries has topped $270 billion a sum that equates to more than half of the Commonwealth Budget.

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Sources close to the ATO told Fairfax Media many of the ATO’s most experienced staff in tracking international profits have moved to the big four accounting firms, where they now advise the nation’s biggest companies on how to minimise their tax.

Inspector-General Ali Noroozi warned government the loss of key ATO experts in so-called “transfer pricing” posed risks to Commonwealth revenue.

The issue of transfer pricing and the use of tax havens was raised in a report, revealed by Fairfax Media on Monday, which became a focus of debate during question time on Tuesday, with the government and opposition accusing each other of failing to close corporate tax loopholes.

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Tax Office 'not up to the job'

A new case will test whether the justices’ defense of conscience in Hobby Lobby applies to minority religions like Muslims, or just to Christians.

Sebastian Derungs/Reuters

Religious freedom in the United States has ebbed and flowed between two competing concepts: the principled view that religion is a matter of individual conscience that cannot be invaded by the government, and the practical concern once expressed by Justice Antonin Scalia that accommodating all religious practices in our diverse society would be courting anarchy. In June, the Supreme Court ruled in Burwell v. Hobby Lobby that closely held corporations, whose owners objected to contraception on account of sincere Christian beliefs, could not be forced by the Affordable Care Act to include certain contraceptives in their employee insurance plans. In supporting the religious rights of business owners over a national health-care policy predicated on broad participation, the Roberts Court seemed to stake its place on the more protective end of the religious-freedom spectrum.

But the idea that Hobby Lobby creates robust protections will be credible only if the justices are willing to recognize the religious freedom of marginalized religious minoritiesnot just the Judeo-Christian tradition. The next religious-freedom case to come before the Court, Holt v. Hobbs, will test whether the Roberts Courts stance on religious freedom includes a minority faith, Islam, practiced by a disfavored member of our society: a prisoner. At stake are both the state of religious freedom in the country and the Courts reputation.

Hobby Lobby Is Already Creating New Religious Demands on Obama

Holt involves Gregory Holt, an inmate in Arkansas also known as Abdul Maalik Muhammad. A dispute arose between Holt and the states Department of Correction when he sought to grow a one-half-inch beard in observance of his faith. According to the departments grooming policies, inmates may only grow a neatly trimmed mustache. In 2011, Holt filed a lawsuit against the director of the department, Ray Hobbs, and other state employees, saying that the prison had violated his religious rights. After decisions by federal trial and appeals courts in favor of the department, Holt filed a hand-written petition to the Supreme Court, which agreed to review the case. The justices are scheduled to hear arguments in Holt on October 7.

If Hobby Lobby and federal law are faithfully applied, Holt should prevail. Prisoners surrender many of their rights at the prison gates. Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, the Supreme Court wrote in Price v. Johnston more than 60 years ago. In 2000, however, Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA) to help safeguard inmates religious freedom. The law states that the government may not place a substantial burden on a prisoners ability to practice his or her religion unless that burden is the least-restrictive means to achieve a compelling goal.

This standard may sound familiarRLUIPA is the sister statute to the Religious Freedom Restoration Act, or RFRA, the federal law which was at issue in Hobby Lobby. These laws apply to different laws implicating religious freedomRFRA only to federal laws and RLUIPA to the land use and prison contextsbut both ask whether a religious burden is the least-restrictive means of accomplishing the governments compelling goals.

In this case, there is no dispute that the prison regulations substantially burden Holts religious freedom. His Hobsons choiceeither obey the prison grooming policies and violate his religious beliefs, or adhere to his conscience and face disciplinary measuresis a quintessential substantial burden.

But the prison authorities have a compelling reason to restrict Holts ability to practice his religion. In Hobby Lobby, the Supreme Court simply assumed the federal government had sufficient reasons for requiring contraceptive coverage. In Holt, it will likely agree with the departments position that the no-beard policy enhances prison safety and security by removing an important hiding place for contraband and by facilitating the identification of inmates who wish to engage in violence or escape. On their own, however, these reasons dont seem to be enough to satisfy RLUIPA. The regulations will also have to pass the statutes least restrictive means test: The government must meet its goals in the way that best preserves religious liberty. This was also the sticking point in Hobby Lobby. In that case, the government had already made exemptions for religious nonprofit organizations, which undermined its argument that religious exemptions could not be made for certain for-profit corporations. Holt involves a similar situation: Arkansass prisons already offer medical exemptions to their grooming policies, which makes it difficult to argue that religious exemptions are not possible. As a federal appeals court wrote in Fraternal Order of Police v. City of Newark, which concerned Newarks police-department grooming policies, We are at a loss to understand why religious exemptions threaten important city interests but medical exemptions do not. The decision was written by then-Judge Samuel Alito, author of the Hobby Lobby opinion.

See the article here:
How Serious Is the Supreme Court About Religious Freedom?

UMS research on islands to help improve security

KOTA KINABALU: A newly set up research centre at Universiti Malaysia is expected to play a role in collecting data, documentation and written or visual information on island populations, in particular the migrants, in the State.

“This will enable the government to come up with solutions to problems besides offering them special identification cards,” said Tourism, Culture and Environment Assistant Minister Datuk Pang Yuk Ming.

He added that it would be the main key for security forces when searching for suspects behind intrusion and kidnapping incidents.

It is envisaged that the Small Islands Research Centre (SIRC) will be capable of assisting in the State’s development especially in terms of security.

“The university through their research in determining the islands’ population census will definitely help to strengthen security across Malaysian waters,” said Pang.

“My suggestion would be that the university can determine the natives and illegal migrants among the people in the islands,” he said.

Pang believed there are communities who had been living in the islands for years and not exposed to any developments therefore, any valid identification documents would not be too important for them.

“All they did was to focus on making ends meet,” he said, adding that most of them do not have any nationality.

According to him, the data collected by the centre will also be used as references to the government in developing the islands and improve the people’s standard of living. “I would like to thank the university for their contribution to the development of our nation and State.

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UMS research on islands to help improve security

WASHINGTON Documents released by the government show it views an executive order issued in 1981 as the basis of most of the National Security Agency’s surveillance activities, the American Civil Liberties Union said Monday.

The NSA relied on Executive Order 12333 more than it did on two other laws that have been the focus of public debate since former agency contractor Edward Snowden leaked files exposing surveillance programs, according to the papers released by the ACLU.

The ACLU obtained the documents only after filing a lawsuit last year seeking information in connection with the order, which it said the NSA was using to collect vast amounts of data worldwide, inevitably including communications of U.S. citizens.

The order, signed in 1981 by President Ronald Reagan, was intended to give the government broad authority over surveillance of international targets.

One of the documents obtained was a 2007 NSA manual citing the executive order as the primary source of NSA’s foreign intelligence-gathering authority.

A legal fact sheet on the memo produced in June 2013, two weeks after Snowden’s disclosures, said the NSA relied on the executive order for the majority of its activities involving intelligence gathered through signals interception.

Alex Abdo, an ACLU staff attorney, said in a blog post published on Monday that the documents confirm that the order, although not the focus of the public debate, actually governs most of the NSA’s spying.

Congress’s reform efforts have not addressed the executive order, and the bulk of the government’s disclosures in response to the Snowden revelations have conspicuously ignored the NSA’s extensive mandate under EO 12333, Abdo wrote.

Neither the NSA nor Justice Department, which is defending the lawsuit, responded to requests for comment Monday.

The ACLU’s lawsuit, filed in December 2013 in New York, cited news reports indicating that, under the order, the NSA is collecting data on cell phone locations and email contact lists, as well as information from Google and Yahoo user accounts.

Link:
NSA relies on 1981 executive order signed by Reagan

Sep 302014

Documents released by the US government show it views an executive order issued in 1981 as the basis of most of the National Security Agency’s surveillance activities, the American Civil Liberties Union said on Monday.

The NSA relied on Executive Order 12333 more than it did on two other laws that have been the focus of public debate following the leaks exposing US surveillance programs by former agency contractor Edward Snowden, according to the papers released by the ACLU.

The ACLU obtained the documents after filing a lawsuit last year seeking information in connection with the order, which it said the NSA was using to collect vast amounts of data worldwide, “inevitably” including communications of US citizens.

The order, signed in 1981 by President Ronald Reagan, was intended to give the government broad authority over surveillance of international targets.

One of the documents obtained was a 2007 NSA manual citing the executive order as “the primary source of NSA’s foreign intelligence-gathering authority.”

A legal fact sheet on the memo produced in June 2013, two weeks after Snowden’s disclosures, said the NSA relied on the executive order for the “majority” of its activities involving intelligence gathered through signals interception.

Alex Abdo, an ACLU staff attorney, said in a blog post published on Monday that the documents “confirm that the order, although not the focus of the public debate, actually governs most of the NSA’s spying.”

“Congress’s reform efforts have not addressed the executive order, and the bulk of the government’s disclosures in response to the Snowden revelations have conspicuously ignored the NSA’s extensive mandate under EO 12333,” Abdo wrote.

Neither the NSA nor US Department of Justice, which is defending the lawsuit, responded to requests for comment Monday.

The ACLU’s lawsuit, filed in December 2013 in New York, cited news reports indicating that, under the order, the NSA is collecting data on cell phone locations and email contact lists, as well as information fromGoogleandYahoouser accounts.

Link:
Reagan signed off on NSA surveillance

Brian Armstrong and Fred Ehrsam certainly look like the kind of guys who could help bitcoin recover from its wild years.

They are tall and textbook fit, and as poised as Swiss bankers — Vulcan Swiss bankers. Armstrong, 31 and a former software engineer at Airbnb Inc., shaves his head. Ehrsam, 26 and a former foreign-exchange trader at Goldman Sachs Group Inc. (GS), keeps his hair short and very much in place. When they discuss bitcoin, they rarely smile. Do not try to make them laugh.

Their seriousness is understandable, Bloomberg Markets magazine will report in its November 2014 issue. Armstrong and Ehrsam are the founders of a startup called Coinbase Inc., whose mission is to convince everyone that bitcoin isnt an Internet scam or a libertarian plot against the government or a digital version of goldbuggery, as various skeptics have it. Rather, its the best thing to happen to money since the Lydians started minting coins sometime in the seventh century B.C.

Coinbase isnt a bank — technically, its a brokerage — but in important respects it behaves like one. Customers open accounts, through which they buy bitcoins for dollars. Coinbase holds the bitcoins. Customers spend them using a computer or a smartphone application. Coinbase makes money by charging a 1 percent fee for exchanging dollars and bitcoins. All other transactions are free.

Adam Draper, founder of the accelerator program Boost VC. Draper wants to help launch 100 bitcoin-focused companies. Close

Adam Draper, founder of the accelerator program Boost VC. Draper wants to help launch… Read More

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Adam Draper, founder of the accelerator program Boost VC. Draper wants to help launch 100 bitcoin-focused companies.

Coinbases aim is to take a curio currency that exists only as bits on the Internet and turn it into a coin of the realm — every realm, because part of the appeal of bitcoin is that it can cross borders as easily as e-mail.

Its a big job. Reputation is everything when it comes to currency, and bitcoins has taken some hits. In 2013, the FBI busted Silk Road, an online drug market that ran on bitcoins. In February 2014, Tokyo-based Mt. Gox, once the largest bitcoin exchange in the world, collapsed, and suddenly 850,000 bitcoins, worth $500 million at the time, were just … gone. (Two hundred thousand of the missing bitcoins later turned up.)

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Coinbase Leads Move to Bring Bitcoin to Masses

Photograph by Rebecca Ingram

Many students, faculty and staff were upset a few weeks ago by a preacher in front of Sherrod Library harassing students.

However, because ETSU is a public school, it has an obligation to provide free speech to visitors who follow university guidelines, even if the content of their speech is unpopular.

If theyre threatening, if they pull out a knife and say Im going to kill you or if they punch somebody, then the university can actually do something, but if they insult somebody, [ETSU] can probably not, University Counsel Ed Kelly said.

Kelly said ETSU is a public forum and, as such, must go out of its way to guarantee a conducive speaking environment for visitors.

If youre the sixth circuit court of appeals or a district court judge, you might look at the situation where someone says, Look, they called me a whore, and it affects my education, and the court will say, Well, was there another place you could go and not hear that? Kelly said.

While private universities can control the kind of speech allowed on campus, a public university is subject to the requirements of any other government institution.

What the government will allow are time/place/manner restrictions, meaning that we cant regulate the speaker in a public forum, Kelly said.

There are some exceptions. If I make a direct threat Im going to kill you as opposed to you should be taken out and shot, one is a general threat and the other is a general statement.

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ETSU obligated to protect free speech

Sep 292014



Fuck You Obama And The NSA
God jose is going to get killed This is a joke we do not want the government to kill us nor do we think the govt sucks we are just a couple of idiotic teens that have nothing better to do in life.

By: Fernando Araiza

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Fuck You Obama And The NSA – Video

Sep 292014



Bitcoin Trade 180
In this episode I introduce Bitcoin, digital crypto currency independent form Government and State backing and control, a new technology that allows easy flo…

By: James Bond

Read the original here:
Bitcoin Trade 180 – Video

EXCLUSIVE

Almost a third of Australia’s largest companies are paying less than 10 in the dollar in corporate tax, according to a report that exposes a gaping hole in government revenues over the past decade.

As Australia prepares to host world leaders at the G20 summit in Brisbane in November, where a global assault on tax avoidance will be a key topic of discussion, the report found 84 per cent of Australia’s top 200 stockmarket-listed companies pay less than the 30 per cent company tax rate.

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Some companies, including household names like James Hardie, do not contribute a dollar to Australian coffers, it found.

Tax minimisation by large companies far outweighs that of small and medium-sized businesses and has a disproportionately large effect on eroding the tax base.

“Tackling corporate tax avoidance is an urgent priority; Australia does not have a spending problem, it has a revenue problem and it must be fixed,” write the authors of the report,Who Pays For Our Common Wealth?

The 90-page look at the the tax contributions of the S&P/ASX 200 between 2004 and 2013 the first research of its kind attempted claims up to $80 billion was foregone by the taxman over that period; a sum of money that could all but wipe out the government’s past two budget deficits.

It details the widespread and growing use of subsidiaries in tax havens and so-called “thin capitalisation”, where local entities are saddled with huge debts to reduce tax liabilities in Australia.

Almost 60 per cent of the ASX 200 declare subsidiaries in tax havens. For example, global broadcaster 21st Century Fox has 117 and logistics group Toll Holdings 72 in low-tax jurisdictions, including Bermuda, the British Virgin Islands and Singapore.

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How the top firms are paying zero tax

A stalemate that had threatened to leave Flinders and Cape Barren islands without a freight service has been temporarily resolved. The shipping company that had been servicing the islands, Furneaux Freight, was at odds with state-owned TasPorts over loading and unloading services used at Lady Barron Port. Infrastructure Minister Rene Hidding said the Government had led successful negotiations …

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Eleventh-hour deal temporarily saves Flinders Island freight service

Sep 272014

For the first time, the tourist haven of Goa will host a literary festival that will bring together writers from six different languages on one platform

At 3,702 sq km, Goa may be as large as Polynesia, but it’s still the smallest state in country. Yet it is home to six different languages Konkani, English, Kannada, Marathi, Portuguese and Hindi. Despite being a bearer of this rich literary legacy of all these tongues, it has not had a literary platform to celebrate them. “It is this vacuum that we were trying to fill,” said Alaham Anil Kumar, founder-director of the International Writers and Readers Festival (IWRF), to be held from October 4-6.

“There is a tendency to make lit fests very ‘English-only’ affairs. For a country which has rich literary roots that go so far back in time, this is grossly unfair. We want to address this with this festival, which will bring literary greats from all the six languages of Goa on the same platform as the global greats who will be part of the festival.” He is quick to add: “One is aware Goa already has a lit fest, but there is no harm for a community to have multiple literary activities. The marking of the cultural calendar of any place with such literary activities is evidence of the rich thinking tradition that is celebrated there.”

Kumar should know. When this Kannadiga from Bangalore returned from Hong Kong after an 11-year-stay, he was shocked that the city had no literature festival to speak of. “A few like-minded people came together to start one there and the response was tumultuous,” he remembers. “When we started the Bangalore Literature Festival, there was already a small festival in the city but the reading community was deprived of interaction with their favourite authors coming from far off places. We bridged that gap by inviting some of India’s greatest names to the garden city. I clearly remember that for a Saturday morning 9am poetry session, there were at least 3,000 people in attendance. This was possible because of the central location of the arena. So, programming, location and reaching out to interest groups via marketing activities are key for any festival to succeed.”

It was then that the germ of the idea behind the non-ticketed and open-for-the-public International Writers and Readers Festival was born. “We want to bring reputed authors and highest literary award-winners from across the globe to Goa to celebrate literature along with five-six languages under the same roof. This effort will help put Goa on the world literary map. Such an event will welcome intelligent tourists, making the state an alternative cultural capital of the country.”

He says the choice of Goa makes perfect sense given its place on the tourist map. “It’s like a place which has been ready for this idea for long,” he says of the three-day event, which has found sponsors in Yes Bank and Flipkart. “Celebrating literature by bringing together global voices and India’s established and new writers along with literary heavyweights of regional languages is something that has not been experimented under one roof.

A strong school programme, wherein participating authors visit schools and colleges to educate the youth on reading habits, influence of the printed word in growing years, and showcasing not just literary but also the region’s cultural face in a single event makes it very special and original. For the first time in any literary festival across Asia, one publisher, who is supporting us, has come forward to create a literary corner where aspiring writers can walk in with their manuscripts and ideas and discuss their work with editors. If lucky, they may even be able to secure a publishing contract on-the-spot,” informs Kumar.

According to him, this opportunity will translate into making the beer-and-beach state a centre for promoting writing, reading and other forms of art. “It is a known fact that many established authors have made Goa their second home to use the ambience and scenic splendour to carry forward their creative pursuits. This is a testament of Goa’s creative vibes.”

All praise for the Goa government, which is on board with the idea of the festival, he said: “The vision of the government to actively promote art, literary and allied activities has helped a lot, as have the business tycoons in the region who have been promoting art and culture. Institutions like the Kala Academy, Sunaparanta, Institute Menezes Braganza and others are great locations and bodies, which have been relentlessly promoting art, culture and literature, are also part of the festival,” and added, “We hope this will encourage active participation from bibliophiles and writers from all languages and groups; industry leaders coming forward in support of the festival, and thirdly, educational institutions and government’s support in making this festival Goa’s own international event that will kick off the cultural calendar this October.” The Rs85 lakh extravaganza will see a large part of the costs going toward air travel and hospitality, given the many international and national authors attending the festival.

While brushing off suggestions of this literature festival being fashioned on others at famous Indian tourist destinations, he said: “The more the number of people such events reach out to, the greater the penetration. So, great programming coupled with attendance from good crowds is the measure of success. And we are confident that IWRF can pull this off independently without needing comparison.”

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Books, beaches and beer

In D.C. v. Heller, the Supreme Court stated that (emphasis added, citations omitted, as usual),

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

[Footnote: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.]

The question, then, is whether this presumpti[on] of validity can ever be rebutted for instance, if a persons felony conviction is many decades in the past, is for a not very serious felony, or both. Some federal courts have stated that the answer would be yes under the right circumstances. United States v. Moore, 666 F.3d 313, 320 (4th Cir. 2012); United States v. Barton, 633 F.3d 168, 174 (3d Cir. 2011); United States v. Williams, 616 F.3d 685, 693 (7th Cir. 2010); United States v. Duckett, 406 Fed. Appx. 185, 187 (9th Cir. 2010) (Ikuta, J., concurring); United States v. McCane, 573 F.3d 1037, 1049-50 (10th Cir. 2009) (Tymkovich, J., concurring). Some North Carolina state court decisions have actually set aside particular claimants state-law gun disabilities, under the North Carolina Constitutions right to bear arms provision. Britt v. State, 681 S.E.2d 320 (N.C. 2009) (holding that a nonviolent felon whose crime was long in the past regained his state constitutional right to keep and bear arms); Baysden v. State, 718 S.E.2d 699 (N.C. Ct. App. 2011) (same). But Thursdays Binderup v. Holder (E.D. Pa. Sept. 25, 2014) is, to my knowledge, the first federal court decision to actually set aside such a gun disability on Second Amendment grounds.

The court began by deciding whether Daniel Binderups conviction counts as a felony for federal felon-in-possession law, and concludes that it does. Federal felon-in-possession law actually bars gun possession by people who have state or federal convictions for any crime punishable by a year or more in prison or, if its labeled a misdemeanor by state law, by two years or more in prison. The focus isnt (solely) on the formal felony-vs.-misdemeanor label attached to a crime by state or federal law, nor on the actual sentence for the crime, but on the maximum sentence authorized for the crime (or so the Binderup court held, consistently with other cases). The crime in this case corruption of minors is labeled by Pennsylvania as a first-degree misdemeanor, which means it carries a maximum sentence of five years. It must therefore be treated, the court held, as a felony for purposes of the federal felon-in-possession statute.

But then, the court asked whether the Second Amendment nonetheless preempts federal felon-in-possession law in this particular case. In Barton, one of the cases cited above, the Third Circuit the federal appellate court that sets binding federal precedent for Pennsylvania and some other jurisdictions wrote:

To raise a successful as-applied challenge, [a defendant] must present facts about himself and his background that distinguish his circumstances from those of persons historically barred from Second Amendment protections. For instance, a felon convicted of a minor, non-violent crime might show that he is no more dangerous than a typical law-abiding citizen. Similarly, a court might find that a felon whose crime of conviction is decades-old poses no continuing threat to society. The North Carolina Supreme Court did just that in Britt v. State, 363 N.C. 546 (2009), finding that a felon convicted in 1979 of one count of possession of a controlled substance with intent to distribute had a constitutional right to keep and bear arms, at least as that right is understood under the North Carolina Constitution.

And Binderup, the court held, did present such facts about himself and his background. His only conviction was nearly 17 years before. It stemmed from a nonviolent incident a consensual sexual relationship Binderup had with a 17-year-old employee. Pennsylvania law does not even treat the offense as a statutory rape; the formal age of consent in Pennsylvania (as in most other states) is 16, and sexual conduct by an adult with a 16- or 17-year-old is treated as consensual, though bad for a the minor and therefore the crime of corruption of minors. The statistics presented by the government, showing that people with criminal convictions even nonviolent ones are likely to commit other crimes arent probative given the nature of the crime, how long ago the crime was, and Binderups current age (59). For these reasons, the court held,

[P]laintiff has demonstrated that, if allowed to keep and bear arms in his home for purposes of self-defense, he would present no more threat to the community that the average law-abiding citizen.

And because of this, the presumption that theres no Second Amendment problem with barring felons from possessing guns, the court held, has been rebutted.

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Volokh Conspiracy: A rare Second Amendment exemption from federal ban on felons possessing guns

In 2004, Peter Thiel co-founded Palantir Technologies, a data analysis company that has an estimated value of $9 billion, and works mostly with the government on counter-terrorism, information monitoring and cyber-security. The company is rumored to be behind the capture of Osama bin Laden and has a list of clients that include the U.S. Defense Department, CIA, FBI, U.S. Army, Marines and Air …

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Peter Thiel on the NSA: Modern day Keystone Cops

A view of the 1,234-square-mile Joshua Tree National Park is seen April 7, 2008, in southeastern California. A large part of the park is designated to wilderness area. Gabriel Bouys/AFP/Getty Images

SEATTLE — The U.S. Forest Service is proposing permanent new rules that would require media organizations to obtain a permit to film and shoot photographs in more than 100 million acres of the nation’s wilderness.

Under the plan, the Forest Service would consider the nature of a proposed project before approving a special use permit then charge fees of up to $1,500 for commercial filming and photography in federally designated wilderness areas.

Mickey H. Osterreicher, general counsel for the National Press Photographers Association, said such rules would be a clear violation of the First Amendment and raises concerns about press freedom, including whether denying a permit would amount to prior restraint.

“What if they deny you a permit because they don’t like the story you’re working on?” he asked.

Liz Close, the Forest Service’s acting wilderness director, said the Wilderness Act of 1964 prohibits commercial enterprise in wilderness.

The rules exclude breaking news situations, defined as “an event or incident that arises suddenly, evolves quickly, and rapidly ceases to be newsworthy.”

But Osterreicher said the agency ignores big distinctions between editorial and commercial use and also should not be allowed to define what constitutes breaking news.

“We’re headed down a really slippery slope if we allowed the government to include editorial and news gathering activities in commercial use,” he said.

Close said the current rules have been in place for 48 months, and the proposal released this month would make those guidelines permanent. Public comments are due by Nov. 3.

Read the rest here:
Wilderness proposal sparks First Amendment fight

Controversial changes to racial discrimination laws will be reintroduced to Parliament today despite the Prime Minister killing off the plan earlier this year.

A private senators bill will be introduced to the Upper House today co-sponsored by Family First Senator Bob Day, Liberal Senator Cory Bernardi and Liberal Democrat Senator David Leyonhjelm.

Tony Abbott, killed off the proposal last month, arguing the changes were a “needless distraction” in the Government’s relationship with the Muslim community and could inflame racial tensions at a time of heightened national security.

The Prime Minister previously made an election pledge to soften the country’s race hate laws because he believed they limited free speech.

Senator Day said he felt compelled to take up the case and won the support of Senator Bernardi and Senator Leyonhjelm.

“I felt someone needed to do it. This is not really my thing. I came to Canberra on a platform of every family, a job and a house, but sometimes when you’re on a journey and you come across an incident, sometimes you have to stop and help out,” he said.

Earlier proposed changes would have removed a section of the Racial Discrimination Act that made it illegal to “hurt the feelings of others”.

The latest bill seeks to remove the words “offend” and “insult” from section 18C of the Act with Senator Day saying people are too easily offended and he is defending free speech.

“I don’t want there to be any silencing of debate and that’s certainly been the case where people now feel they can be hauled off to court by someone who says that they’re offended by what someone may have read, may have written or may have said and I don’t think there’s any place in Australia for that,” he said.

“There is support right across the chamber, on the Coalition side, on the Labor side… and also on the crossbench.”

The rest is here:
Racial Discrimination Act changes to be introduced to Parliament; free speech debate not over, say senators

Former Internal Revenue Service Director of Exempt Organizations Lois Lerner cited the Fifth…

Everyone in Washington has a P.R. machine, or at minimum, an agenda. That’s certainly the case with Lois Lerner, the former IRS executive whose division targeted conservative nonprofit applicants with delays and harassment.

Lerner’s division of the IRS systematically obstructed and denied status to Tea Party groups while subjecting many of the smallest ones those most vulnerable and least likely to be lawyered up to inappropriate demands for information that was not legally required. In one case, this included the content of the opening prayer recited in meetings, and in others, this IRS Inquisition demanded that leaders of certain groups pledge never to run for office.

Lerner is out of that business now, and on to a new campaign. This campaign, in which she has enlisted friends and former colleagues, aims to tell the side of the story that she has refused to give Congress under oath.

The resulting Politico piece includes this is no joke the revelations that she once baked brownies for colleagues and that she loves dogs. How delightful for her and the dogs! But so what? Lerner cited the Fifth Amendment and refused to answer questions about her involvement in this scandal. The reason for doing that is that she believes her answers could facilitate a criminal prosecution against her. The mysterious destruction of evidence in this case strongly suggests she is right to worry about that. So does her concerned email inquiry to government IT workers as to whether her instant messages with colleagues could ever be obtained by congressional investigators.

Lerner is willing to testify only in the news media, where the whole truth is not required and irrelevant information can be shared to make her seem less unsympathetic.

But Lerner’s complaints about her treatment, her inability to find a job to supplement her pension, and her legal bills fall flat. She and her attorneys complain that the disparaging opinions she once expressed by email about conservatives, later obtained by Congress, should not be used against her. It would be unreasonable, she and her defenders point out, to expect her not to have opinions.

She is correct, America is a free country where all may express their views. But then, that’s precisely why Lerner finds herself in so much hot water. Her IRS division used government power to suppress the political opinions of others to make private citizens unfree to express opinions she does not like.

If liberals are so irked that conservatives have freedom of speech, freedom of association, and freedom to spend their own money on advocacy, there is a proper channel for their frustration. They can weaken or even abolish the First Amendment to the Constitution. Democrats tried this in the U.S. Senate earlier this month, and good for them it is the right of every elected official to take such a political risk, because voters can hold such officials accountable.

But it’s quite another thing for powerful, entrenched and unaccountable bureaucrats to abuse their power and attack others’ constitutional rights from deep within the intestines of the government. This is why Lerner now finds herself a pariah, and it’s also why she isn’t a victim.

Read the original:
Cry us a river, Lois Lerner

Silicon Valleys smartphone snitching has come to an end. Apple and Google have promised that the latest versions of their mobile operating systems make it impossible for them to unlock encrypted phones, even when compelled to do so by the government. But if the Department of Justice cant demand that its corporate friends unlock your phone, it may have another option: Politely asking that you unlock it yourself, and letting you rot in a cell until you do.

In many cases, the American judicial system doesnt view an encrypted phone as an insurmountable privacy protection for those accused of a crime. Instead, its seen as an obstruction of the evidence-gathering process, and a stubborn defendant or witness can be held in contempt of court and jailed for failing to unlock a phone to provide that evidence. With Apple and Google no longer giving law enforcement access to customers devices, those standoffs may now become far more common. You can expect to see more cases where authorities are thwarted by encryption, and the result is youll see more requests that suspects decrypt phones themselves, says Hanni Fakhoury, an attorney with the Electronic Frontier Foundation. And by requests, I mean demands. As in, you do it or youll be held in contempt of court.

In some cases, the Fifth Amendments protection against self-incrimination may block such demands, under the argument that forcing defendants to unlock their phone would compel them to testify to their own guilt. But the few cases where suspects have pleaded the Fifth to avoid decrypting a PCthe legal equivalent of a smartphonehave had messy, sometimes contradictory outcomes. This is not a settled question, says James Grimmelmann, a professor at the University of Maryland Law School. And it likely wont be, he says, until more appeals courts or the Supreme Court consider the issue.

Grimmelmann does, however, offer one general guideline for whether a Fifth Amendment argument will keep the cops out of your locked phone and you out of jail: If the police dont know what theyre going to find inside, he says, they cant make you unlock it.

In 2011, for instance, a Florida man identified only as John Doe had two computers and five external hard drives seized in a child pornography investigation. (He was never charged with a crime, so his name was not revealed in court.) Doe had encrypted his drives with TrueCrypt, and took the Fifth to avoid having to unlock them. The court ruled that forcing him to surrender his password and decryption keys would be the same as making him provide self-incriminating testimony, and let him off the hook.

In a Vermont case in 2009, by contrast, a child pornography defendant named Sebastien Boucher made the mistake of allowing police access to his computer following his arrest at the Canadian border. They found child pornography, but after seizing his computer realized the portion of the hard drive containing the incriminating files was encrypted. They demanded Boucher cough up the password. He refused, pleading the Fifth. A judge ruled against him, calling the contents of the computer a foregone conclusion. The police didnt need Bouchers testimony to get the files, in other wordsthey only needed him to stop obstructing access to them.

Not every case is so clear-cut. In 2012, a Colorado district court ruled thatRamona Fricosu, a defendant in a mortgage fraud case, had to surrender the password to her locked laptop after she was heard on a recorded phone call telling her co-defendant husband that the incriminating evidence was encrypted. That call was enough to nullify her Fifth amendment argument. As with Boucher, the judge ruled that she give police access to the files or be held in contempt.

Even if you have a Fifth Amendment right to avoid compelled decryption, you have to be very circumspect in how you behave, warns Grimmelmann. The court may only find in favor of defendants who have been very careful about not talking to law enforcement and who have been very well advised in keeping in their head down.

Depending on where the law settles, it could leave few cases where the Fifth Amendment protects locked phones at all. Former prosecutor and George Washington University Law Professor Orin Kerr argued in a piece for The Washington Post on Friday that merely confirming that a phone belongs to you and admitting you know the passcode circumvents the Fifth Amendment. If the phones in the suspects hand or in his pocket when the government finds it, thats not going to be hard to show, he wrote. He pointed to the Boucher case. Under the relevant case law, that makes all the difference: Entering in the password no longer raises a Fifth Amendment problem.

Using Apples TouchID to unlock a phone represents another way to compel suspects to open their phone. As defense attorney Marcia Hofmann wrote for WIRED last year, a fingerprint isnt testimony. So demanding a suspect extend their hand allows for no Fifth Amendment defense. Other biometric unlocking mechanisms would be equally vulnerable. We cant invoke the privilege against self-incrimination to prevent the government from collecting biometrics like fingerprints, DNA samples, or voice exemplars. Hofmann wrote. The courts have decided that this evidence doesnt reveal anything you know.

Go here to see the original:
Google and Apple Wont Unlock Your Phone, But a Court Can Make You Do It



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