11 November 2007

The 2007 CECI Award

It's time once again for the event the whole blogosphere awaits with breathless anticipation - the presentation of the annual CECI award!

Once again this year the judges (me) have sifted through the year's dross and spent Guy Fawkes' Day mulling over who's made the greatest contribution to clear thinking about identity, privacy, security, and risk.

As I made my decision I've had a few things on my mind. I've had in mind, for example, why the principal deputy director of National Intelligence thinks we need to change our definition of privacy. The short answer is that the current definition is very inconvenient to the government. How inconvenient? Well, for one thing, it prevents them from spying on all of us without a good reason.

Since we haven't changed the definition of privacy yet, the US Government is being forced to go to all the embarrassment and expense of arguing (in public! how undignified!) in United States v. Warshak that you and I have no expectation of privacy in email communications because we've signed an agreement with our ISP to let them examine our emails under certain circumstances.

(Side note: is anyone but me thinking "Wait! The fourth amendment doesn't say anything about expectations of privacy! It just says that there won't be unreasonable searches and seizures, and there will be warrants based on probable cause supported by oath or affirmation, and particularly describing the persons or things to be seized"?)

The definition of "privacy" which deputy director Donald Kerr would like us to adopt, in deference to the government's needs, is that "government and businesses properly safeguard people's private communications and financial information."

What does he mean by "properly safeguards"? Probably something like this: that the government and the supermarket will only arrest you, send you to Guantanamo, and deny you access to legal counsel if the FBI thinks your falafel purchases are suspicious; if you eat only a patriotic American quantity of Falafel, you have nothing to fear.

And I've been thinking about why so few people agree with Mark Klein that all this is a problem.

Which brings me to our winner.

The 2007 Ceci Award goes to Andrew Napolitano, former New Jersey Superior Court Judge and current Fox News analyst (I know, I know, but stay with me for a minute), for his most recent (2007) book "A Nation Of Sheep".

Napolitano's basic argument in "A Nation Of Sheep" is this:

  1. The Natural Rights theory says that our fundamental rights come from God and still exist even when they aren't enforced or even respected by the government.
  2. This theory is necessary as a defense against government encroachment, because government does not actually acknowledge any power higher than itself...
    (even when it says stuff like "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed")
    ...but while it is willing to coerce the governed to permit the usurpation of their rights it is embarrassed to say in public that it does not believe in God's supremacy - so attributing rights to God is the only way to make the government acknowledge their legitimacy.
  3. Even attributing rights to God doesn't do us any good if we don't confront government whenever it tries to usurp the rights God gave to us.
  4. But most of us are sheep, and won't confront the government...
  5. Therefore it falls to a few wolves to prevent all of us from falling into slavery.
He's right. Read the book. If, after reading the book, you're feeling sheepish, consider the example of Mark Klein and ask yourself if you've seen any of your natural rights being confiscated lately. If so, ask yourself what you've done about it.

Congratulations to Judge Napolitano on his award. As usual, an acceptance speech in the comments is not required, but would be most welcome.


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