September 22, 2015 archive

Last week Democratic presidential candidate Hillary Clinton put the White House on notice that she could not wait much longer to take a stand about building the Keystone XL pipeline. The wait is over. At an Iowa event Secretary Clinton let her view be known.

Her fellow candidate, Sen. Bernie Sanders, who has opposed the pipeline since its inception, was “glad that Secretary Clinton finally has made a decision,” and welcomed “her opposition to the pipeline.”

While it’s disappointing she didn’t do this while she was Secretary of State, she did explain her reasons for opposing it now

“I was in a unique position as secretary of state at the start of this process, and not wanting to interfere with ongoing decision making that the President and Secretary (of State John) Kerry have to do in order to make whatever final decisions they need,” Clinton said. “So I thought this would be decided by now, and therefore I could tell you whether I agree or disagree, but it hasn’t been decided, and I feel now I’ve got a responsibility to you and voters who ask me about this.”

Considering the non-stop media coverage of Pope Francis’ arrival in Washington, DC, this will most likely be pretty much ignored by the news media.  

As you read this , you are reading history. Not in the sense that it is something memorable but in the sense that it has happened. So everything that we do or say, once said or done, is in the past one nanosecond later. Think about that and now apply it to the the Fourth Amendment and warantless searches by law enforcement.   The North Carolina Court of Appeals has now applied that logic to a ruling involving the search of a defendant’s  cell phone records without a warrant (pdf) through the backdoor of warrant that was tangential to the case.

Superior Court Judge Lucy N. Inman signed the order and Detective Mitchell submitted it to AT&T, the cellular phone service provider and holder of the account associated with the phone number. AT&T provided the records of the location of the cell phone tower “hits” or “pings” whenever a call was made to or from the cell phone. AT&T sent emails of the longitude and latitude coordinates of these historical cell tower “hits” to Detective Mitchell every fifteen minutes. Detective Mitchell testified an approximately five- to seven-minute delay occurred between the time the phone “pinged” a cell phone tower and the time AT&T received and calculated the location and sent the latitude and longitude coordinates to him.

Tim Cushing at Techdirt explains how the definition of “historical” has now been twisted to violate a defendant’s civil rights:

The defendant argued that the “real time” tracking of his location violated his Fourth and Fourteenth Amendment rights (as well as analogous parts of North Carolina’s constitution). The court doesn’t buy these arguments, citing the Stored Communications Act, which allows government entities to obtain certain third party records without a warrant. It says the difference between what’s been considered unconstitutional by several courts — obtaining real-time location information with a tracking device — isn’t what’s happening here.

It argues that because the police didn’t intercept these “records,” everything is above-board, even if the sought “historical” data included two days of “records” that were created after the court order was approved.

Several courts have held the SCA permits a government entity to obtain cell tower site location information from a third-party service provider in situations where the cell tower site location information sought pre-dates the court order and where the cell tower site location information is collected after the date the court order issues. Although the former may technically be considered “historical” while the latter is “prospective” in relation to the date of the court order, both are considered “records” under the SCA. The government entity only receives this information after it has been collected and stored by the third-party service provider.

In plainer English, this means law enforcement entities can seek “historical” records from the “future,” with the mitigating factor being that the records are collected by third parties first. A short delay of a few minutes is enough to call these records “historical” under this interpretation.  [..]

While the majority’s interpretation dilutes the meaning of “historical” by including location data yet to be generated under its warrantless wing, it does point out to possible future problems with the use of Stingray devices. These have often been deployed with the same sort of court orders, but contain the ability to track individual phones in real time. Once more details on these deployments come to light, the courts will be forced to confront a plethora of Fourth Amendment violations — at least if they’re going to remain consistent with this interpretation of “historical.”

Can you hear the sound of the shredder?

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This Day in History

Nathan Hale hanged in the American Revolution; Iraq invades Iran; President Gerald Ford faces a second assassination attempt in weeks; ‘Fiddler on the Roof’ hits Broadway; Songwriter Irving Berlin dies.

Breakfast Tunes

Something to Think about over Coffee Prozac

Don’t cry because it’s over. Smile because it happened.

Dr. Seuss

This is your morning Open Thread. Pour your favorite beverage and review the past and comment on the future.

Find the past “On This Day in History” here.

September 22 is the 265th day of the year (266th in leap years) in the Gregorian calendar. There are 100 days remaining until the end of the year.

On this day in 1862, President Abraham Lincoln issues a preliminary Emancipation Proclamation, which sets a date for the freedom of more than 3 million black slaves in the United States and recasts the Civil War as a fight against slavery.

When the Civil War broke out in 1861, shortly after Lincoln’s inauguration as America’s 16th president, he maintained that the war was about restoring the Union and not about slavery. He avoided issuing an anti-slavery proclamation immediately, despite the urgings of abolitionists and radical Republicans, as well as his personal belief that slavery was morally repugnant. Instead, Lincoln chose to move cautiously until he could gain wide support from the public for such a measure.

In July 1862, Lincoln informed his cabinet that he would issue an emancipation proclamation but that it would exempt the so-called border states, which had slaveholders but remained loyal to the Union. His cabinet persuaded him not to make the announcement until after a Union victory. Lincoln’s opportunity came following the Union win at the Battle of Antietam in September 1862. On September 22, the president announced that slaves in areas still in rebellion within 100 days would be free.

The Emancipation Proclamation consists of two executive orders issued by United States President Abraham Lincoln during the American Civil War. The first one, issued September 22, 1862, declared the freedom of all slaves in any state of the Confederate States of America  that did not return to Union control by January 1, 1863. The second order, issued January 1, 1863, named ten specific states where it would apply. Lincoln issued the Executive Order by his authority as “Commander in Chief of the Army and Navy” under Article II, section 2 of the United States Constitution.

The proclamation did not name the slave-holding border states of Kentucky, Missouri, Maryland, or Delaware, which had never declared a secession, and so it did not free any slaves there. The state of Tennessee had already mostly returned to Union control, so it also was not named and was exempted. Virginia was named, but exemptions were specified for the 48 counties that were in the process of forming West Virginia, as well as seven other named counties and two cities. Also specifically exempted were New Orleans and thirteen named parishes of Louisiana, all of which were also already mostly under Federal control at the time of the Proclamation.

The Emancipation Proclamation was criticized at the time for freeing only the slaves over which the Union had no power. Although most slaves were not freed immediately, the Proclamation did free thousands of slaves the day it went into effect in parts of nine of the ten states to which it applied (Texas being the exception). In every Confederate state (except Tennessee and Texas), the Proclamation went into immediate effect in Union-occupied areas and at least 20,000 slaves[2][3] were freed at once on January 1, 1863.

Additionally, the Proclamation provided the legal framework for the emancipation of nearly all four million slaves as the Union armies advanced, and committed the Union to ending slavery, which was a controversial decision even in the North. Hearing of the Proclamation, more slaves quickly escaped to Union lines as the Army units moved South. As the Union armies advanced through the Confederacy, thousands of slaves were freed each day until nearly all (approximately 4 million, according to the 1860 census) were freed by July 1865.

Near the end of the war, abolitionists were concerned that while the Proclamation had freed most slaves as a war measure, it had not made slavery illegal. Several former slave states had already passed legislation prohibiting slavery; however, in a few states, slavery continued to be legal, and to exist, until December 18, 1865, when the Thirteenth Amendment was enacted.