Thoughts – The Nature of Our Digital Lives

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In the information age who owns and has access to your data?

The genesis of this research project on how technology has changed politics is my original masters thesis completed at The Fletcher School of Law & Diplomacy in 2011. The question my thesis addressed was:

If This Is the Information Age, Is Our Information Sufficiently Secure From Theft and Illicit Use?

My thesis comprises Part 3 of this research project. My thesis concluded our information is not sufficiently secure from theft and illicit use. It also concluded intelligent multi-factor authentication was the answer to protecting our real and digital lives. The thesis didn’t address in depth the issue of who owns our data and has access to it. In the wake of the recent FBI v. Apple case about encryption, the specific aim of this research paper is to explore who owns our data and has access to it in the modern information age. This post is written from the point of view everyone has a real life and digital life, however the two do not share the same set of constitutional and human rights under the eyes of the law.

Background discussion will begin by revisiting how both the technologies of religion and governance seek progress and their impacts on our real and digital lives. I will then briefly revisit the research of famed Yale Constitutional scholar, Jack Balkin, on “The Constitution In the National Surveillance State”. It is also instructive to understand what the U.S. President, his NSA review panel, and the top liberal legal scholars in the U.S. think about privacy security and their own ideas. This will touch on the homogenization of the U.S. political branches of government and how they are using administrative powers to make government simpler. Background will conclude with why our information is not sufficiently secure from theft and illicit use and lead us to the main points of the research post.

The main thrust of this research post will begin by discussing who owns our data. This will lead into discussion about individual vs. corporate ownership of data and devices. It will also touch on the nature of the business model in the technology industry and how it monetizes the information it has on all of us. This will bring us to the question of what does data ownership equate to. Is data ownership really data access?

The next series of questions will focus on who or what has access to our data and why. It will explore the question of whether or not we truly have access to all the data about us that is spread across the globe. This will lead us to explore who has access to our data and why. The discussion will center on research on how the NSA is preparing the U.S. for a digital arms race and future battles. I will also discuss how not all encryption methods live up to their promises and why. This portion of the research post will close by addressing whether we as individuals have control over our data.

The final section will address who has access and control of our data and why. It will begin by exploring the role of the U.S. government in ownership and access to personal data. The conversation will then explore whether the U.S. government has sufficiently protected our data. This section will close by discussing whether the U.S. government is in the business of protecting our digital lives or primarily its own.

I will begin closing the research post by discussing the current legal battle between Apple and the FBI to unlock encrypted iPhone data. This case is destined for the Supreme Court, a court whose ideological composition suddenly changed with the untimely death of Justice Antonin Scalia. What the debate has subtly highlighted is the issue of intelligent authentication in protecting our real and digital lives.

I will close the paper with final thoughts on who owns and has access to our data and the likelihood of taking ownership of our data back in the future

Specific Aims

  • The question of who owns our data needs clarification
    1. Do we individually own our data collected by companies?
    2. Do technology companies truly own our data or just rent/sublet it?
    3. Does data ownership really mean data access?
  • The question of who or what has access to our data needs examination
    1. Do we have access to all of our data?
    2. Who has access to our data and why?
    3. Do we have control over our data?
  • Who has control of our data and why?
    1. What role does the U.S. government play in ownership and access to personal data?
    2. Has the U.S. government sufficiently protected our data through rule of law or other means?
    3. Is the U.S. government in the business of protecting our data or its own?

Background

Throughout history the technologies of governance and religion have competed for the hearts and minds of humans.(1) Humans are emotion machines and these competing technologies were designed to give humans hope and faith in a changing world.(2) These technologies, to a degree, have always relied on human information in order to serve their meaningful purposes, however the 21st century has experienced an explosion of human activity and human information that is now digitized.(3) I argued in my original masters thesis in 2011, every human has a digital twin, except that twin doesn’t share the same set of rights or liberties under the eyes of the law.(4) The concept of our digital life is now firmly understood today in popular culture.

In response to a global war on terrorism, governance systems in their pursuit to give human emotion machines hope and faith in their security have sought progress through changes in the technology of the law/governance. These changes in the law were not always public but in secret. Thanks to adversarial journalists and brave whistle blowers, we now know the extent to which the U.S. government and its allies have gone in the name of keeping us safe. A powerful lens to evaluate the exact extent to which governments have gone was to evaluate the modern U.S. national surveillance state on the spectrum between democratic and authoritarian. This was done by using the framework provided by Yale legal scholar, Jack Balkin, in his work, “The Constitution in the National Surveillance State”.

“The question is not whether we will have a surveillance state in the years to come, but what sort of surveillance state we will have.” – Jack Balkin

According Balkin, The National Surveillance State poses three major dangers for our freedoms.(5) Because the National Surveillance State emphasizes ex ante prevention rather than ex post apprehension and prosecution, the first danger is that government will create a parallel track of preventative law enforcement that routes around the traditional guarantees of the Bill of Rights.(6)

The second danger posed by the National Surveillance State is that traditional law enforcement and social services will increasingly resemble the parallel track.(7) Once governments have access to powerful surveillance and data mining technologies, there will be enormous political pressure to use them in everyday law enforcement and for delivery of government services.(8) If data mining can help us locate terrorists, why not use it to find deadbeat dads or even people who have not paid their parking tickets?(9) If surveillance technologies signal that certain people are likely threats to public order, why not create a system of preventative detention outside the ordinary criminal justice system?(10) Why not impose sanctions outside the criminal law, like denying people the right to board airplanes or use public facilities and transportation systems?(11) And if DNA analysis can identify people who will likely impose high costs on public resources, why not identify them in advance and exclude them from public programs and other opportunities?(12) The more powerful and effective our technologies of surveillance and analysis become, the more pressure the government will feel to route around warrant requirements and other procedural hurdles so that it can catch potential troublemakers more effectively and efficiently before they have a chance to cause any harm.(13)

The third major threat to our freedoms according to Balkin is private power and the public- private cooperation.(14) Because the Constitution does not reach private parties, the U.S. government has increasing incentives to rely on private enterprise to collect and generate information for it.(15) Corporate business models, in turn, lead companies to amass and analyze more and more information about people in order to target new customers and reject undesirable ones.(16) As computing power increases and storage costs decline, companies will seek to know more and more about their customers and sell this valuable information to other companies and to the government.(17)

After the initial set of NSA documents released to journalists by the whistle blower Edward Snowden, I was able to place the U.S. government on the spectrum of a democratic or authoritarian national surveillance state using Balkin’s framework.(18) Two years later, after some public debate, government policy considerations, and further NSA document releases, I revisited the same question.(19) At both instances, I found the U.S. to be deeply an authoritarian national surveillance state with respect to the natural law treatment of human civil liberties. In fact, one can easily conclude the U.S. government has no intention of reversing this trend.

In addition, I gathered qualitative data directly from some of the leading legal scholars in the U.S. on these authoritarian findings. Some of these legal scholars ended up on President Obama’s NSA review panel. This data collection enabled me to answer some critical questions, which you can read in depth at the following links:

What does Obama and his NSA Review Panel really think about privacy/security and why?

What do America’s top liberal legal scholars think about surveillance, governance, and their own ideas?           

The net result of these research projects is the U.S. president, his NSA review panel, and some of the top legal scholars on these issues have no real interest in respecting your privacy or security for that matter. Why is this the case? This group of powerful people is devout to the religion of state power through the administrative functions of the modern state. The aim of these administrative functions is to make government “simpler” in the words of Cass Sunstein. Simple in this context equates to authoritarianism. Another method for understanding how these government policies that favor expansions of government power persist, regardless of the political party in power, can be explained by The Fletcher School’s Michael Glennon and his work on “National Security and Double Government”. Very simply double government can be explained as the distinction of policy power between U.S. elected officials and the unelected officials (bureaucrats) of the vast administrative institutions of national security. You can read in more detail on National Security and Double Government here:

National Security and Double Government (Madisonians vs. Trumanites)

These unlawful/unconstitutional administrative functions manifest in a way that has homogenized the three branches of U.S. government. All three branches act in the interests of the government first, any downstream positive implications for everyday people are simply unintended byproducts. For further reading on the homogenization of the U.S. Political class, you can read in more depth at the following links:

The homogenization of the U.S. Political Class – Legislative Branch

The homogenization of the U.S. Political Class – Executive Branch

The homogenization of the U.S. Political Class – Judicial Branch

These findings provide a reasonable platform to understand how the traditional principles in U.S. governance have been tortured, in order to serve the needs of the state, not the people it is intended to serve.(20) The tortured principles of governance also help explain why our information is not sufficiently secure from theft and illicit use.(21)

A reasonable person would think the free press in the U.S. would step up and act as the 4th estate to serve the public interest in these matters, however the same group of legal scholars and government officials have labored to weaken the notion of free press and freedom of speech over time.(22) For further understanding on how the U.S government can restrict your First Amendment rights you can read more here:

How can the U.S. government restrict our first amendment rights?

Lets now begin to examine who owns your data.

Who Owns Your Data?

Your data is rarely, if ever, actually owned by you. Thanks to a proliferation of wireless devices, cloud computing, and Internet of things; humans emit data during all hours of the day. Our digital lives and real lives are one in the same, however there is a further bifurcation. Both our digital lives and real lives have dual personas that are important to distinguish, personal and professional.

Our personal personas have intrinsic human and Constitutional rights. If you own your devices personally and subscribe (pay money) for online services such as email, etc. there is a legal contract to your data ownership. The nature of the services you subscribe to, even if you pay money, may still be able to monetize your data by selling it to aggregators, but that is usually disclosed. If you are using “free” services you are just paying for them with a different currency. That currency is the right to your data and data about you. There is no such thing as a free lunch. So how does this play out in our professional lives?

Our professional persona data operates under different rules than personal data. If your employer provides you computers, phones, cell services, etc. the data emitted from those machines and services is not your own but the property of your employer, even if they are also allowed for some limited personal use. Where your employer stores this data also has implications.

Internal corporate IT at major corporations was traditionally managed internally with servers, software, and storage managed on the corporate premise. This is generally known as “Private Cloud”. Due to advancements in software-as-a-service (SaaS), high speed data, and increased ownership and complexity of end user devices, corporate IT has migrated from internal IT manager to one where they subscribe to “public cloud” based services customized to their unique needs. Great examples of this are Amazon Web Services, Dropbox, Google Business, Microsoft 365, IBM Watson, etc. etc. The core drivers to this trend are cost and operational efficiency.

There are also data aggregators for both our personal and professional lives. Data aggregators are in the business of collecting and managing digital profiles on us collected and shared through partnerships with web based companies/services. Some companies refer to this as open source intelligence because they are just collecting data that is in theory already publicly available. Just like stocks and bonds are an asset class, to the data aggregation industry our data is an asset class.

Currently the Federal Communications Commission is proposing new rules in principle will tighten and close some of these issues.(23) Privacy advocates are in support of the proposed rules but the delta differences between the proposed rules and the rules that go into effect through administrative law, will certainly be different.

The clear issue at hand is that data about our dual persona roles is everywhere and nowhere. We rarely know where it is at, what country it is stored in, have access to it, let alone about what those systems instruct those who have access to them about us. So if data about us is both everywhere and nowhere and we don’t have access and the ability to control it, who actually owns the data? Lets now explore the nuances of access to data.

Who or What Has Access To Your Data?

If you don’t have access to your data do you really own it? Probably not. Do the companies and institutions that do have access and utilize the data own it? It depends. Depending on where data is stored and the rule of law of where that data is physically domiciled usually dictates the answer to this question. If interested in going deeper into this question I recommend consuming recent testimony to the U.S. Congress by Brad Smith, the President and Chief Legal Officer at Microsoft. Smith goes into excruciating detail about the nuances of international conflicts of law and their implications for cross border data requests.

So what else may have access to your data? Groups of hackers in the business of infiltrating systems for the purposes of disruption or destruction will gain access. National surveillance systems in the business of collecting intelligence information also have access. Due to the murky nature of the Internet and the issue of “attribution” it can be very difficult to distinguish between nefarious groups of hackers and national security institutions. The core issue for those managing digital systems is to try and understand the correlation between fraudulent accounts and fraudulent activities. To further highlight how this access issue is being exploited, lets quickly look at how the NSA is preparing the U.S. for a digital arms race and future battles. These findings come directly from the source documents provided to journalists by NSA whistle blower, Edward Snowden

The NSA and U.S. are planning for wars of the future in which the Internet will play a critical role, with the aim of being able to use the net to paralyze computer networks and, by doing so, potentially all the infrastructure they control, including power and water supplies, factories, airports or the flow of money.(24)

From a military perspective, surveillance of the Internet is merely “Phase 0” in the U.S. digital war strategy.(25) Internal NSA documents indicate that it is the prerequisite for everything that follows.(26) They show that the aim of the surveillance is to detect vulnerabilities in enemy systems.(27) Once “stealthy implants” have been placed to infiltrate enemy systems, thus allowing “permanent access,” then Phase Three has been achieved – a phase headed by the word “dominate” in the documents.(28) This enables them to “control/destroy critical systems & networks at will through pre-positioned accesses. (laid in Phase 0).”(29) Critical infrastructure is considered by the agency to be anything that is important in keeping a society running: energy, communications and transportation.(30) The internal documents state that the ultimate goal is “real time controlled escalation”.(31)

Attribution in the digital world is difficult and requires considerable forensic effort.(32) The NSA utilizes a wide array of tools known as malware and implants to exfiltrate systems.(32) They even do this to read over the shoulders of other National Surveillance organizations to take advantage of their access.(33) The NSA refers to this tactic as “Fourth Party Access”.(34) So it is very difficult to distinguish the activities of government hackers and loosely affiliated hacker organizations, but there is an important strategic difference.(35) The NSA plans on using what they call cyber defense as a platform for cyber attacks.(36)

A core method for covering their tracks is the utilization of what the NSA documents refer to as “Unwitting Data Mules”.(37) What this means is the NSA can control your hardware on your behalf to access and/or steal others information.(38) They can even do this via your mobile devices.(39) The net effect of this is we do not have control of our information or hardware because NSA and other national surveillance institutions can utilize your digital life and thus your real life to serve their purposes.(40) They do this via automated systems utilizing artificial intelligence.(41) 

Moreover, the NSA also works very hard to weaken and break encryption standards, even standards it supports through its work with the National Institute of Standards and Technology (NIST). So if you are curious why not all methods of encryption live up to their promises and why, you can read in more detail here how the NSA contributes to making our information less secure.

Not All Encryption Methods Live Up To Their Promises

If your digital life and real life are effectively one in the same, can illicit actions taken by your digital life that are truly not your own, incriminate your real life? Perhaps if someone wanted that to be the case, which is why I argue our digital lives and real lives need to be treated as equals under the eyes of the law. Your digital life should not be able to incriminate your real life under the Constitutions 5th Amendment. Lets now explore why we don’t have complete access and control over our data.

Do We Have Control Over Our Data?

We do not have control over the vast majority of our data. This is due in no small part because the U.S. government does not believe it to be in its interests in real terms. Politicians and Bureaucrats will of course rhetorically say they care in public discussion, but real policies and previous top-secret documents prove the complete opposite.(42) If the Obama administration is the most transparent administration in U.S. history as the President often says, he must be implying the most transparently dishonest and corrupt in history.(43) Further evidence of this is the Obama Administrations efforts to hide and delay information from the vast majority of U.S. Inspector Generals who exercise oversight of our government institutions.(44)

Moreover, not only is the U.S. government not truly interested in protecting our data and privacy, it cannot even protect its own information from access & disruption attacks.(45) The Office Of Personnel Management retains all government employee information, including top-secret access applications, finger print database, etc.(46) The majority of this highly sensitive information about all U.S. government employees was stolen including the fingerprint database.(47) Why this critical information was not protected with encryption and intelligent authentication methods is beyond comprehension, however given Edward Snowden in 2013 was able to walk out of the NSA with the single largest trove of top-secret documents undetected, helps clarify the picture. If U.S. Governance is in the business of providing security and safety of our real and digital lives, it has failed by any standard. I attribute the blame to the people who lead our country and operate our institutions, not the system itself. Both political parties are utilizing the U.S. governance system in a corrupt manner because a system is only as good as the people administrating it. Voting in new people in the “hope” things will “change” for the better will not be enough though. I recommend a more direct form of democracy here utilizing the system we currently have to aid in verifying positive change.

The whistle blower Edward Snowden gave the information to responsible journalists to inform the public exactly what the U.S. government has been secretly doing in our names. Snowden has been called a traitor among many other things by those devout to the religion of state power. It is my educated opinion he has served the public in the pursuit of safety and security more than the U.S. government has. It was a more direct form of democracy, and a potent one.

In response to the arguably unconstitutional government policies Edward Snowden’s documents revealed, in 2013 President Obama convened a panel of homogenous political insiders to evaluate the government’s activities and provide recommendations.(47) Based on my research efforts, this panel is devoted to he religion of state power.(48) One of the recommendations in their report, was the U.S. government needs to rapidly institute encryption in all of its digital systems and further protect them with intelligent multi-factor authentication technology. Encryption is intuitively obvious. Intelligent multi-factor authentication helps administrators of digital systems understand the correlations between fraudulent accounts and fraudulent activity. This understanding helps them protect access to the system by answering three key questions all based on a level of confidence and trust the people/institutions are who they say they are:

  • Are you who your say you are?
  • Where do you want to go?
  • What do you want to do?

Intelligent-Multi-factor authentication is the most cost effective and secure approach to authentication and has become the unofficial default standard in many technology systems. A core issue with this unofficial standard status is each company/institution implements the process in a non standard way with varying results/implications. One example high in the public’s mind at this time is the FBI v. Apple case about circumventing Apples iPhone encryption.(49)

The Apple iPhone has a method of multi-factor authentication supporting its passcode sequence. The FBI cannot route around this because after 10 failed attempts, the device automatically erases the data. Credible people and institutions refer and validate this process to be dubbed “Event Driven Security Architecture.”

So if the U.S. government already knows the combination of strong encryption of data in motion and data at rest, when coupled with intelligent multi-factor authentication is the most secure approach to securing systems. Why is it truly asking Apple to circumvent its encryption by using the law to force it to write a version of it operating system to remove its event drive security authentication system?

In my humble opinion, it is because the U.S. government is no longer truly in the business of protecting the privacy and security of its citizens, but in the business of expanding and protecting is own power over U.S. citizens, and arguably the rest of the world. This dangerous legal precedent would have tremendous foreign policy implications because it would mean other authoritarian countries, who the U.S. government is publicly critical of to make itself look better, would be able to leverage the same precedent for their own authoritarian purposes. This would further put U.S. citizens and arguably all people leveraging similar technological tools at risk of their real and digital lives being compromised.

According to the Snowden documents, the government doesn’t need probable cause to investigate people it believes are affiliated with terrorism, it needs a much lower standard called “reasonable articulable suspicion”. Reasonable Articulable Suspicion is tantamount the government needing a conspiracy theory about someone to investigate.(50) The government interprets “terrorism” as basically any behavior it doesn’t like.(51) So in the future, if the government doesn’t like what you are doing, it may consider you a terrorist and concoct a reasonably sounding theory you are conspiring to engage in a behaviors it simply doesn’t like. For Example: It may not like how you exercise your first amendment rights.

So why would the U.S. government put humans at increased risk through a very poor domestic and foreign policy stance in these matters? Noam Chomsky at MIT gives a credible and authoritative answer to this question.

Lets now dig deeper into the FBI v. Apple case for more context.

FBI vs. Apple – A debate about Intelligent Authentication

The FBI v Apple case is about circumvention of authentication technologies in order to set a legal precedent the U.S. government can use in hundreds of more cases. This is not a case about one phone. A person who committed a terrible domestic terror act used the iPhone in question. What they used this specific phone for as it relates to this event is unknown. The phone was not owned by the individual, but by his employer. That employer has been cooperating with the FBI since the event occurred. At the FBI’s instruction, the employer reset the users pass code.(52) The implication of this password change rendered the data resident on the phone inaccessible.(53)

Apple has been cooperating with the FBI in the case and provided data the device backed up to Apple’s iCloud system. However, there is approximately 6 weeks of data on the device that was not backed up to iCloud. Because the government asked the employer to reset the pass code, the device cannot auto-backup resident data to the iCloud where Apple could then easily provide it to the FBI. An important point to understand, not all the data on a device is backed up. So was the password reset the FBI instructed the employer to do an accident? In my opinion; probably not.

My opinion on this matter rests on the fact the head attorney for the U.S. national security apparatus, Robert Litt, says anti-encryption legislation and legal precedents associated to terrorist activities may help turn the tide in the government’s favor in these matters.(54) In essence, he said the government should keep its options open for pro-government security and surveillance opportunities to publicly legitimize policies that have previously been kept secret. Terrorism and fear are always positive motivators for expansions of government power. Apple is fighting the FBI on this matter and Tim Cook, the CEO of Apple, has strong opinions.

Tim Cook says this legal fight is about the future.(55) The future of privacy, our relationship to technology tools, and relationship to government.(56) In essence, Tim Cook makes the case that our digital lives and real lives are effectively one in the same and are not being treated equally under the eyes of the law.(57)

The FBI’s point of view according to Director James Comey is different. Comey put this predicament in a congressional hearing on the San Bernadino case in February.(58) “Law Enforcement, which I’m part of, really does save people’s lives, rescue kids, rescue neighborhoods from terrorists,” he said. “And we do that a whole lot through search warrants of mobile devices. So we’re gonna move to a world where that is not possible anymore? The world will not end, but it will be a different world than where we are today and where we were in 2014.”(59)

Comey has framed this conflict as a choice between privacy and security, a zero-sum trade-off.(60) But Cook flatly rejects this view as a red herring. (61) “I think it’s very simplistic and incorrect,” he says. “Because the reality is, let’s say you just pulled encryption. Let’s you and I ban it tomorrow. And so we sit in Congress and we say, Thou shalt not have encryption.(62)What happens then? Well, I would argue that the bad guys will use encryption from non-American companies, because they’re pretty smart, and Apple doesn’t own encryption.”(63)

Cook equates encryption to air, water, and sunlight.(64) He understands encryption also protects terrorists as well as the good guys.(65) “We get that,” Cook says.(66) “But you don’t take away the good for that sliver of bad.(67) We’ve never been about that as a country.(68) We make that decision every day, right?(69) There are some times that freedom of speech, we might cringe a little when we hear that person saying this and wish they wouldn’t.(70) This, to us, is like that. It’s at the core of who we are as a country.”(71) Encryption is one of those technological realities that are so ubiquitous and powerful that they alter political realities–it has a whiff of revolution about it.(72) It changes the balance of power between government and governed.(73)

So given the points of view of Apple and the Government. How can Intelligent multi-factor authentication help alleviate the risks concerned by both parties? If event-driven security architecture attributed to authentication systems was standardized, this would enable explicit rules of governance to be written. Explicit rules are excellent governance. Permission based authentication systems can keep users privacy safe, further secure critical infrastructure systems by not allowing our digital lives to be taken over by nefarious actors, and enable technology companies to give law enforcement permission based access when legally supported. Intelligent authentication is the answer. This is why it needs to become a default standard for authenticating and protecting your life, because nobody is quite like you.

Conclusion

Our real lives and digital lives are one in the same and at serious risk. The U.S. government and the people who administrate our governance are not sincerely interested in our privacy or security. In response to the legal battle between the FBI & Apple, the tech industry and many other people and institutions have written Amicus briefs and letters of support for Apple’s point of view. This is terrific momentum, but the bigger problem of poor and authoritarian U.S. governance will remain persistent. The U.S. government already knows encryption coupled with intelligent multi-factor authentication is the most secure method for permission-based access for its own systems. We also need a resurgence of public virtue to seek the change we obviously need to make in the technology of government for it to recognize and protect our rights. It starts with intelligent authentication & encryption because privacy matters to human progress.

What’s Next – Supreme Court Ideological Composition

On March 16th 2016 President Obama nominated Federal Circuit Judge Merrick Garland to fill the vacancy on the Supreme Court created by the untimely death of conservative justice Antonin Scalia.(74) Putting aside the partisan rancor between the Senate republicans and the White House over whether it’s appropriate for a president in his final year of office to nominate a Supreme Court judge.(75) Lets look at Merrick Garland through the prism of Michael Glennon’s work on “National Security and Double Government”, specifically his focus on how Supreme Court Judges are chosen for nomination. For detailed reading on how the Supreme Court has homogenized in favor of expansions of state power you can do so here:

The homogenization of the U.S. Political Class – Judicial Branch

Glennon writes the courts, which Alexander Hamilton called the “least dangerous” branch; pose the least danger to the silent transfer of power from the nation’s Madisonian institutions to the more efficient Trumanite national security bureaucracies. (76) Federal judicial appointees are selected, and vetted along the way, by those whose cases they will later hear: the Trumanites and their associates in the White House and Justice Department. (77) Before an individual is named to the federal bench, a careful investigation takes place to ensure that that individual is dependable. (78) What this means, in practice, is that appointees end up as trusted friends of the Trumanites in matters touching upon national security and other issues.(79) Presidents do not appoint individuals who are hostile to the Trumanites, nor does the Senate confirm them.(80) The deck is stacked from the start against challenges to Trumanite policies.(81)

Judicial nominees often come from the ranks of prosecutors, law enforcement, and national security officials, and they have often participated in the same sorts of activities the lawfulness of which they will later be asked to adjudicate. Merrick Garland as a SCOTUS nominee fits this exact mold. In fact, one can make the argument modern supreme court justices are manufactured, not chosen.

Merrick Garland was a Federal Prosecutor just like Justices Sotomayor, Breyer, Souter, Alito, and Chief Justice Roberts.(82) He attended Harvard Law School as the majority of U.S. SCOTUS judges have. The risk is low nominees to the Supreme Court will meaningfully challenge executive powers or restrain national security institutions, else they won’t be even nominated. What does Garland’s judicial decisions say about his tendencies?

The former prosecutor has a relatively conservative record on criminal justice according to legal scholars.(83) A 2010 examination of his decisions by SCOTUSBlog’s Tom Goldstein determined that “Judge Garland rarely votes in favor of criminal defendants’ appeals of their convictions.” With the nomination of Garland, Obama will not likely get an overly progressive judge, but he will get a judge who will side more often than not with the liberal justices with occasional votes with the conservatives if nominated.

It is my opinion Merrick Garland will eventually be confirmed driven by political necessity of the Republican Senate in a Presidential Election year. Given Donald Trump and Ted Cruz are the leaders in race for the republican nomination; Donald Trump may support Merrick’s nomination. Trumps support would put pressure on the Senate republicans to act, thus leaving little to no political maneuverability for Ted Cruz and his exceptionally conservative views as a Harvard educated legal scholar himself. This type of political move also gives the aura conservatives actually chose and approved Garland.

How would a SCOTUS rule on Apple v. FBI with Merrick Garland in a few years? It is difficult to say, but it would appear chances are in favor of the Government and not Apple or our privacy, with or without Garland on the court. I would also say our Second Amendment rights are more at risk with Garland too.

What Can Your Physical Life Do To Help Protect Your Digital Self?

New technology and tools always present a two edge sword. They can be used for good and bad behaviors.  On Balance and in the long run there is more benefit to having them than not. Humans, like tools and technology, evolve and change too and its always helpful to have a defined meaningful utilization for our usage of tools.

As humans one of our most precious assets in life is time. Putting parameters around the amount of time spent on digital devices and limiting the amount of information we share, in all respects, would go a long way to protecting and enhancing our real and digital lives.

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