Has The Fourth Amendment Been Dismantled By Technology And The Courts?
from the getting-there dept
Michael Scott points us to a fascinating book chapter by Christopher Slobogin, in which he discusses how the courts have effectively stripped away the Fourth Amendment in a technological era by effectively saying that "virtual" technology-based searches don't fall under the Fourth Amendment and, thus, do not need the same sort of oversight. This is, as he notes, a problem and he argues that it's time to bring those types of searches back under the umbrella of the Fourth Amendment:Most virtual searches are not Fourth Amendment searches or, if they are, they can usually be carried out on little or no suspicion if they do not involve interception of communication content. Given the huge amount of information that virtual searches provide about everyone's activities and transactions, traditional physical searches--with their cumbersome warrant and probable cause requirements--are much less necessary than they used to be. American citizens may eventually live, and indeed may already be living, in a world where the Fourth Amendment as currently construed is irrelevant to most law enforcement investigations. Technological developments have exposed the fact that the courts' view of the Fourth Amendment threatens the entire edifice of search and seizure law.The paper suggests some principles for bringing such searches back under the purview of the 4th Amendment -- something that law enforcement and the government would almost certainly fight. However, it does make a really strong case for why such searches do deserve 4th Amendment protections. Between mistakes and abuse, there's a reason why the founding fathers wanted to make sure that there was probable cause before the government invaded your privacy. Why should that change when things are digital?
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Filed Under: courts, fourth amendment, privacy, regulations
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This. OMG, this.
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Your ISP is private property, so for them to physically come into your ISP and search its data should require a warrant.
The website providers that you visit are hosted on private property, so the same principle applies here too.
Though one may argue that making the providers hand over a copy of the data that it has is not the same thing as physically entering private property and taking physical property. I still think it should require a warrant.
Maybe the wiring in transit that are on public property, though I still think tapping that should require a warrant.
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It should, but unlike your home the person responsible for securing it isn't usually the same as the person depending upon the security. Few people are as keen to fight for other people's rights as they are for their own..
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So just encrypt everything, use VPN's, and be done with it. If they get any data they won't be able to read it.
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In fact, by the very nature of the internet, in order to connect to something, we must tell it about ourselves, at least a bit. At bare minimum, we must reveal our IP address, in order to make both ends of the connection. Usually we also provide basic things like operating system, browser, and so on in order to get a proper response.
An ISP shouldn't have any more or any less protection than your phone company. The standards to obtain a warrant for phone records is fairly low, and phone companies often will provide the information without actually needing a warrant, as they know one can be easily obtained.
My feeling is that any improvement on fourth amendment rights should also be raised with stricter requirements for IP logging and access from ISPs. They should be able to turn over customer information in a short period of time, rather than taking weeks to turn over very few records. My feeling is if you are going to address the issues, things should be addressed on all sides.
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That is not true. The police can follow you for days on end without a warrant, and it's not stalking.
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You say the police can follow you for days and it's "not stalking".
Wouldn't it be more accurate to say that the police can stalk someone for days and not be violating the law?
After all, what exactly is the definition of the word stalking"?
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Given that "stalking" has a common, vernacular, idomatic meaning, I would have say that you're quibbling when you say stalking referring to illegal conduct. In the vernacular, the Police can certainly stalk you legally. Maybe so can anyone else.
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Many cops have been dismissed for NOT getting that judges consent beforehand.
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Similarly, the degree of surveillance on the internet can be much higher than on the phone, because of the nature of the medium and because my movements and actions are/can be logged in much greater detail.
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Of course your emails are more sensitive, that's why they receive more protection than your phone records.
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Just because you and/or others do so, does not mean that I or everyone does so.
You've got my name, find a pic of me on the net.
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http://btrussell-fishingthroughlife.blogspot.com/
Second guess:
http://www.myspace.com/btrussell
Third choice has you as a school teacher in allentown, which I don't think. Are you related to the fedora project?
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No!
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Can you say wiretap warrant?
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I think they need a warrant to start scarfing up packets, but I'm not 100% certain, and in this day and age of NSA hoovering and "National Security Letters" who can say? Also, there's persistent rumors that phone phreaks and other dodgy characters have hacked DCS-3000 (a.k.a. "Carnivore") and used it for their own purposes. This has happened in Greece: type "The Athens Affair" into Google for a good time.
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That is simply untrue. Checkpoints do not work that way, nor could they. I think you're buying the 4th Amendment FUD hook, line, and sinker.
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What state do you live in, AJ? We have those in Oklahoma at least once a year (generally around New Year's), and I hear about them in Texas more frequently than that.
Checkpoints do not work that way, nor could they.
Really? You're saying that it's physically impossible for this to happen??? Seriously?
I think you're buying the 4th Amendment FUD hook, line, and sinker.
I think you've gone the opposite direction, AJ. Roadblock searches happen frequently and have been challenged frequently, with judgments going in both directions.
But, hey, it's America. You're welcome to disbelieve in these searches, along with the existence of puppies and Germany, if that's what you want.
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But that's not the case with these searches, AJ.
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While capricious, random stops are not allowed, roadblock stops in general are fine according to the Court:
Delaware v. Prouse, 440 U.S. 648 (1979)
Suspicionless sobriety checkpoints are allowed under the Court's holding in Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990):
Martinez-Fuerte was a suspicionless border patrol checkpoints away-from-the-border case, in case you're wondering
Suspicionless checkpoints for narcotics are NOT allowed, though roadblocks to capture a terrorist or dangerous criminal would be allowed, under City of Indianapolis v. Edmond, 531 U.S. 32 (2000):
And a police checkpoint to ask motorists about a recent hit-and-run was upheld by the Court in Illinois v. Lidster, 540 U.S. 419 (2004):
Fourth Amendment doctrine is one of my favs...
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None of those judgments could supersede the Supreme Court.
In addition to my comment below (which explains that I wasn't commenting on the legality of the infringement), I'd like to add that something like a dozen states have laws that specifically prohibit roadblock-type searches.
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Which pretty much contradicts what you said previously. Thanks for going ahead and proving *yourself* wrong.
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I don't think I contradicted myself at all. Random checkpoints/roadblocks for "no reason" are not allowed.
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There is no probable cause. Just checking to see if you are breaking the law.
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There is no probable cause. Just checking to see if you are breaking the law.
Under the 4th Amendment, searches don't have to be based on probable cause. They only need to be reasonable.
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Or do you not have those spot checks I mentioned?
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Or do you not have those spot checks I mentioned?
The cops can't just pull anyone over for no reason to check if the driver is breaking any laws. That would be unreasonable. The cops can set up roadblocks/checkpoints where they check every car, but only for certain types of searches. The caselaw I quoted above lays out some of the contours of what they can do at these spot checks. For example, they can look for drunk drivers, but they can't look for trunks full of narcotics without any particularized reason to do so. They can look for bombs in your trunk if they're investigating a plausible tip that someone on that highway has a bomb in their trunk, but they can't make drivers get out of their cars and turn out their pockets without good cause. The idea is that at roadblocks/checkpoints, every car is treated the same. All the cops can do is ask questions, look in the drivers' eyes to see if they're bloodshot, check for proper paperwork, etc. They can't just pull people out of their cars, frisk them, and go through the car unless they have good reason.
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The Supreme Court disagrees with you.
http://en.wikipedia.org/wiki/Probable_cause
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http://en.wikipedia.org/wiki/Probable_cause
Respectfully, I think you're confused. Read the 4th Amendment yourself:
It says that people are secure from unreasonable searches. It does not say that only searches based on probable cause are reasonable. The only thing it says about probable cause is that if a warrant is issued, that warrant must be based on probable cause.
What the Court has said, and I want I think is often the confusion when talking about these things, is that in general a search is unreasonable absent probable cause or reasonable suspicion, except for in certain scenarios, like reasonable checkpoints, airport security, border stations, etc. In those scenarios, searches are allowed even though there is no probable cause. That's why TSA can "touch your junk," for example.
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The Supreme Court is the final arbiter of of what it means. It's really not (legally) open to your individual interpretation.
It says that people are secure from unreasonable searches. It does not say that only searches based on probable cause are reasonable.
If the Supreme Court says that probable cause is needed for a search to be reasonable, then so it is (legally). If you want to argue that, you need to take it up with the Supreme Court. Otherwise, your declarations carry little weight.
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I never suggested otherwise. I'm pointing you to the Amendment so you can read its plain language. The Court's interpretation is consistent with that plain language. I haven't been offering my interpretation, I've been offering the Court's opinion.
If the Supreme Court says that probable cause is needed for a search to be reasonable, then so it is (legally). If you want to argue that, you need to take it up with the Supreme Court. Otherwise, your declarations carry little weight.
The Court has not said that probable cause is needed for a search to be reasonable, as I've explained. I don't need to take anything up with the Court. What I'm telling you is their interpretation, not mine.
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http://www.lectlaw.com/def2/p089.htm
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You're entirely correct in that in that it does not explicitly say the only "reasonable" search is via a warrant, but to me the very fact that the two are linked in the same sentence suggests that writers intended the 2 to be linked and that a "reasonable search" should include a documented and sworn valid reason.
As to who is right I can only guess but it's always a little dissapointing to me that the constitution is held up as almost a holy document and wrangled endlessly by lawyers in nitpicky detail and semantic argument instead of reaching for the whole in intent and ideal.
Whether this is true about the brand new state of Georgia or not it sums up exactly how US law increasingly looks from outside to me - it looks like you've forgotten the ideal you started with.
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Checkpoints (such as drunk driving checks) are generally considered legal because they apply to everyone equally. All drivers on that road are checked. Nobody is singled out for DWB or anything like that.
To be fair, it doesn't take much to pull a car over. A fast lane change, a failure to signal, a burnt out light, etc. That gets the officer to the drivers side window, and allows them to do the plain sight look over of the car (as much for their protection as anything else).
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Sort of. Reasonable suspicion is the standard for a stop and frisk. A stop and frisk is a search under the 4th Amendment. See Terry v. Ohio, 392 U.S. 1 (1968).
Besides that, there are several other scenarios where a search is allowed even though there is no probable cause and no consent, like at the border, an airport, a fire marshal, etc.
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Now you're being ridiculous. I think what was meant was "no good reason". Of course there's always *some* reason, even if it's just "because we felt like it". Yeah, I see how that works.
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But it can't just for be any good reason. If you read the caselaw I cited above, the Court points out that the checkpoints can't be to discover "unknown crimes of the general sort." "Because we felt like it" is not an option, not if the checkpoints are going to be upheld as reasonable by the courts.
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Whew! That was the point of my statement flying over your head.
My response to Chris was about legal actions that infringe on our Constitutional rights, not about illegal actions that infringe on our Constitutional rights. In other words, I stated that it was an infringement, not that it was illegal.
I'm aware of the cases that reference this issue, but I'm also aware that most of them acknowledge the very same Constitutional infringement that I mentioned, with the caveat that the infringement is less important than the state's interest in these matters.
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Huh? They sure do. I've been through a few of them myself.
I think you're buying the 4th Amendment FUD hook, line, and sinker.
It seems to me that you're the one trying to feed folks some bull.
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You've been through checkpoints that were set up for no reason? I doubt it.
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No justifiable reason.
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According to whom? You? Do you consider sobriety checkpoints on nights when evidence shows there are more drunk drivers, like on New Year's Eve, to be reasonable? Maybe you don't, but I do, as does the Supreme Court. Of course, reasonableness is a relative term, and you're free to disagree.
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Or is it a case of "where evidence shows" when the evidence shows something that Legal Authority likes, and it's a case of "strick legality" where Legal Authority doesn't like the evidence? Like maybe in copyright law?
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Myself, I'd like to see you reconicle the two bases for argument that you've used. After your "hold the TSA to the law" post, I was beginning to think that maybe you actually had some kind of underpinnings for what your wrote, but now, I'm thinking you're just another "what the authorities do is Right" sort of guy, and possibly just a better quality troll.
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First, let’s get one thing perfectly clear, the authorities now have the right to seize your personal property, car, house, etc., on the suspicion of committing a crime.
Let me say that again, on the suspicion of committing a crime, not conviction.
If that is not unconstitutional then we might as well throw the whole damn constitution out.
We are no longer free, that has been stripped from us over the last half century and the war on drugs is by its very nature, is a war on the American people perpetrated by our government.
Now I'm not for dangerous drugs on our streets but remember this:
"Those who are willing to trade Freedom for security deserve neither."
Benjamin Franklin
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Benjamin Franklin
I've always thought that quote is stupid. If you're not willing to trade freedom for security, you wouldn't have any security.
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If I'm free to carry a toadsticker on a jet, I don't fear anyone with a box cutter.
If I'm free to videotape TSA TSO's, them I'm secure against petty abuses.
If I'm free to travel without identifying myself, I'm secure against an awful lot of governmental and corporate abuses, like that weird "residency permit" thing the PRC has.
If I'm free to "blow the whistle", I'm secure from a different set of governmental and corporate abuses.
What freedoms did you trade for your false security?
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Forget there ever was a constitution - America is owned by corporations and run by idiots. Get out while you can.
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Just ask ex-President Hosni Mubarak.
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4th Amendment
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Re: 4th Amendment
Wow, he's really gotten alot done. I'm impressed.
Man, I thought that the actual framers of the Constitution did some of those things, but hey, of course I'll believe you, random Internet guy. :)
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Re: 4th Amendment
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Re: 4th Amendment
So why was this post censored using techdirt's built-in censorship "report" button? He is simply expressing his views. I'm really surprised techdirt allows its readers to censor each other.
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Re: Re: 4th Amendment
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But according to techdirt, it's "censorship" when google removes certain search results from auto-completing, even though the same results show up in the search results. If that's "censorship," how is this not also "censorship"?
http://www.techdirt.com/articles/20110127/01360912852/will-googles-new-hamfisted-ce nsorship-autocomplete-raise-questions-human-meddling.shtml
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Interesting you say that as "Anonymous Coward".
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http://www.truecrypt.org :)
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http://www.truecrypt.org :)
I do love truecrypt. I use it on all of my computers and thumbdrives.
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You should try DiskCryptor. It's true open source (GPL, not just "disclosed source" with a proprietary license like Truecrypt") and has much tighter code. DiskCryptor even had system disk encryption before Truecrypt. Plus, they don't don't kick people off their forums for mentioning other programs, like the Truecrypt Nazis do.
The thing that DiskCryptor doesn't have is "containers" for virtual drives. It only encrypts existing volumes.
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/sarc
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/sarc
You'll never know. :)
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Criminal?
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Expectation of Privacy
The with respect to privacy internet is no different than the town square, so what you apply to one should be applied to the other. So if I am carrying a briefcase of secret documents through the town square and someone mugs me and takes and publicly posts the secret documents, that is a whole different thing. They should probably try and draw parallels between the real and "virtual" worlds when applying/revamping the Fourth
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Re: Expectation of Privacy
What you need to do is define the limits of privacy (preferably erring towards the greatest amount of privacy compatible with actually forming a coherent society) and then think on a case by case basis how those limits apply to a particular situation on- or off-line
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Re: Re: Expectation of Privacy
When I send a person to person/persons email, text, instant message or even a social network message, I see it no different than a phone call or postal letter and expect it to be considered as such.
When I post on a publicly viewable message board, forum, unsecured social network page or webpage, I see it no different than posting fliers on telephone poles, putting the info on a billboard, publishing in a book/magazine or shouting it from a soapbox in the town square and would expect to be held to similar public/governmental scrutiny as such.
It is all a question on who the recognized recipients for the message media type are. Internet or not, person to person communications and person to public communications seem pretty self-evident, the former should always fall under 4th amendment, wiretap and police access to postal mail and the latter should always be considered as part of the public discourse and public record.
To those who say that everything I do in public is valid for other parties or governmental record, I say: If I am running around naked and acting like a nut, I agree; but, if I have my hand in my pocket in public, it is no-ones right to know whether I am jingling my keys or my change and only if I am determined to be a threat/violator of some sort and have had proper due process does the government have the right to force me to show them.
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Re: Expectation of Privacy
None. You have no expectation of privacy in a public area, except with regards to your person or vehicle. As an example, anyone can record you, but no one can force you to turn out your pockets without a warrant.
The with respect to privacy internet is no different than the town square, so what you apply to one should be applied to the other.
No, the Internet is much more like a telephone line than a town square, and your telephone communications are private.
So if I am carrying a briefcase of secret documents through the town square and someone mugs me and takes and publicly posts the secret documents, that is a whole different thing.
A 'whole different thing' than what?
They should probably try and draw parallels between the real and "virtual" worlds when applying/revamping the Fourth
Or not, because the Fourth doesn't need revamping.
Laws regarding our privacy from the government need to be revamped, because of the Fourth Amendment, which is sort of the opposite of what you said.
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Re: Re: Expectation of Privacy
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Just So Long As They Don’t Take Away The Second Amendment...
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Re: Just So Long As They Don’t Take Away The Second Amendment...
Clearly, the Third Amendment is the only one that matters.
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Re: Just So Long As They Don’t Take Away The Second Amendment...
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Re: Re: Just So Long As They Don’t Take Away The Second Amendment...
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Re: Re: Re: Just So Long As They Don’t Take Away The Second Amendment...
heh
Kent State shootings
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Re: Just So Long As They Don’t Take Away The Second Amendment...
TheBigH claimed:
Waco, Texas, anybody?
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Government wlll do..
Even with the protections in place, nothing will stop the spooks and cops from ignoring them.
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Distrust
My job is to protect the environment and public health of the people I serve. How creating a distrusting atmosphere will help me do that is beyond me. Do I need regulations to do my job? Of course. Are there going to be people that won't do the right thing and legal action is needed? Unfortunately yes, but my training and education is to reach out and educate and train first. I can't do that if I the public is thinking I have some other motive than what I was hired to do. These continual assaults on all of our rights do not help. And it scares the hell out of me.
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Re: Distrust
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Re: Re: Distrust
Since corporate interests took over the government(particularly, the Supreme Court). http://en.wikipedia.org/wiki/Corporate_personhood
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Re: Distrust
Think of the government as a human body. You're the liver trying to tell the head of an alcoholic body to quit getting drunk because it's hard on you. Unfortunately, you're not the one in charge. The head will keep getting drunk even if it kills you.
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Examples in Reality
Worried about radiation at airports try the street
Good news; we can fight back!
My favorite because the pastor was acquitted and it has video
Somebody asked me why I have infowars as my link. Things like this is why.
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Re: Examples in Reality
TSA on the ground now
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