by Glen C. Davis

Recently, the Supreme Court ruled that GPS tracking devises violated the Constitutional Fourth Amendment guarantees because people have a reasonable right to privacy in their cars. As I understand the ruling, however, if you have OnStar® or one of the other government tracking devices already in your car, they can track you through that system.

On January 4th, the Denver Post reported on another example of the courts grappling with the Bill of Rights in the digital age. And the case is shaking up civil liberties groups.

The case involves Ramona Fricosu who was allegedly involved in a fraud scheme along with her husband. One of the items seized by the prosecutors was her laptop computer. The laptop, however, was encrypted and the prosecutor could not retrieve the contents. Fricosu refused to give the password citing her Fifth Amendment right against self-incrimination.

John Ingold of the Denver Post reported on the 24th, “In an order issued Monday, U.S. District Judge Robert Blackburn said requiring Ramona Fricosu to provide an unencrypted version of her laptop’s hard drive to prosecutors does not violate her rights against self-incrimination. Instead, Blackburn ruled that providing the unlocked laptop wouldn’t be self-incriminatory because it wouldn’t prove anything that the government doesn’t already know.”

Hanni Fakhoury, an attorney with the Electronic Frontier Foundation, still thinks the Fifth Amendment applies in this case, according to the article. The case is going to the 10th Circuit Court of Appeals.

This is actually a compelling case and one likely to make it to the Supreme Court. On the one hand, you do have a right not to provide incriminating evidence in the Fifth Amendment. That is why signing anything “under penalty of perjury” is quite frankly unconstitutional. You cannot be compelled to sign away your rights.

On the other hand, the Fourth Amendment guarantees, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated,…” While the police today have pretty much the same power that the “Redcoats” had prior to the revolution—which was among the chief complaints of the colonists—they still must obtain a warrant from a judge. In this case, they did that and the seized computer was among the evidence for their case. Whether or not the computer and the location of the computer was specified on the warrant as is REQUIRED by the Fourth Amendment is another topic.

In this case, I would have to agree with District Judge Blackburn. Apparently the laptop was just another piece of evidence in the pieces of evidence that they already had.

Let us set another scenario, however. Let us say that a person is sitting and using a wireless laptop at a coffee shop. A police officer wanders over and the person presses a button and locks the computer. Does the officer have a “probable cause” to order the person to unlock the laptop? No. This would violate both the Fourth and Fifth Amendment. If the officer “sees” something that the person is doing and knows that it is illegal, he may then have probable cause to arrest and cause the person to unlock the computer. He already sees it and knows it is there. If the coffee shop owner, however, sees actual evidence that the person is using the computer for illegal purposes and reports it, then the police have enough for a warrant and to cause the person to unlock.

Granted, in the case of Fricosu, the prosecutors and police have not “seen” the contents so they do not “know” there is anything related to the case on the computer at all. That may be an “out” in this case. Still, I believe there is enough “probable cause” that this does not represent a violation of either the Fourth or Fifth Amendment. Does the lock on your front door, for example, give you a Fifth Amendment right to keep officers from performing their duty after they have complied with the Fourth Amendment?

One question that might come up, however, is what about online storage sites? If a person stores the data at an online site that is not listed on the search warrant, can the police access it or use it as evidence? I would think not until they obtained another warrant for the evidence. Of course, that would be served to the provider of the service, not the defendant.

I preface it in this fashion because I find Schenck v. United States 249 U.S. 47 (1919) an interesting First Amendment case in light of what is happening today. It is important for more than just the fact that it coined two phrases.

In this case, Oliver Wendell Holmes wrote,

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.”

In paragraph 5 he writes further,

“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

This is the coining of the phrases, “You can’t yell fire in a crowded theater” and “clear and present danger.”

That begs the question of what is a “clear and present danger?” John McCain and 92 of his cohorts seem to feel that they have answered that question with the passage of S. 1867 and the infamous Section 1301 of the National Defense Authorization Act. Diane Feinstein even wrote an amendment to ensure that there was a provision in this section that it did not apply to American citizens. She voted on it even though her amendment failed. The gist of this, as you may have read, is that the military now has the authority to round up “dissidents” and place them in Gitmo and other foreign prisons to silence them.

Apparently our own gulags are too full of those damn pot smokers!

So what constitutes a “clear and present danger?” Is it the gal with the peace sticker on her car? Certainly a person with a pocket Constitution and a Ron Paul sticker is suspect. Are you “supporting terror” and “not supporting our troops” or aiding the enemy if you speak out against the war? I suppose that you can add me to that list because I speak out against the war precisely because I support the troops. I object to dumping a trillion dollars into a war which killed and dismembered thousands of our dedicated young people with no clear objective to achieve. It is the same process we used on our Vietnam veterans who served their country and returned to be spat upon and to be told that they are really not sick.

Even Discover Magazine used space—best served to teach us the grandeur of evolutionary science—to comment on the horrors of S. 1867. Salon is one of the few that are using the Marxists clarion call of, “It’s not that bad.” You may find the opposing view there.

What is interesting is that the case concerns Comrade Schenck—the general secretary of the Socialist Party—who was convicted on three counts of conspiracy. He was distributing pamphlets to drafted men to avoid the draft and stay out of World War I. I suppose, now, we know where the Marxist of the sixties got the idea to “burn their draft cards.”

Now those Marxists form the core of the usurped “Democratic Party” and the Southern Poverty Law Center. They are now using this “clear and present danger” theory to attack anyone who mentions the Constitution and that they have rights under the Bill of Rights. They attack anyone who speak out against the intrusion on our rights. Especially anyone who knows the truth about the Second Amendment. They have attacked the “TEA party” movement as terrorists and the Oathkeepers who do not advocate violence or that people stay out of the military or police—only that they remember their oath to the Constitution.

It seems strange that this decision seems to have come full circle. From applying these principles to those who were advocating violations of the Constitution to those who are defending it.

As these Marxist often do, they do not use quotes except those that serve their needs. They do not quote Abraham Lincoln who said, “To sin by silence when they should protest makes cowards of men.” There probably is no text book in school that quotes Thomas Jefferson who said, “No experiment can be more interesting than that we are trying, and which we trust will end in establishing the fact, that man may be governed by reason and truth. Our first objective should therefore be, to leave open to him all the avenues of truth. The most effectual hitherto found, is the freedom of the press. It is, therefore, the first shut up by those who fear the investigation of their actions.”

As the Anti-Federalist Brutus observed, “But remember, when the people once part with power, they can seldom or never resume it again but by force. Many instances can be produced in which the people have voluntarily increased the powers of their rulers; but few, if any, in which rulers have willingly abridged their authority. This is a sufficient reason to induce you to be careful, in the first instance, how you deposit the powers of government.”

Schenck v. United States 249 U.S. 47 (1919)

Now available

The States were used to autonomy. Many were so satisfied with this arrangement that the preferred to remain under the Articles of Confederation. There were many opponents to the new Constitution of the United States known as Anti-Federalists.

The Federalists were those in favor of the new Constitution and its “limited” form of government. They never anticipated their posterity twisting of the words of the Constitution to eliminate the freedoms they had fought for.

But the Anti-Federalists did. “It might be here shewn, that the power in the federal legislative, to raise and support armies at pleasure, as well in peace as in war, and their controul over the militia, tend, not only to a consolidation of the government, but the destruction of liberty,” a writer who wrote as Brutus complained.

Essays on the Constitution was edited by Paul Leicester Ford and published in 1842. It is an intriguing look at the arguments in the newspapers of the time on the subject.

It seems that Rhode Island was not favored among the several States. Mr. Ford added a letter from a writer for Rhode Island.

I edited the work further giving it a new index and adding the works of Brutus which were referred to in the original work, but never added. I added, also, the objections by Elbridge Gerry, Patrick Henry and Colonel George Mason—All of which refused to sign the Constitution.

This book is an interesting view of the battle for ratification of the Constitution and a good read for anyone studying the history of the United States from those who lived it.

SEE ALSO: Anti-federalist are “Political Jesuits” under Satanick influence

Order any of my books from now until April 30 and receive the shipping of a single book free up to $4.99.

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Thomas Jefferson born this day

A wise and frugal government, which shall leave men free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned – this is the sum of good government.

Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.—Brainy Quotes

Thomas Jefferson was born this day in 1743 in Virginia. He was the third president, wrote the initial draft of the Declaration of Independence, promoted the principles of a Republic, and was our first Secretary of State. He was responsible for the Louisiana Purchase which occurred on the 30th of this month in 1803 doubling the size of America overnight.

Enlighten the people, generally, and tyranny and oppressions of body and mind will vanish like spirits at the dawn of day.

Every citizen should be a soldier. This was the case with the Greeks and Romans, and must be that of every free state.

I believe that banking institutions are more dangerous to our liberties than standing armies. If the American people ever allow private banks to control the issue of their currency, first by inflation, then by deflation, the banks and corporations that will grow up around [the banks] will deprive the people of all property until their children wake-up homeless on the continent their fathers conquered. The issuing power should be taken from the banks and restored to the people, to whom it properly belongs.

The spirit of resistance to government is so valuable on certain occasions, that I wish it always to be kept alive.

An honest man can feel no pleasure in the exercise of power over his fellow citizens.

A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be your constant companion of your walks.

I predict future happiness for Americans if they can prevent the government from wasting the labors of the people under the pretense of taking care of them.

It is our duty still to endeavor to avoid war; but if it shall actually take place, no matter by whom brought on, we must defend ourselves. If our house be on fire, without inquiring whether it was fired from within or without, we must try to extinguish it.

Read more: http://www.brainyquote.com/quotes/authors/t/thomas_jefferson_5.html#ixzz1IlGz0SkB

The Government Class Book by Andrew Young was one of the text books used in class rooms throughout America to explain the Constitution. While William Rawles’ A View of the Constitution of the United States of America remains thoroughly a secular law book, Andrew Young explains government at all levels and how they intertwine. His work certainly takes a different view of “the Separation of Church and State.”

This work is also available as a download and can be downloaded by members of Freedom Torch.

$5.95 paperback or $1.50 download.

The Nobel Prize organization said he, “…became one of the most brilliant administrators in American history,…” Why would they say that about him? Because he won the Nobel Peace Prize in 1912 while serving in the United States Senate. He did not receive the award, however, under some pretense that–somehow–destroying the American economy with carbon taxes would–somehow–make the earth a more peaceful place. He got his Nobel Prize the old-fashioned way. He earned it.

Root served as Secretary of War from 1899 to 1904 under Presidents McKinley and progressive Theodore Roosevelt. Roosevelt served as Assistant Secretary of the Navy under Elihu Root. Mr. Root returned to private practice in 1904, but was called upon by Roosevelt in 1905 to assume the duties of the 38th Secretary of State. He served in that role until 1909 when he became a Senator until 1915. He declined another term as Senator and even declined the offer of the Republican party nomination as President.

One of my recommendations is the fictional thriller A Shroud of Evidence. One review states, “This book is intense. So like what it may be like someday. It has a lot of action, suspense and even love. A good read. I recommend it highly. My compliments to the author.” If you have an Amazon, Barnes and Nobles or other online book store account, you can purchase through those sites, but you cannot use the coupon code. 6×9 paperback.

Another pick is Concerning the Militia. This book started out as a research project during the Clinton administration and grew into a reference book. I would guess much of it you already knew or may have seen. Can be purchased in hardcover or paperback through LULU.com only.

The Patriotic Observances Handbook is a guide to the latest patriotic observances and legal Federal Holidays plus a perpetual calendar. This one came about as I searched for information on the LEGAL HOLIDAY National Prayer Day.

2011 Patriot Journal contains some of the information from the Patriotic Observance Handbook. Contains spaces for monthly appointments and journal pages.

My latest work, A Clause for Concern is an examination of the Interstate Commerce Clause of the Constitution by a non-lawyer. Just how far does this Constitutional Power of Congress extend? What of other Constitutional authorities that the Congress has delegated or ignored? I must admit that this one may contain some mistakes, but I reference source material for you to look up.

I also have some reprints of older books such as A View of the Constitution of the United States of America. American Documents Volume II contain the Federalist Papers and American Documents Volume III contain some of the Anti-Federalist Papers. You can see all of the books I have available at my online store.

Please remember, a portion of the proceeds from the sale of these books goes toward buying houses, cars, food, etc.