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Rights - Essay from Newsletter 119

Thoughts on Independence Day


The fourth came and went along with my traditional revisiting of the Declaration of Independence and Fredrick Douglass’s speech, “What to a slave is the Fourth of July.”

This year I added what may become a new tradition of rewatching Hamilton.

I thought of all of the people who talk about their rights to “life, liberty, and the pursuit of happiness.”

They often forget the “pursuit of” part and, particularly in this pandemic world, walk around as if they are entitled to happiness.

Many also assure me that this comes from the Constitution and say “Oh yeah” when I remind them it’s from the Declaration.

I got stuck on the word “inalienable”. It’s one of those words I thought I knew (and did) but where did it come from?

So I looked up “alienable” and found that it refers to something that can be sold or transferred to someone else.

So “inalienable” is not that.

These rights are ours and can’t be taken from us.

Except, because they are in the Declaration and not the Contitution they can be and are being taken from us.

You’d think that originalists would look to the Declaration as it is signed by these Founding fathers whose intent they (claim to) seek to understand.

Fair warnings

There were a lot of articles during BLM reminding us to lock our phone when we’re out in such a way that a face ID isn’t sufficient.

With iPhone we can do this by turning the phone off or long pressing the power button to lock it.

The theory is police can unlock our phones by aiming it at our face but they can’t compel us to use a password to unlock it.

Shouldn’t the police have to apprise us of these rights when asking us to unlock our phone?

“I’m asking that you unlock your phone using the code but am telling you that you aren’t legally obligated to do so.”

That feels like it should be the law.

Actually, buried in all of the awful news on decisions made by the Supreme Court in the last two weeks was the decision to reverse Miranda.

You know those rights that police always say on tv - “You have the right to remain silent. Everything you say can and will be used against you in a court of law. You have the right to an attorney. If you can’t afford an attorney one will be provided for you.”

The Supreme Court ruled that you still have those rights - but the police don’t have to tell you that you have them.

If you are too tired or fearful to remember your rights and tell or show the police things you’d rather you hadn’t, “everything you say can and will be used against you in a court of law.”

We’re at a time when your Miranda rights should be expanding to apprise you of your rights with regard to your phone and other privacy issues that have arisen since Miranda.

Instead, we’re moving backwards.

Nowhere to be found

I first met Kim at a workshop she and her boss put on for Case’s Center for Professional Ethics more than thirty years ago.

The topic was digital theft.

In the old days, if you were going to steal music you would have to take a physical object from its rightful owner - a record store, a friend, whatever.

Then it became cheaper to make recordings using cassette, eight track, or reel-to-reel so I could tape a friend’s record.

This is more complicated. I’m stealing a sale so someone is losing money.

Then we get computers and digital storage and easy online sharing and we can share music without any significant loss in quality at a scale that actually can cost music companies real money.

The ethical question is that if I steal something from you but you don’t lose anything - is it still stealing?

The more important point as we watch our rights erode as the current court alternates between lecturing us on when we must listen to the founding fathers and when we must somehow broaden the context (and never in a consistent way - though certainly in a predictable way) - what happens to privacy.

Our phones know where we’ve been, what we’ve searched for, who we connect with, … Our phones know things about us that we don’t even know because it can make connections based on the large amount of data we give it.

This court will certainly weaken our rights with respect to that data.

They will certainly welcome challenges to Apple saying “no” to providing back doors for law enforcement and then they will grant some - but not all - entities the right to use those back doors in ways we would never authorize.

I’m angry at the Dodds decision and all that it implies about the decisions to come.

Dodds was already enough for me to not celebrate Independence on the Fourth.

But Miranda? Who rules that police shouldn’t have to tell you your rights?

Somehow it feels as if life, liberty, and the pursuit of happiness may soon become alienable.

Essay from Dim Sum Thinking Newsletter 119. Read the rest of the Newsletter or subscribe

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