Originally posted from 05-16-04 to 05-23-04
Show and Tell Me Everything
by Lady Liberty

It likely comes as no real surprise to anybody that some of my friends consider me the "go to" person whenever some question of civil liberties arises. So when the phone rang last week and a friend told me he needed my opinion on a matter of rights, I was ready to tell him what I knew, or to steer him in the direction of an appropriate web site for more information. But every time I think I'm prepared, it turns out that the forces of authority have gone just a little further than I could have expected, and I must overcome my disgust just to deal with some matter that should never have become an issue in the first place.

My friend has a couple of dogs. They're friendly and gregarious animals, so it made perfect sense that a local teacher would think they could play part of a lesson plan that would delight the average second grader. Because the dogs like that sort of thing, and because my friend is a nice guy, he agreed to bring the dogs in to the school for an hour or so one day. But upon his agreement, he was advised that he'd have to undergo a criminal background check and provide his fingerprints to the local sheriff accordingly. And that's where he balked.

"Why do they need my fingerprints?" he asked. Well, the short answer is to facilitate the background check.

"But why do they need to do a background check?" he wanted to know.

I'm well aware that there are some professions that do require background checks. Whether for good or for ill (I'm frankly inclined toward the latter), those who deal with children extensively are among those professions. The elementary school teacher who had asked about the dogs, for example, would have undergone such a background check before being hired. But my friend was only going to be in the school building on a one-time basis and for a brief while, and would be monitored by the teacher the entire time he was there! So why did they need to do a background check?

I don't often deal with schools, day care centers, or the like, and so I wasn't terribly conversant with state law where this kind of thing is concerned. "Hold on," I told my friend. "Let me find out."

Another friend of mine happens to be a member of one of the local school boards, so I asked him about the requirements for background checks. He said that all of the schools do them on permanent employees, and that they're also required to conduct investigations into regular volunteers (such as coaches) who could have one-on-one contact with students in an unsupervised setting. I told him why I was asking, and he advised that state law only provides for the minimum requirements, and that individual schools and districts could go beyond those requirements if they so chose, except in matters where they were expressly forbidden from doing so.

"The school you're talking about has gone a little far, I think," he said. But it was clear from his explanation that, since the background check requirement for anyone setting foot in the classroom for any period of time wasn't prohibited, it was perfectly acceptable for the school to mandate those checks.

My friend still wanted to know, "Do I have to do this?"

No, he doesn't. But the school may be unwilling to make any exceptions to the rules it has decided to enforce. The question isn't whether or not he has to do this, but whether or not it's worth doing this.

"Well, once the background check is done, it's done, right?"

Yes and no. Once it's done, his fingerprints and the results of his background check will remain in the state's criminal database - and later be appended to federal databases (such as the FBI's fingerprint database and potentially the nominally civilian-operated MATRIX database). The fact that he's not a criminal, nor is he charged with or even suspected of a crime, has nothing to do with whether or not his personal data will be held for potential future identification purposes, just like that of real criminals.

Of course, it didn't take long for the most damaging possibility of all to strike him: "What if there's another guy with my same name? What if my fingerprints or something are just similar enough to some that were taken from a crime scene? What then?"

Well, in that case, he's in a good deal of trouble, at least for awhile. Government databases are notoriously error-prone, and getting such errors corrected is often nigh unto impossible. Much as in the case of perfectly innocent Americans who have the same name as someone else who happens to be on the government's "Don't Fly List," my friend could conceivably find himself detained and questioned on an occasional basis, some occasions of which might not be very pleasant. (Think it couldn't happen? It already has. A Portland, Oregon lawyer was detained in connection with the terrorist train bombings in Spain after his fingerprints were allegedly found; he was later released after authorities in Spain found the fingerprints were actually those of an Algerian. Despite his release, the lawyer remains under surveillance.)

"Would you do it?" he wanted to know.

"Not in a million years," I told him.

"Okay," he said. "Thanks for your advice."

I'm always glad to help with this kind of thing in any way I can, and I told him so. I also referred him to a web site where there are some very nicely written arguments in favor of privacy, and why capitulating to the demands of authorities - even when we don't have anything to hide - is a bad idea. (For those of you who also have an interest, I'm talking about the CASPIAN web site.)

"Man," he said, just before we ended our conversation. "The teacher's gonna be really mad at me if I don't do this."

Maybe. But nobody ever said that maintaining privacy, dignity, self-respect, or liberty is necessarily easy. And the fact that a decent, law-abiding guy with a couple of friendly dogs won't show up for a second-grade class - because doing so would mean sacrificing some of his most basic principles, not to mention abrogating some of his unalienable rights - might be a far more important lesson for the kids to learn anyway. It's just too bad more adults don't get it.

Originally posted from 03-28-04 to 04-04-04
Slippery Frogs and the US Supreme Court
by Lady Liberty

It's impossible to be around any civil liberties movement for long and not hear the words "slippery slope." The phrase references the fact that, once you start down a slick hillside, it's very difficult not to slide all the rest of the way down. And that, of course, illustrates the historically proved notion that once some small infringement of a right is made, it's all that much easier to continue the process until a right is completely usurped.

Another commonly used adage among those concerned for civil rights involves a frog in a pot of boiling water. The claim is that, if you put a frog in a pot of hot water, he'll immediately jump out. On the other hand, if you put a frog in a pot of cold water and then slowly heat it, he'll sit there calmly until he cooks to death. The relevant idea here is that we become so used to small infringements of our rights that, by the time we notice anything has happened, a right is already well on its way to being gone, perhaps irreversibly so.

The first step down that slick hillside, or the first few degrees in increased water temperature, are often relatively harmless. It's easy to note that there's a potential to fall or to cook, but we promise that we'll be very careful and so it's okay. At least, so go some of the arguments in the case of Dudley Hiibel, a Nevada man whose fight against a state law was heard in the US Supreme Court on March 22.

Hiibel v. Sixth Judicial District Court of Nevada hinges on whether or not an individual must provide proof of identification on request by authorities. Mr. Hiibel says that doing so is an infringement of his right to remain silent. His attorney says that such a demand also goes against his client's Fourth Amendment rights protecting him from an unwarranted search. Attorneys for the government, however, insist that providing your name to a law enforcement officer is essentially a neutral act and is not incriminating.

Several participants in the Hiibel matter cite Terry v. Ohio as a relevant precedent. That's a 1968 traffic stop case where it was ruled that police could frisk someone for weapons if they thought the person they were questioning might be a danger to them. That same case, however, also resulted in a decision that specifically said the person involved could be questioned but that he wasn't required to answer those questions. It's the Nevada law that Mr. Hiibel is fighting that took the so-called "Terry Stop" further by saying you absolutely must provide your name to police if asked.

One Supreme Court Justice (Ruth Bader Ginsburg) is quoted in an MSN article as wondering if there aren't "other facts about oneself...so neutral that the state might also demand them." She suggested perhaps such things as phone numbers or e-mail addresses might fit the description, illustrating in a nutshell the "slippery slope" potential inherent in the Hiibel case. But Justice Antonin Scalia said that he couldn't imagine "any responsible citizen would object to giving his name."

When you get right down to it, I don't personally see any problem with giving my name to a law enforcement officer when asked, either. The problem is, instead, the probability that my name won't be enough. And if I give the name, then why would I withhold an address, a phone number, or a place of employment? Why wouldn't I be willing to give out the names of family members or tell the nice policeman where a friend lives? None of these things are necessarily bad things, nor do they imply any wrongdoing on my part. But the more information we freely give up, the more information will be demanded of us, and probably demanded at some near-future time by force of law.

It will happen if we don't nip this tendency in the bud. Just a few days after the Hiibel arguments were offered in the Supreme Court, Terry v. Ohio was almost certainly the precedent in a Fifth Circuit Court decision that gives police new power in searches. The details, published by the Houston Chronicle, are those the ACLU says is "the latest rollback of safeguards to protect the people from being at the mercy of a police state." The Court ruled that, in any instance where police believe there is a potential risk, the authorities "do not need an arrest or search warrant to conduct a swift sweep of private property to ensure their safety." In other words, pretty much as they please (one inarguable point here is that the police could conceivably be at some risk any time they approach an unknown residence).

In the matter of Dudley Hiibel, some believe that a decision that favors the State of Nevada could very well be the impetus needed toward the establishment of a National ID card. At the very least, our Fifth Amendment rights are seriously threatened (our Fourth Amendment rights are all but gone already). Seeing how the Terry v. Ohio case has evolved, there's little doubt that those people could be right. Our best hope to avoid such a fate via the inevitable slippery slope is that the Supreme Court rule in Mr. Hiibel's favor on either of the valid Fourth or Fifth Amendment grounds cited by his attorneys.

Immediately before his Supreme Court hearing, Dudley Hiibel told me that he's optimistic. While I wish him the best - and certainly hope for the best for the sake of all of us! - I'm not so sure everything will turn out in favor of the Constitution in the end. I don't know about the rest of you, but I'm personally feeling mighty warm.