March 1, 2016

Crisis: Apple, California, Hillary Clinton, Israel,  CETA
Sections                                                                     crisis index    

Apple Wins Major Court Victory Against FBI in a Case
     Similar to San Bernardino

California Courts Demand Total Access to Email and
     Social Media Accounts

3. Occupy Hillary Clinton’s Wall Street Speeches
4. Major Leader of the American Jewish Mainstream Does
     180, Calls State of Israel a 'Failure'

5. 'Like Putting Lipstick on a Pig': Changes to CETA Make it
     More Corporate-Friendly Deal

This is a Nederlog of Tuesday, March 1, 2016.

This is a crisis blog. There are 5 items with 5 dotted links: Item 1 is about a recent win of Apple in a court case that is similar to San Bernardino's case; item 2 is about a very sick development of an apparently decent law in California; item 3 is about Hillary Clinton's very special position and her very special rewards by the big American banks; item 4 is about a recent statement by a (former) mainstream Jewish leader; and item 5 is about recent changes to CETA that make it even more fascistic [1].

1. Apple Wins Major Court Victory Against FBI in a Case Similar to San Bernardino

This first item is by Glenn Greenwald and Jenna McLaughlin on The Intercept:

This starts as follows:
Apple scored a major legal victory in its ongoing battle against the FBI on Monday when a federal magistrate judge in New York rejected the U.S. government’s request as part of a drug case to force the company to help it extract data from a locked iPhone. The ruling from U.S. Magistrate Judge James Orenstein was issued as part of the criminal case against Jun Feng, who pleaded guilty in October to drug charges. It is a significant
boost to Apple’s well-publicized campaign to resist the FBI’s similar efforts in the case of the San Bernardino killers.
Yes, though it should also be said that Orenstein is not a major judge.
But his judgement was strong:
Judge Orenstein applied previous legal decisions interpreting the AWA and concluded that the law does not “justif[y] imposing on Apple the obligation to assist the government’s investigation against its will.” In a formulation extremely favorable to Apple, the judge wrote that the key question raised by the government’s request is whether the AWA allows a court “to compel Apple — a private party with no alleged involvement in Feng’s criminal activity — to perform work for the government against its will.”
And Orenstein was perceptive as well:
Perhaps most devastating to the FBI’s case is Orenstein’s recognition that the purpose of the FBI’s request is not simply to obtain evidence in one particular case, but rather to grant the government broad, precedential authority to force Apple and other tech companies to take affirmative technological steps to cooperate with criminal investigations generally.
Quite so. And not only that:
The judge also accused the government of trying to manipulate secret judicial proceedings to obtain powers for itself against Apple that public debate and Congress would never permit. It is, Orenstein wrote, “clear that the government has made the considered decision that it is better off securing such crypto- legislative authority from the courts (in proceedings that had always been, at the time it filed the instant Application, shielded from public scrutiny) rather than taking the chance that open legislative debate might produce a result less to its liking.”
I think that is a correct assessment. And there also was this:
Crucially, the ruling emphasized that “Apple is not ‘thwarting’ anything — it is instead merely declining to offer assistance.” While a party may — or may not — have a moral duty to assist the government in criminal investigations, “nothing in [prior case law] suggests that the ‘duty’ … is legal rather than moral.”
So indeed this was a considerable win.
2. California Courts Demand Total Access to Email and Social Media Accounts

The second item is by Kelly Davis on The Intercept:

This starts as follows:

AS THE FBI and Apple fight a media war over whether the federal government can force the computer company to hack an iPhone, in California a new privacy law is raising questions over how deeply government should be allowed to peer into a convicted criminal’s digital life.

That new law, the California Electronic Communications Privacy Act (CalECPA), requires law enforcement to obtain a warrant before searching a person’s cellphone, laptop, or any digital storage device. At issue is whether the law covers people on probation, parole, and other forms of supervised release who’ve agreed to what’s known as a “Fourth waiver,” a condition that allows law enforcement to search their person and property at any time.

To start with, I notice that (i) the new Californian law does conform to the Fourth Amendment, which is as it shouĺd be, according to me, while (ii) what is at issue here is whether these rights should be extended to "people on probation, parole, and other forms of supervised release who’ve agreed to what’s known as a “Fourth waiver”".

I would say: Of course, but I agree that the
“Fourth waiver" makes the legal situation more complicated.

Here is what "San Diego County prosecutors and Superior Court judges" did do:

CalECPA took effect on January 1, 2016. Three days later, San Diego County prosecutors and Superior Court judges began asking defendants who were eligible for probation to sign a form giving “specific consent” to county probation officers “and/or a law enforcement government entity” to collect information that would be otherwise protected under CalECPA.

The consent form described everything that could be searched and seized:

Call logs, text and voicemail messages, photographs, emails, and social media account contents contained on any device or cloud or internet connected storage owned, operated, or controlled by the defendant, including but not limited to mobile phones, computers, computer hard drives, laptops, gaming consoles, mobile devices, tablets, storage media devices, thumb drives, Micro SD cards, external hard drives, or any other electronic storage devices, by probation and/or a law enforcement entity seeking the information.

The defendant shall also disclose any and all passwords, passcodes, password patterns, fingerprints, or other information required to gain access into any of the aforementioned devices or social media accounts.

In other words, they proceeded as if they were the lawyers for the American
Secret State Police who insisted on having everything a person on probation ever did on any computer, cellphone, laptop etc. etc., all regardless of any crime the person was accused of - and I am using these terms on purpose, for I consider this very, very sick and morally degenerate.

Here is the drug policy director of the Californian ACLU:

Dooley-Sammuli said she was surprised by the expansiveness of the consent waiver. “Anything, anytime, from the beginning of time until after your death is what it suggests in that language.”
Precisely. And here is what these incredibly excessive powers to know absolutely everything on a person on probation were used for:
The majority of defendants were told that there would be broad monitoring of their online lives, despite objections from defense attorneys. In one case, a judge told a pair of young co-defendants — a boyfriend and girlfriend who pleaded guilty to robbery — that their emails, cellphones, and social media accounts would be monitored to make sure they weren’t in contact with each other during their five years’ probation. A young woman convicted of felony DUI was told that her probation officer would be checking her email and social media to make sure she wasn’t drinking. As the judge told the DUI defendant, “Law enforcement needs to monitor your physical as well as electronic world.”
No, it does not. And in fact there is fairly strong evidence:
In 2014, in Riley v. California, the U.S. Supreme Court unanimously held that searching a person’s cellphone during arrest is unconstitutional. The Fourth Amendment allows police to conduct unwarranted searches if they’re part of “a lawful arrest,” but Chief Justice John Roberts rejected the government’s argument that searching a cellphone is no different than searching a wallet, purse, or pack of cigarettes.

“Modern cellphones are not just another technological convenience,” he wrote. “With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”

I mostly agree - I am a bit amazed to find - with Roberts, although I have seen no evidence in the Fourth Amendment that says that it does allow police to conduct unwarranted searches if they’re part of “a lawful arrest”: They still need a warrant according to the Fourth Amendment, though I grant this will be easier to get when they've been arrested.

3. Occupy Hillary Clinton’s Wall Street Speeches

The third item is by Marjorie Cohn on Truthdig and originally on Common Dreams:

This starts as follows:

Hillary Clinton refuses to make public the transcripts of her speeches to big banks, three of which were worth a total of $675,000 to Goldman Sachs. She says she would release the transcripts “if everybody does it, and that includes Republicans.” After all, she complained, “Why is there one standard for me, and not for everybody else?”

As the New York Times editorial board pointed out, “The only different standard here is the one Mrs. Clinton set for herself, by personally earning $11 million in 2014 and the first quarter of 2015 for 51 speeches to banks and other groups and industries.”

And by setting herself up as a presidential candidate: She definitely is not "just anybody", and indeed "just anybody" would never get $11 million dollars for a few speeches.

Then again, I think it is obvious she was being paid these totally insane amounts of money as rewards for the services she and her husband have rendered to the "banks and other groups and industries".

Here is some more on her virtually unique personal position:

Hillary has several super PACs, which have recently donated $25 million to her campaign, $15 million of which came from Wall Street.

Big banks and large contributors don’t give their money away for nothing. They expect that their interests will be well served by those to whom they donate.

Precisely. And they also reward those politicians that have behaved as they desire them to behave, and Hillary and Bill Clinton did do very much for the American banks, for Bill signed the main deregulation acts that made them many billions.

4. Major Leader of the American Jewish Mainstream Does 180, Calls State of Israel a 'Failure'

The fourth item is by David Gordis on AlterNet and originally on Tikkun:

This is here mostly because my father and grandfather suffered a lot in World War II, when both were locked up as "political terrorists" in concentration camps because they resisted the Nazis. (My grandfather was murdered.)

Here is as David Gordis sees it:

Israel’s occupation of the West Bank is nearing a half century in duration. Netanyahu’s “facts on the ground” steps to make a two-state solution impossible are bearing fruit, and there still appears to be no significant opposition to these policies in Israel itself. A number of smaller organizations supporting a two-state solution have emerged, notably J-Street and Americans for Peace Now, but recent steps by the Israeli government to delegitimize these groups are proceeding. The bottom line as I see it: The right has triumphed; the left has been defeated.

The Israel of today is very far from anything I dreamed of and worked for throughout my career. I can clearly remember the day in 1948 when the State of Israel was established.
I think he is right: The Israeli left has been mostly defeated, and the Israel of today is very far from the Israel as was advertised from 1948 till 1968 or so.

Here is some more on his position:

Present-day Israel has discarded the rational, the universal and the visionary. These values have been subordinated to a cruel and oppressive occupation, an emphatic materialism, severe inequalities rivaling the worst in the western world and distorted by a fanatic, obscurantist and fundamentalist religion which encourages the worst behaviors rather than the best.

And most depressing of all for me, is that I see no way out, no way forward that will reverse the current reality. Right-wing control in Israel is stronger and more entrenched than ever.
And here is how the article ends:
So, sadly, after a life and career devoted to Jewish community and Israel, I conclude that in every important way, Israel has failed to realize its promise for me. A noble experiment, but a failure.
This must have been a bitter decision.

'Like Putting Lipstick on a Pig': Changes to CETA Make it More Corporate-Friendly Deal

The fifth item is by Nika Knight on Common Dreams:
This starts as follows:

The Canadian government and the European Commission on Monday announced modifications to their controversial pending trade agreement, apparently intended to appease widespread criticism of the deal—but critics condemn the changes as nothing but "smoke and mirrors."

The trade deal known as the Comprehensive Economic and Trade Agreement (CETA) has drawn heated criticism for its investor-state dispute settlement (ISDS) provisions, which allow investors to sue governments in private, specially-created courts for passing regulations that hurt corporate profits.

As I have said several times now: A "law" that provides major corporations "to sue governments in private, specially-created courts for passing regulations that hurt corporate profits" is a fascistic law, and has been created with just that purpose: [1]

To deny anything any nation's parliament, any nation's government, any nation's judiciary and any nation's inhabitants have decided, simply because these decisions upset the expected profits of multi-national corporations is sick, morally degenerate, completely anti-democratic and extremely authoritarian.

The modifications announced on Monday would alter the arbitration provisions to resemble something closer to what was optimistically described as a "permanent...professional court," in a recent Globe and Mail editorial arguing in favor of the changes.

"The government is presenting this reform to CETA as a 'fairer, more transparent, system,' but it still enshrines corporate rights and enables giant European corporations to sue the Canadian government. Tinkering with the dispute settlement process doesn’t change this fundamental flaw," said Garry Neil, executive director of social action organization the Council of Canadians, in a press statement.

The Canadian government lies. In fact, it made it even more fascistic:

Barlow wrote that the "reforms enshrine extra rights for foreign investors that everyone else—including domestic investors—don't have. They allow foreign corporations to circumvent a country's own courts, giving them special status to challenge laws that apply equally to everyone through a court system exclusively for their use."

Precisely: That is textbook fascism. [1] And here is why the latest changes make it even worse:

Opposition to corporate-friendly trade deals has grown around the world in recent months, and these changes appear to have only incited further critique. Critics contend that the suggestion of more legitimacy is meant to help the EU Parliament pass the controversial deal, but the creation of a permanent private court solely for foreign investors makes the deal an even worse one for the public.

Yes - and do not trust "European politicians". Here is the sum-up:

"Under the pretence of 'breaking from' the old corporate court system known as ISDS, the commission is actually trying to create a permanent court for big business," Dearden stated on Monday. "Far from preventing corporations bringing cases against the British government, this proposal makes it easier for them to do so. While pretending to iron out procedural problems, the commission has created a monster which will become a reality if this treaty goes through.

And that monster is a textbook case of a purely fascistic law that has been expressly created to take away all powers of national governments, national parliaments, national judiciaries and any influence of a nation's inhabitants, on the simple sick and morally degenerate ground that these national powers may upset the expected profits from multi-national corporations.

And if they do upset the expected profits from multi-national corporations, the nation's inhabitants are to pay hundreds of millions or billions to the multi- national corporations in punishment for their national independence, and as a reward for the multi-national corporations. [1]


[1] In fact, this is a copy of Note 1 from January 3, 2016:

The definition of fascism that I use is simply one that is given by the 
American Heritage Dictionary:
"fascism" is defined as "A system of government that exercises a dictatorship of the extreme right, typically through the merging of state and business leadership, together with belligerent nationalism."
This describes both Mussolini's and Hitler's systems, though indeed more might have been added. It also described - very well indeed - the societies that will result from adopting the TPP, TTIP, TiSA and CETA, each of which are secret, even for parliamentarians, so that no one can read them (for which reason one must turn to Wikileaks, were parts have been published), and that simply because each of them is completely FOR a fascist system as has been just defined: The business leadership will determine all; the people will determine nought.

We aren't quite there yet, but that is what I see coming - and its arrival has been prepared for 35 years, though I grant it was mostly furthered without having the word "fascism" in mind, and probably also without the concept:

The rich simply wanted more power, more money and less taxes; they generally like rightist views much better than leftist views; most also are nationalistic; and they generally love the merging of state and business leaderships, knowing this will be advantageous to them.

Then again, if you give the rich what they want, or do not oppose them in what they take, then socially that is the result: A fascist system as defined above.

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