Privacy under attack? Stop-and-frisk vs. NSA surveillance

As Americans, we each have a guaranteed right to privacy. The online legal site FindLaw explains it this way: “The Fourth Amendment to the U.S. Constitution protects personal privacy, and every citizen's right to be free from unreasonable government intrusion into their persons, homes, businesses, and property – whether through police stops of citizens on the street, arrests, or searches of homes and businesses.”

That seems plain enough, but how one interprets the word “unreasonable” provides ample opportunity for mischief, as well as for good law enforcement.

As for good law enforcement, New York City Mayor Michael Bloomberg has credited the City’s stop-and-frisk policy with helping drive crime to record lows since the policing policy was implemented in 1994, with the murder rate falling by an astounding 82 percent by 2009.

New York’s stop-and-frisk policy seeks to prevent crime before it happens by deploying officers with pinpoint precision to critical street segments in high-crime areas where they interact with individuals displaying suspicious behavior: they approach, question, and sometimes frisk the individuals. That practice has led to fewer people, such as members of street gangs, risking arrest by carrying a weapon on their person, and with fewer gang bangers carrying weapons, there are fewer spur-of-the-moment shootings in New York, and correspondingly fewer deaths.

You might think that, given the obvious level of success in reducing the murder rate in the Big Apple, such a policy would fall outside the Fourth Amendment’s proscription against “unreasonable” searches. But you would be wrong, according to U.S. District Judge Shira Scheindlin, who believes that the policy indeed does violate the Fourth Amendment protection.

Mayor Bloomberg believes that the judge's decision will cause a reduction in the use of stop-and-frisk, which would reverse crime reductions and make his city a more dangerous place. And data indicates he is correct. In 2011, guns were used in 61 percent of all homicides, but in black neighborhoods 86 percent of young black males died from gunfire. Stop-and-frisk reduced the total number of deaths by reducing the number of guns on the streets.

The challenge to the policy arose because officers stop minority residents at a rate disproportionate to their number in the general population. But those stops are not disproportionate to the minority resident population in the crime-ridden neighborhoods or disproportionate to the number of crimes minorities commit in those neighborhoods.

As we have seen recently, there is the possibility that authorities may lose perspective and become abusive in the use of policies like this one, but supervisors are charged to competently manage their operation. And due to the depths of its crime problem when the policy was implemented, New York police applied stop-and-frisk more aggressively than other cities. But whether or not the City is too aggressive ought not be decided without considering its unique circumstances and surprising rate of success in reducing murders.

An opposite approach to systematically and thoughtfully targeting areas where crimes mostly occur and populations that most often commit them like New York City is doing is the blanket, indiscriminate, suspicion-less spying on telephone, email and other private communications and activities of millions of Americans by the National Security Agency.

The government’s spying on Americans is so egregious – eavesdroppers broke privacy rules or overstepped their legal authority thousands of times every year – it’s no wonder the administration wants to arrest and try Edward Snowden for making the information about its spying public.

Where New York police might appear to have been over-aggressive in implementing stop-and-frisk, the federal government’s policy itself is over-aggressive by design. Surely, observers familiar with the Fourth Amendment’s restrictions on searches would be unable to conclude anything other than that NSA spying is precisely why there is a Fourth Amendment.

As reported in The Washington Times, “A Top Secret internal NSA audit, leaked by Mr. Snowden to freelance journalist Barton Gellman earlier this summer and published online by The Washington Post Thursday night shows that, in the 12 months prior to May 2012, there were 2,776 incidents of ‘unauthorized collection, storage, access to or distribution of legally protected communications’ — those between Americans or foreigners legally in the United States.”

“Most were unintended,” according to The Post. “Many involved failures of due diligence or violations of standard operating procedure.” Even if the problems were unintended, sloppiness certainly is no excuse: The infringements are no less wrong, no less a breach of individual privacy, and no less intolerable.

The larger the scope of a program, the greater the chance that something will go wrong, and the more opportunities there are for something to go wrong. Congressman Peter King (R-NY) defends the program, saying that the situation is being blown out of proportion, that the rate of error is miniscule.

Maybe so; however, since the NSA program seeks to find a few fake grains of sand on a beach, and involves millions upon millions of records. For every million records, ten thousand mistakes can be made, affecting the privacy of ten thousand Americans, and the success rate is 99 percent.

Even if such gargantuan programs are run efficiently and competently, they are examples of unjustified government excess, and should not be allowed.

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Congress must address the serious immigration problem. But first …

Commentary by James Shott

When illegal immigration is the subject, a large faction keeps saying that immigrants contributed greatly to building America into the greatest nation on Earth, and that we should therefore give all those illegals citizenship or some sort of legal status. And it is true that smart, dedicated, hard-working people who came here for a better life made tremendous contributions to the American success story.

But those people came here the right way, by following immigration procedures. Right now, there are some 4.5 million people following in their footsteps waiting to come to America legally.

Currently, however, there are some 11 million people inside our borders who did not come here the proper way. About 40 percent of them are foreigners who arrived legally, frequently on tourist Visas, and simply didn’t leave when they were supposed to.

Most of the other 7 million illegals are low-wage workers and their families who sneaked over the southern border, and even though they did not enter the country honorably by obeying immigration laws are people who are here for honorable purposes. And then there are the punks and thugs bent on committing vicious crimes, including murder, against American citizens.

For every 100 actual American citizens there are roughly 3 people residing in the country illegally, and that is a huge problem.

Actually, there are two separate problems: One problem is what do we do with the people here illegally, and the second, and most important, is how do we remedy the circumstances that allowed this intolerable situation to develop so that it never happens again?

Our immigration system has been both neglected and mismanaged, and as a result the country has endured substantial harm. This situation has been the genesis of frequent and strong calls to reform the immigration system. But the immigration system is not what failed; the people in positions to competently operate it and enforce the laws have failed – and in some cases, refused – to do their jobs.

So, the question is: What do we do about the fact that we have 11 million illegals now in the country?

Perhaps past history will be a good guide as to how we should proceed. What the bipartisan US Senate “Gang of Eight” is proposing today is very similar to what was done in the 1986 amnesty when Ronald Reagan was President.

According to Mr. Reagan’s Attorney General, Edwin Meese, writing in the Heritage Foundation’s “The Foundry”: “The path to citizenship was not automatic. Immigrants had to pay application fees, learn to speak English, understand American civics, pass a medical exam, and register for military selective service. Those with convictions for a felony or three misdemeanors were ineligible.” That is quite similar to the “Gang of Eight’s” idea.

When the Immigration Reform and Control Act (IRCA) of 1986 was enacted, there were approximately 5 million illegal aliens in the country, and about 2.7 million of them benefitted from the IRCA. What has happened since then is that the number of illegal aliens has more than doubled.

What went wrong after that compassionate act to grant legal status to those illegal aliens that caused not a decrease in the number of illegals, but a dramatic increase?

“Well, one reason is that everything else the 1986 bill promised—from border security to law enforcement—was to come later,” Mr. Meese said. “It never did. Only amnesty prevailed, and that encouraged more illegal immigration.” Had we done all that the IRCA required, we likely would not have the problem we have today.

In fact, Mr. Meese writes, the failure of the federal government to implement all of the elements of the IRCA to protect the nation from people entering illegally in the years after its passage caused Mr. Reagan to regard the amnesty as the greatest mistake of his administration.

Now that we see what happened after 1986 when we failed to prevent people illegally entering the country, and this time we have to make sure that does not happen again. We therefore have to yield the strong demand for securing the borders and putting improved control programs in place before doing anything to provide legal status of any kind to any illegal alien.

We have to become more sensible and less ruled by compassionate impulses. The country and the states cannot afford amnesty for 11 million illegal immigrants, or for half that number, no matter how nice they may be.

What must happen first is to do whatever is necessary to secure the borders. After that – but only after that – whatever steps we take must protect the interests of the United States before considering the interests of illegal aliens. And we must honor the 4.5 million who are waiting to come to America the proper way before helping illegals.

If you steal food because you are hungry, you have a good reason, but you still broke the law. If you want a better life and sneak into a country that offers promise for a better life, you have a good reason, but you still have done something wrong.

We must not endorse wrongdoing by rewarding it.

Cross-posted from Observations

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"Living wage" mentality reflects misunderstanding of business reality

Fast food workers in seven cities were on strike last week demanding a "living wage" of $15 an hour, more than twice the $7.25 they currently make. Empathy aside, this expectation is a fantasy.

Every job has a value, but it is based not on what the person who has the job thinks it should be worth, or what sympathetic observers think it should be worth, but on its role in the business.

How important is the job to the business, compared to other jobs? Are other people who can do the job a scarce commodity, or are there thousands of them? Some jobs require substantial training, while others do not, and individuals with the required training deserve higher pay than those without training. Minimum wage jobs in the fast food industry require no formal training; the worker can learn on the job, and while the worker is learning to do the job satisfactorily, the boss endures lower-than-necessary productivity.

Who exactly works for the minimum wage? These jobs are entry-level work intended for people just getting started in the workaday world, like students trying to earn a little money while pursuing their education, or people with little or no skills or experience looking to get some skill and experience. About half of the 1.6 million minimum wage workers are under 25 years of age. The minimum wage is not intended to be, and cannot be, a “living wage.”

The minimum wage is, indeed, a low wage, but most of those workers get a raise in less than a year, and there are fewer of them today than in the past. The number of people making at or under the minimum wage today is 28 per 1,000 wage and salary workers, while in 1976 there were 79 per 1,000 wage and salary workers.

Most employers want the best workers they can find, so if most workers produce 10 of something an hour and Joe can produce 12 an hour, or if Mary’s work is of higher quality than other employees, the boss is likely to give them a raise to keep them on staff.

For people in minimum wage jobs with few or no skills, demanding their salary be doubled to a "living wage" is somewhat akin to high school students demanding they be given a college diploma. And anyone earning minimum wage that is unhappy with it can go look for a better-paying job. If they can't find one, do their best at the current job, and get some training that will qualify them for something better.

An organization calling itself Socialist Alternative illustrates graphically the failure of a “living wage" minimum wage in an article titled "Profit is The Unpaid Labor of Workers."

"Hypothetically, lets assume that our job pays $7.50 an hour and our boss wants us to work for twenty hours," the article says. "At $7.50 an hour for twenty hours, that’s a total of $150. In that same period of time, however, the work we do will probably make $300, $400, or $1000 worth of pizza."

And here's where it gets good: "What does this mean? Just for arguments sake, lets assume we only create $300 worth of pizza. After our boss gives us $150 for our week’s worth of work – meaning our own labor essentially pays our wage – he is left with an additional $150 that he did not work for."

There’s a brilliant bit of insight hidden in that paragraph: "our own labor essentially pays our wage." To the socialist mentality, the only cost of running the pizza parlor is what the boss pays the pizza maker. Everything else – flour, sauce, pepperoni, cheese, insurance, rent/mortgage, electricity, water, sewage, trash pickup, taxes, fees, etc. – the boss apparently gets for nothing, and the money collected for the pizza that is not paid to the pizza maker is ill-gotten gains.

The "living wage" strikers similarly do not understand business, and what happens when wages go up. Raising the minimum wage requires a commensurate raise in all wages, to avoid causing strife among the other workers, and that means price increases that make the business less competitive. That could lead to staff cutbacks or ultimately closing the business.

The strikers and the socialists fail to understand and appreciate the investments of the owner(s), who may have mortgaged their home to finance the business, and managers of larger businesses, who usually have spent years in training and working to get where they are, perhaps starting as a minimum wage employee themselves.

Owners get whatever is left over after everyone else – employees, venders, lenders, taxes, etc. – have been paid. Often, particularly in the beginning or during hard economic times, that is little or nothing. And, few employees work as hard as the owner of a small business, and particularly a new business, yet the Socialist Alternative begrudges them making a decent return on their investment of capital and time.

It’s easy to criticize the boss from the sidelines. The best course for these critics would be their forced entry into the business owner’s world. At their own expense, of course. They would undoubtedly see things differently in short order.

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We must take a serious look at our laws and how they are enforced

Most people are for law and order, and most obey the laws that keep society functioning. And most have great respect for the men and women who have the sometimes-dangerous job of enforcing those laws.

That said, some laws are just plain dumb and should be done away with, and what is more important, there are so many laws, rules and regulations today that no one can know all the decrees from the federal, state and local governments that affect him or her, and therefore it is impossible to obey them all. This over-regulated environment puts each of us in the position of likely being in violation of one or more of them at any given moment.

What's worse than so many decrees from so many sources, however, is what seems to be a growing tendency of law enforcement agencies at all levels to imagine that even tiny infractions warrant the most dramatic responses.

Case in point: After making a purchase at a Charlottesville, Va. grocery store one night, a 20-year-old University of Virginia student and two roommates were approached in their car by a group of six men and one woman in street clothes. "They were showing unidentifiable badges after they approached us, but we became frightened, as they were not in anything close to a uniform," she recalled in a written account of the incident.

Police say one of the group jumped on the hood of her car. The girl said one drew a gun, and they tried to break out car windows. Unsure who they were, the girl tried to flee the dark parking lot and called 911. Given the circumstances and stories of people being assaulted by phony police officers, who could blame her?

It turned out to be a squad of plainclothes state Alcoholic Beverage Control officers who suspected the girl had purchased beer in the store – she hadn’t – and was under-age. She spent the night in jail as a result.

Question: Who at the ABC thought this procedure actually made sense? Is it reasonable for a squad of plainclothes agents to approach three female college students in a dark parking lot, fail to adequately identify themselves, point a gun at them, jump on their car and try to break out the windows because they think one of them had bought beer that she might not be old enough to purchase?

Prosecutors dropped charges against the young woman, describing her as having panicked at the sight of plainclothes agents who approached her and her roommates.

Case 2: When the Leander, Texas police wanted to serve a warrant on Bradly Simpson, they sent officers to his home. When no one responded to the knock on the front door, a couple of officers walked around the side of the house toward the back yard whereupon they saw two German Shepards coming toward them. One officer pulled his gun and fired three shots. The police said the dog was growling and aggressively coming at them. Fortunately, the officer’s aim was not good and only one of the dogs was hit, but only wounded.

After that spectacle, the police were unable to serve the warrant because they were at the wrong address, and in the wrong neighborhood. Worse than that, not far from where the dog was shot the home owners’ terminally-ill six year-old grandchild was playing.

Worse, yet, the home owners said neither dog was aggressive, that they were merely curious about who was visiting their home, and had never behaved the way the police claimed. And, as it turns out, the lady of the house is a professional dog trainer, and therefore knows about dog behavior, and furthermore noted that there are routinely customers visiting her home, so strangers don’t spook her dogs.

And what heinous crime prompted the police to go to Mr. Simpson’s home to serve the warrant? He had an expired vehicle registration.

Leander police officials say what happened was "an unfortunate accident." Wrong: What happened is that the police screwed up.

The number of rogue law enforcement personnel that intentionally abuse their authority and position is surely very small. Nevertheless, instances of over-aggressive law enforcement action and plain dumb mistakes like these are indefensible and intolerable, and there appears to be a growing attitude toward over-aggressive behavior.  

To maintain the public trust and respect government and law enforcement are going to have to stop doing stupid and dangerous things like these examples, and even worse incidents that have caused serious injury and even death for innocent citizens.

Solutions? Do we really need so many law enforcement officers that seven of them can spend nights sitting around in one store parking lot waiting to catch an under-age person buying beer? Does an expired registration really justify armed police visiting the vehicle owner’s home?

What about accountability? Officials that exercise bad judgment or act rashly must be disciplined, encouraging them to carefully consider how to properly and safely do their jobs, and also demonstrating that public officials really take seriously their duty to adequately serve the people they work for.

Something must be done, and the sooner, the better.

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