Criminal Negligence - When Facts and Laws Part Ways
"Damnant quod non intelligunt." It's a Latin phrase, meaning, "They condemn what they do not understand." A simple substitution of "legislate" for "condemn", and it readily applies to those currently crafting our nation's laws, many of which seem to involve matters completely foreign and confusing to the very people writing - and passionately arguing for - the legislation.
This past week, FBI Director James Comey pushed the House Appropriations Committee to ban any encryption lacking a back door for government agencies to use in accessing the data it protects. The committee members kept deferring to the experience and wisdom of Representative John Carter, the chairman of the Homeland Security subcommittee in charge of funding cybersecurity. Yet "Carter prefaced his comments about cybersecurity and encryption by literally saying 'I don’t know anything about this stuff.'"
Follow that trail for a second. A government agency shown to target those earning our Executive branch's disfavor is seeking to prevent you from keeping your communications private, and is appealing to legislators relying on the advice of an "authority" who freely admits he knows nothing about the subject. This is the thread from which your right to privacy hangs.
Yesterday, Senator Dianne Feinstein issued a statement expressing alarm that people could find instructions on bomb making on the Internet. She declared, "These documents are not, in my view, protected by the First Amendment and should be removed from the Internet." Not only does this fly in the face of prior Supreme Court rulings, it's also very nearly technically impossible to "erase the Internet."
What is not impossible is for someone wielding equal parts technical ignorance, moral outrage, and political clout to misuse the FCC's new regulatory power over the Internet to penalize any US-based outlet distributing such material "unprotected, in her view." Or perhaps to criminalize the electronic possession of such material, forcing ISPs to turn over those downloading it, putting them on par with purveyors of online child pornography.
It's not as though we haven't set the precedents, and built the framework.
We could also look at the efforts of several states' legislatures to ban "Palcohol," a powdered alcohol product approved by the Alcohol and Tobacco Tax and Trade Bureau. It isn't even available on the market yet but apparently it is mysterious and scary enough to be worthy of bans in five states, with others considering following suit. In Colorado, the justification put forth by the Republican sponsor of the ban bill, JoAnn Windholz, was that it is "prudent for states to ban the product until they know how it can affect people.”
Again, a quick paraphrase of that. "Even though this is a dehydrated version of an existing legal product and has been approved by the Federal government, we haven't seen it before so we're going to make it illegal."
And, of course, sometimes it isn't just ignorance and fear that drives laws. Sometimes, it's agenda-driven deception, such as the recent effort by the Federal regulators at the ATF to ban commonly-used rifle ammunition. As we mentioned at the time, the ban failed an initial test of logic since it didn't even meet the physical requirements under the law cited. It also failed the moral outrage test when the Fraternal Order of Police countered the argument that the ban was intended to "protect law enforcement" by issuing a statement declaring that the ammunition posed no problem for law enforcement. Yet Democrat lawmakers are penning angry letters, demanding that the ban proceed and even be expanded.
When legislation is passed it is the law and it is binding even if it is based on lies, mistaken perceptions, knee-jerk reactions, or just plain ignorance. And "we, the people" face arrest, financial loss, and imprisonment for breaking those laws, whether we do so willfully or inadvertently. We risk the ruin of our reputations, and the dire downstream effects, in terms of loss of employment opportunities and Constitutional rights, of being made into criminals because of the cavalier manner in which the laws are passed.
If ignorance cannot be our defense against violating law, it cannot be accepted when authoring it. We cannot simply "leave it to the pros" and assume that they are making informed, rational decisions, because the record shows otherwise. Stay informed about such legislation before it is passed. Be skeptical of claims of expertise and assurances of "the wisdom of experience." Correct ignorance and condemn outright dishonesty, openly and publicly, wherever you find it.
We must remain informed and involved - or we will not remain free.