Articles published in the Richland County Bar Association's Richbar News

Expect the Unexpected

August 14, 2013Richbar News Articles

A 2007 Honda Pilot has a total cargo capacity of 87 cubic feet. That didn’t stop my wife and me from loading it with 115 cubic feet of beach toys (plus three kids). You can load lots of equipment in a car when you don’t care about breaking it (which you don’t when you’re running three hours behind schedule and you’re furious at everyone). Jumping off a ladder makes closing the tailgate easier, too.

My kids don’t know how easy they have it with their DVD’s, iPads, and iPods. God knows what else they have way back in the car. For all I know, they might be grilling paninis back there.

Back in the old days, when my younger sister and I were crammed into the back of my parents’ Audi Fox, our main form of entertainment was patrolling the DMZ/Line of Death demarcating our seats and punishing each other’s incursions. But we did have one thing that my kids don’t — Archie Comics Super Special Digests.

Archie Comics were great – and the Super Special Digests were even better because they were way longer. Like a whole Reader’s Digest full of comics. There was only one problem with Archie Comics. The author/illustrator was extremely religious. Nothing wrong with that, of course, except when juxtaposed with his incredibly curvaceous renderings of Betty and Veronica. So outrageous were they that my sister’s envious Barbie dolls eventually were forced to seek treatment for Body Dysmorphic Disorder.

The result of this dichotomy was that there were two kinds of Archie Comics – the “normal” ones (where Archie invites Veronica to the malt shop) and the “other” ones where Archie invites Veronica to a full immersion baptism. Problem was, the covers of the two comics looked IDENTICAL, and we never knew which kind mom had given us until we were halfway down the road, halfway through the comic, and it was too late.

Sometimes you don’t get what you’re expecting. Kind of like this article. It started light, but you’re halfway through now and it’s suddenly about to turn serious.

Those iPads and cell phones that the kids in the back of the car are clicking and chatting away upon (the same things we do in our work everyday) make a LOT of data.  I’ve talked before about the NSA’s data center in Utah, and what it might be used for.  Well, now we know, don’t we?  Our data is being stored and indexed for some possible later use by our government.

Used how?  We don’t know the answer to that yet.  But we all know how discovery works in litigation: cast as broad a net as possible, find the good stuff, and use it to argue a position. That’s our job, and the process is fair because courts limit the size of our nets and because we are actively opposed by an advocate for the other side on a generally level, public playing field.   But how fair would that process be if one side’s “net” was all-encompassing?  And what if the playing field was not level?  And if the proceedings themselves took place in a “secret” court?  Like the one that reportedly ordered Yahoo to cooperate with the NSA’s PRISM program in 2008. (Yahoo argued that it was an unconstitutional search and seizure and lost).

Speaking of losing things, let me tell you a brief story to lighten things up just a bit. A couple of months ago I was in Chicago, in a cab heading towards O’Hare to catch my plane home. It was already going to be tight, when I realized halfway there that I’d lost my wallet in the hotel. Cab driver gets me back to the hotel. I find my wallet, jump in, and off we speed.

Right through a stop sign. Right past a Chicago Police Officer. Blue lights come on. We pull to a stop at the curb, all thoughts of getting home evaporating like the steam off my hotel coffee. Then something miraculous happens – the officer, who clearly has the cabbie dead to rights and who holds absolute power in this situation – lets the cabbie off with the briefest of warnings. I make my plane and get home to my family.

That’s a wonderful reminder that people with absolute power can be awfully restrained and decent in its exercise. It actually happens every day.  Governments, on the other hand, have a lousy track record with absolute power. Which brings me back to the NSA scandal. What we’ve seen is key pillars of a Constitution that have stood for 225 years erode in a span of less than 12 (and “erode” is too generous a term here because it implies a visible disintegration; “ignored” is more accurate).  We are getting to the point where all we can hope for is that a government, approaching the limits of absolute power, will stay “nice” and not use our data against us if it decides to move the line dividing free-speech dissent from “security threat.”

Whether we choose to accept a continued hope for “nice” as good enough will determine what kind of country those kids in the back of the car inherit. We are supposed to be the ones driving, after all. Well, sorry for pulling an “Archie” on you. Blame my mom.

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