I started this post to talk about: Steptoe Cyberlaw Podcast, Episode 65: An Interview with Bruce Schneier by Steward Baker.
From the post:
Episode 65 would be ugly if it weren’t so much fun. Our guest is Bruce Schneier, cryptographer, computer science and privacy guru, and author of the best-selling Data and Goliath – a book I annotated every few pages of with the words, “Bruce, you can’t possibly really believe this.” And that’s pretty much how the interview goes, as Bruce and I mix it up over hackbacks, whether everyone but government should be allowed to use Big Data tools, Edward Snowden, whether “mass surveillance” has value in fighting terrorism, and whether damaging cyberattacks are really infrequent and hard to attribute. We disagree mightily – and with civility.
…
The interviewer, Steward Baker, spent 3 1/2 years at the Department of Homeland Security and formerly as general counsel of the National Security Agency.
The interview with Bruce proper starts at time mark 28:00.
In an admittedly hypothetical and strained case, Baker responds to Schneier’s argument for due process by saying:
“there are times when you don’t have time for due process…” (31:44)
The hypothetical involves following a thief and breaking into their server to retrieve something they have stolen. I know, problematic since digital theft doesn’t usually leave you without a copy, but that is how it was posed. Bruce argues, quite correctly, that there is no determination that a theft occurred, who the thief might be or what damage you will do in breaking into the server.
I find it deeply disturbing that Baker’s views may reflect those of the Department of Homeland Security, that:
“there are times when you don’t have time for due process…” (31:44)
I find it quite remarkable that anyone practicing law in the United States could trivialize due process so easily.
When convicted criminals are released due to violation of their due process rights, it isn’t that a court has found them not guilty. There may be little or no practical doubt about their guilt but as part of the social contract that is the Constitution, we have agreed that an absence of due process trumps all other considerations, including factual ones.
What Baker forgets is that he and/or the Department of Homeland Security aren’t the only ones who can decide to set aside the social contract that includes due process. What if a person decides that the election process has erred and there are too few intelligent members of Congress? Such a person could (illegally) create vacancies in Congress to give the electorate another chance.
Their argument would be the same one that Baker makes, the election cycle takes too long. Too many crises need resolution by a competent congress.
Their only difference with Baker would be one of degree rather than kind. Baker and company should be very careful about callously abandoning inconvenient parts of the Constitution. It sets a bad precedent for others who may do the same thing.