The Logan Act and Democratic Hypocrisy

The media has been up in arms the last week or so over Mike Flynn’s supposedly intercepted phone call with the Russian Ambassador over Obama Administration sanctions.  Also, let’s not forget that this phone call was supposedly obtained through Signals Intelligence (aren’t there rules about intercepting such calls when Americans are present?) and its release is a major felony.  But back to the main point.  Did Mike Flynn violate the Logan Act?  Well, what the hell is the Logan Act?

According to Wikipedia The Logan Act is:

The Logan Act (1 Stat. 613, 18 U.S.C. § 953, enacted January 30, 1799) is a United States federal law that details the fine and/or imprisonment of unauthorized citizens who negotiate with foreign governments having a dispute with the United States. It was intended to prevent the undermining of the government’s position.[2] The Act was passed following George Logan‘s unauthorized negotiations with France in 1798, and was signed into law by President John Adams on January 30, 1799. The Act was last amended in 1994, and violation of the Logan Act is a felony.

Now, can someone tell me how the hell the Democrats didn’t violate the hell out of this act in the 1970’s and 1980’s?  A quick and dirty internet search turns up the following:

From the New York Times:

MEXICO CITY, May 26— A delegation of Democrats opposed to the Reagan Administration’s policies in Central America met today with Mexico’s Foreign Minister and gave their backing to a peace initiative being promoted by Mexico and three other regional governments.

A spokesman for the group said the trip had been approved by Representative Thomas P. O’Neill Jr., Democrat of Massachusetts, the Speaker of the House, and by other leading Democrats. ”This trip is planned as one of a series of meetings on Central America,” a group member said. ”The idea is to try and find another concept to support without confronting President Reagan.”

From Wikipedia:

April 1974, [Teddy] Kennedy travelled to the Soviet Union, where he met with leader Leonid Brezhnev and advocated a full nuclear test ban.

From Forbes:

“On 9-10 May of this year,” the May 14 memorandum explained, “Sen. Edward Kennedy’s close friend and trusted confidant [John] Tunney was in Moscow.” (Tunney was Kennedy’s law school roommate and a former Democratic senator from California.) “The senator charged Tunney to convey the following message, through confidential contacts, to the General Secretary of the Central Committee of the Communist Party of the Soviet Union, Y. Andropov.”

Kennedy’s message was simple. He proposed an unabashed quid pro quo. Kennedy would lend Andropov a hand in dealing with President Reagan. In return, the Soviet leader would lend the Democratic Party a hand in challenging Reagan in the 1984 presidential election. “The only real potential threats to Reagan are problems of war and peace and Soviet-American relations,” the memorandum stated. “These issues, according to the senator, will without a doubt become the most important of the election campaign.”

Kennedy made Andropov a couple of specific offers.

First he offered to visit Moscow. “The main purpose of the meeting, according to the senator, would be to arm Soviet officials with explanations regarding problems of nuclear disarmament so they may be better prepared and more convincing during appearances in the USA.” Kennedy would help the Soviets deal with Reagan by telling them how to brush up their propaganda.

Then he offered to make it possible for Andropov to sit down for a few interviews on American television. “A direct appeal … to the American people will, without a doubt, attract a great deal of attention and interest in the country. … If the proposal is recognized as worthy, then Kennedy and his friends will bring about suitable steps to have representatives of the largest television companies in the USA contact Y.V. Andropov for an invitation to Moscow for the interviews. … The senator underlined the importance that this initiative should be seen as coming from the American side.”

Kennedy would make certain the networks gave Andropov air time–and that they rigged the arrangement to look like honest journalism.

I wonder how many more such instances one could find if one really tried. Sounds to me like the media’s sudden self righteous indignation over Flynn’s unauthorized phone conversation regarding Obama Administration sanctions is more than a little political.  Maybe Flynn did violate the spirit if not the letter of the act but he seems to be in good company.

Lest anyone think I’m just mindlessly defending Trump, I’ll also add that if it turns out the the Trump team was having extensive secret negotiations with Russian Intelligence officials before and immediately after the election then a thorough and complete investigation should be done.  Anyone caught breaking the law (not just flirting with the Logan Act) should be fully prosecuted.

 

The 5th Amendment and Your Computer

I’ve always felt that being forced by a court to unlock a safe or decrypt a computer drive was a violation of the 5th Amendment’s protection against self-incrimination.  Whether you produce a physical key/combination or a password is irrelevant in my mind.  It seems that the EFF feels the same way.  The case of Francis Rawls brings this issue to the forefront and also highlights an interesting peer-to-peer network called Freenet.  Mr. Rawls is being held indefinitely on contempt of court charges for refusing to decrypt his two external hard drives.

Since I’m not a lawyer I won’t try to hash out complex legal issues.  The legal issues are laid out here and you can read them for yourself.  The EFF filed a friend-of-the court brief in this case that states their position on the issue.  Read it if you so choose.  My take-a-ways are these:

1. The courts and the law need to recognize that technology has changed how we humans interact with one another, with how we order our lives, and how we store our private and personal papers, thoughts, and inner most secrets.  We have moved into a digital world while the law is still stuck in the old world of physical keys, hard copy papers, and physical vaults.  In the case of forced decryption you must use the contents of your mind to render intelligible what is currently unintelligible (encrypted data).   I view this as a 5th Amendment violation.  In my opinion the law needs to catch up to the way we currently use encryption to protect the important contents of our lives which are now kept on computers and smartphones.  It needs to bring 18th, 19th, and 20th century civil rights protections into the 21st century.

2.  What if you really do forget your password?  Can you really rot in jail in the USA for years on end without a trial?  What if someone plants an encrypted device on your person or property and tips off the police that you’re hiding illegal content?  That could get very ugly very fast.  Even if you are eventually cleared you may still loose your job and reputation.

3.  In my opinion peer-to-peer networks like Freenet can give a false sense of security to people and lead to disastrous consequences.  If you are conducting sensitive activities and aren’t using the anonymity of the Tor network then you are making a mistake.  The case of Mr. Rawls begs the question – if Freenet is so secure and anonymous how did Mr. Rawls get caught?  To quote from the site itself:

Communications by Freenet nodes are encrypted and are routed through other nodes to make it extremely difficult to determine who is requesting the information and what its content is.

Users contribute to the network by giving bandwidth and a portion of their hard drive (called the “data store”) for storing files. Files are automatically kept or deleted depending on how popular they are, with the least popular being discarded to make way for newer or more popular content. Files are encrypted, so generally the user cannot easily discover what is in his datastore, and hopefully can’t be held accountable for it. Chat forums, websites, and search functionality, are all built on top of this distributed data store.

Note the sentence – “Files are encrypted, so generally the user cannot easily discover what is in his datastore, and hopefully can’t be held accountable for it.”  Hopefully???? Really???  ‘Hopefully’ you won’t be held accountable for someone else’s illegal content??????  ‘Hopefully’ you won’t go to prison for decades because of someone else’s stuff??   WTF??   Based on that sentence alone I would never install such software on my computer.  Folks, I can’t tell you what to do but please use some common sense when engaging in sensitive, anonymous activity, whether you’re a dissident, journalist, student, or member of a vulnerable group. Anonymity is hard and if you let others put something on your computer you may be called to account for it.  Knowing what’s on your computer and keeping it safe can be the difference between life in the real world and life in prison.