The 2008 FISA bill which will pass the Senate on Tuesday significantly raises the stakes on the Marijuana legalization front, but not for the reasons that might come to mind. Its not about how warrantless surveillance might help them catch drug smugglers, dealers, or users; if only the factors which join the FISA and Pot issues were that mundane.
Actually, it IS all about "how you think" and "what comes to mind" - quite literally. Its about your right to control your own consciousness, and to the privacy of your thoughts. Intercepting your phone calls, emails, and text/instant messaging may be all the rage at the NSA today, but just wait a few years. The next wave of personal electronics will be a lot more "personal" than your iPod, PDA, GPS, or Cellphone is right now.
Regardless of whether or not you personally enjoy the use of entheogens, whether you are Progressive or Libertarian in your politics, the First Amendment implications of the Marijuana debate will directly impact the Fourth Amendment future of all Americans. (more...)
Get out your tinfoil hats, people, because the FISA future just got a lot more Orwellian than you might imagine.
CONNECTING THE DOTS
The original 1978 FISA law, enacted 30 years ago, failed to anticipate today's digital environment, giving rise to all manner of egregious abuses of our civil liberties and privacy, as technology surpassed the integrity of the government. Unfortunately, neither the Carter Administration nor Tip O'Neil's Congress imagined a future in which everyone carries around a sophisticated and powerful computer/phone in their pockets, "always on", 24/7, with a megapixel camera and the ability to surreptitiously track its wearer's movements with high precision, unbeknownst to the user. That everyone would use desktop Personal Computers - much less Wireless Laptops - a public internet, universal email and instant text messaging was a future that only cybernetics gurus like Ray Kurzweil were talking about in those days.
Todays 2008 FISA repeats this future blindness, again ignoring the experts to craft a legislative compromise which again leaves the federal Spooks of tomorrow huge gaping holes through which our Fourth Amendment protections will again likely be violated. We have already been living with RFID chip implants which can be read remotely on a building-wide basis, and neural prosthetic devices such as Cochlear implants, bionic eye Retinal Implants, and a new generation of Brain Pacemakers. Some of these implants deliver electroshock to the Vagus Nerve to treat psychological/emotional disorders including OCD and Depression, while others use Deep Brain Stimulation to counter Parkinsonism and Epilepsy. Other Brain/Computer Interface implants or "Neurochips" are now used to overcome paralysis or operate prosthetic limbs, and are being offered to treat chronic pain, obesity, incontinence, sleep apnea, and stroke. For years now, the Defense Advanced Research Projects Agency has claimed to "have decoded the language of the human nervous system".
Building on this, the Defense Sciences Office is now confident that it can deliver not only outgoing signals - motor control - of prosthetic limbs through its Brain/Computer Interface chip, but incoming signals, as in tactile sensory perception, as well. This will undoubtedly lead to life-changing appliances for thousands of Iraq War Amputees, other Veterans with amputations or paralysis, and, of course, those similarly injured among the general public at large. However, the ability of Defense Department researchers to decode the humman nervous system, engaging the brain directly with both outgoing and incoming signals is not a technology which should be underestimated or taken lightly. At least 18 months ago, the publicly disclosed elements of this brain chip research had progressed from the test subject willfully controlling prosthetic limbs, to this:
We all remember the great waves of excitement which accompanied the introductions of the iPod, the iPhone, the Wii console, and other transformative advancements in consumer electronics. Long lines around the block at BestBuy and Circuit City, people camping out overnight, others paying a premium of hundreds of dollars over the initial retail price, and some travelling great distances to do so, just to be among the first to get one. Tens of millions of people, known to demographers as "early adopters" always lead the deployment of new technologies in consumer electronics and social networking trends, and this group (perhaps 20% of the general population today) grows to a larger fraction with each generation.
Some, however, go much further. Transhumanists believe in the active enhancement of human capabilities, including mental augmentation of non-impaired individuals, using cognitive prostheses. Within transhumanist circles, Extropians advocate for such change, pointing out that humanity now has the capability to take over the active management of its evolution through the intentional modification of the human genome. Many leaders in the transhumanist/extropian movement are Silicon Valley digerati (not unlike the netroots leadership), who are themselves part of the exponential acceleration in Genetics, Robotics, Artificial Intelligence, and Nanotechnology which is now taking place. Of course, there are a few angry detractors.
What should be of concern to civil libertarians is not that we are perhaps only a decade away from a nasally-implantable Brain/Computer Interface chip which can be your Cellphone, iPod, GPS, PDA, Laptop, and WiFi Internet all rolled into one, but rather what the intelligence establishment can do, as people everywhere, by the millions, take these devices into their bodies. (If you're still skeptical at this point, it can only mean that you havent clicked through the links above, because its not hard to connect the dots, and there can be only one conclusion to the trends.) The conspiracy theorists missed the mark; the NSA doesnt have to force people to get microchipped; history proves that we will queue up in long lines around the block at BestBuy and Circuit City, camp out overnight, pay premiums of hundreds of dollars over the initial retail price, and travel great distances to do so, and sell our grandmothers by the pound, just to be among the first to get one.
We've seen how thirty-year-old, technologically obsolete FISA restrictions lead to unscrupulous politicians and various Alphabet Spooks 'taking liberties' (literally) with the Fourth Amendment. Think ahead, another 30 years, to the digital environment of 2038, and the archaic, technologically obsolete FISA from way back in 2008, then likely to still be on the books, substantially unchanged from what will pass the Senate on Tuesday (07.08.08). Barring another 9/11 - which would tend to pressure for greater intrusiveness, not less - there is no substantive political motivation for anyone on the Right or the Left, Republican or Democrat, to revisit FISA again in the foreseeable future, just as there hadnt been between 1978 and the 2001 "Patriot" Act. Long before 2038, and potentially before the next president leaves office, the number of individuals carrying implanted RFID chips and various neural prostheses will vastly exceed the 200,000 people walking around with them inside their bodies today, and the two-way neural interface DARPA has developed will find its way into these products, initially for medical but subsequently for recreational applications. Its all about how Wii, meet Them.
The advent of these personal cybernetic technologies cant be stopped, and it would be preternaturally immoral (and politically wrong) to even attempt doing so, because people are entitled to Freedom of Conscience, and the Right to Control their own Consciousness; to modify or modulate their Own Mind ("Their Bodies, Their Selves") in whatever ways they see fit. And, there we have the crux of the issue. A broad SCOTUS ruling, which affirms these bedrock freedoms and rights, at the fundamental level of June's Habeas Corpus and Second Amendment decisions, is necessary, before this fresh new Hell occurs, rather than after.
One immediate legal option is an appeal which extends the 2006 SCOTUS decision of Gonzales v. UDV, and the application of the Sherman Test [restored by the 1993 Religious Freedom Restoration Act] to the federal prohibition against Cannabis. In Gonzales v. UDV, the Court held unanamously (8-0 with the newly-minted Justice Alito abstaining) that the Free Exercise Clause of the First Amendment, "Congress shall make no law regarding an establishment of religion, or prohibiting the free exercise thereof..." constitutionally protects the right of the people to enjoy the use of Ayahuasca as a sacrament in spiritual expression. The plaintiffs, Centro Espírita Beneficente União do Vegetal or "UDV", employ the psychedelic tea as an Entheogen, their means to reach beyond normal 4-D spacetime, and interact with the Universe, along their path towards finding God. This decision affirmed the federally-binding nature of the RFRA, which effectively exempted - legalized - the use of Peyote in Native American spiritual practice as expressly protected under the First Amendment.
The argument at hand is not about the Amerinds use of Peyote, or the Brazillian indigenauts who explore with Ayahuasca, or the many religious faiths, spiritual traditions, and shamanic practices around the world (Rastafarians, Zion Coptics, etc.) who use Cannabis as a sacramant or 'Eucharist', and have done so for thousands of years. Instead, we are interested in a broader issue, defining as Absolute your Right to control your own consciousness, as a fundamental aspect of Liberty. The Court was not divided on Gonzales v. UDV, and, in a properly prepared appeal addressing Cannabis, the identical question involved could not possibly be interpreted by the Court any differently from its 2006 decision. This matters, because the far broader impact of such a case goes directly to the heart of the future impact of today's flawed FISA.
Since the Court cannot condone a different treatment of the Rastafarians (for example) under U.S. law from that accorded the Native American Church or the Uniao do Vegetal ("Equal Protection"), and because the spiritual philosophies of the latter two, in their enjoyment of sacraments are fully protected ("Free Exercise"), a broader tradition of the Right to regulate one's own mental state emerges. This necessarily implies a Right to Privacy in so doing, and a protection in that exercise from unreasonable Searches - and Seizures, no pun intended - and the protection of Due Process in these protected spiritual endeavors.
It is legally and rationally impossible to conceive of a meaningful difference between your internal cognitive exercise of your Freedom of Conscience as pertains to Religion, and your internal cognitive exercise of your other freedoms protected by the First Amendment. Since NO case can be made - today - for any compelling public interest (the "Sherman Test") in observing, decrypting, recording, or interfering with your personal thoughts, or the "mind movie" of experiential existence playing out within your brain, then your freedom to communicate, multimedially or transcendentally, must be secure under the First and Fourth Amendments. This leaves no "wiggle room" for any Supreme Court Justice on this issue, as, indeed, even Scalia, Roberts, and Thomas recognized in the UDV case. While they do not want this issue, have actively tried to discourage it being raised again, and may wish to decline such a Cannabis appeal, they do not have the latitude to ignore the Fourteenth Amendment question such an appeal would raise.
FROM TELCOS to TRANSFORMATION
This is not a political issue that can be addressed by an Obama Administration or the 111th Congress, for obvious reasons. But, if the proper legal coalition could be assembled (NORML, ACLU, EFF, MAPS, Heffter, and others), its a battle worth waging - now, immediately if not sooner - to the very last dollar. The Supremes in general (and Justice Kennedy, in particular, it would seem) are more clearly disposed to protect and defend the Constitution, against all enemies, foreign and domestic, than are the chattering class politicians in either party. We dont know that a future Court will be this fair, circumspect, or courageous, no matter who appoints the next Justice to the Court. In Gonzales v. UDV, Boumediene v. Bush, and District of Columbia v. Heller, THIS SCOTUS has been resolute and consistent in its verbatum adherence to the Bill of Rights. Its 4:19 on Freedom of Conscience. Lets do this thing before it changes, in any direction. Its not just about 'light up', anymore...