CO125 Wen Fa on Litigating Liberty

Wen Fa is an attorney with the Pacific Legal Foundation, a national, nonprofit legal organization that represents clients free of charge.

We talked about his work on cases including Rentberry v. City of Seattle about rent-bidding laws, and another tenant/landlord case, Pakdel v. City and County of San Francisco, and various cases about Vaping.


Francis Rawls is in jail. And that’s where he’s staying. He lost his case at the 3rd US Circuit Court of Appeals in Philadelphia. So what has he been convicted of? Nothing.

Rawls, a former Philadelphia police officer has been in jail 17 months because he invoked the Fifth Amendment, he said he wouldn’t give self-incriminating information to police investigating him. But the Fifth Amendment is, you know, the Fifth Amendment. It guarantees the right not to incriminate yourself.

The exact text is no person “shall be compelled in any criminal case to be a witness against himself”. So how come the court denied his appeal, with three judges voting unanimously against him? It’s partly because the information that the police and the courts want him to hand over, and that he is refusing, are the passwords to encrypted external hard drives that were connected to his computer. The police seized them, along with his computer because they believe they contain child porn, and they do have good reason to believe that, and they convinced a judge to give them a warrant to seize and search his computer.

The appeals court ruled that forensic examination showed that Rawls had downloaded thousands of files, the hash values of which indicated they were child pornography.  That’s a bit of geek-speak but it means they were monitoring his online activity, they didn’t get the actual files, but they recognized that they were extremely likely to be identical to files of known child porn images.

There was other evidence – one image depicting a pubescent girl in a sexually suggestive position was found on his computer, Rawls’ sister had said her brother showed her hundreds of pictures and videos of child porn, and that logs on his computer that suggested the user had visited groups with titles common in child exploitation.

There are some problems with that evidence, logs of a computer visiting pages with titles common in child exploitation doesn’t mean that the computer downloaded child porn, and they don’t prove who generated those logs; but that said, you can be damn sure I wouldn’t be leaving  Francis Rawls alone with any child of mine.

But Rawls hasn’t been convicted of anything, he hasn’t even been charged with anything, but the court ruled that the Fifth Amendment doesn’t apply; the lower court, the appeals court and the police, all agreed that the presence of child porn on his drives was a “foregone conclusion.” That’s where my real problem was. If it is a foregone conclusion, why not just use the evidence that shows it is a foregone conclusion to charge and convict Rawls?

We’ve had a speaker from the Electronic Frontier Foundation on the podcast before and one of their attorneys said about this case “compelled decryption is inherently testimonial because it compels a suspect to use the contents of their mind to translate unintelligible evidence into a form that can be used against them. The Fifth Amendment provides an absolute privilege against such self-incriminating compelled decryption.”

But the court disagreed, and Rawls stays in prison until he hands over the passwords, even though he has already been inside for longer than he might expect to be if he was sentenced for possessing child porn.

It’s hard to have sympathy with someone who’s probably a pedophile, but that’s the whole point. If our rights can be cancelled by just being accused of being a criminal, then none of those rights will last long. There’s no point in saying that everyone is entitled to a fair trial, as long as they are not suspected of being a criminal.

And this is not a rarified situation. Many countries have a variation of this, but New Zealand has gone a step further and made it a crime for anyone travelling in or out of that country not to unlock their phone or other devices for border officials to snoop through and copy as they see fit. No reason, no warrant required, and anyone who doesn’t comply will have their devices confiscated, along with a $5,000 fine.

So if anyone you’ve ever been sexting with decides to take a trip to New Zealand, you can expect your private photos to be shared around the break room of the border guards, and then be sent on to all their friends, and their friends’ friends, and so on.

It’s long been established that countries are entitled to check the goods coming across their borders to make sure they are legitimate, the right taxes are paid and so on. When the electronic age came in, that seems to have been quietly extended to examining the data stored on laptops, phones and so on.

I just don’t buy the line that this is to protect us from terrorists or organized crime. Anyone who is wise to these laws will be smart enough to make sure they only travel with clean devices. If they want to store or transport incriminating data, they can just encrypt it, email it to themselves, and pick it up once they have crossed the border.

Sure, these laws might pick up the odd dumb criminal, but that leaves the question – are you willing to sacrifice all of your privacy, hand over all your data to the border agents of any country you, or anyone you’ve been in contact with travels to for them to make use of on their next bathroom break or to pass on to their secret police, just to pick up the odd dumb criminal?

Getting Off Podcast Special for Challenging Opinions

Challenging Opinions brings you a special showcase edition of the Getting Off podcast, presented by Jessa and Nick. It’s dark-humored criminal defense attorneys discussing famous crimes, trials, and all things criminal justice.

Go to to subscribe, or search Getting Off Podcast in wherever you get your podcasts.

CO124 Steven Taylor on The Electoral College, again

Steven Taylor  is Professor of Political Science and Dean of the College of Arts and Sciences at Troy University, Alabama. He specialises in political parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. We discussed an article he wrote for Outside the Beltway.

We’ve been hearing a lot about Ukraine in the past week, and I can promise you’ll be hearing a lot more about it the coming weeks and months, and maybe even years. I’m not going to try to keep you up to date with what’s going on in the White House, that’s not really the job of a podcast, certainly not this podcast.

Continue reading “CO124 Steven Taylor on The Electoral College, again”

CO123 Anthony Galace on Greenlining not Redlining

Anthony Galace is the director of health equity at the Greenlining Institute.


Our brains don’t really work so well with very small or very large numbers. If I ask you to imagine the distance from earth to the sun, from earth to the nearest star, or earth to the nearest galaxy, it’s tempting to just think very, very far in all three cases, even though each one is millions of times more than the previous one.

Continue reading “CO123 Anthony Galace on Greenlining not Redlining”

CO122 Sky Palma on Opinion News

Sky Palma is the founder of DeadState, and a senior editor at Raw Story.


If I was to ask you what was the most dangerous animal in the world, and you were to think tigers, bears or sharks, you’d be wildly wrong, particularly with sharks. Despite Shark Week, despite Jaws, sharks are not statistically dangerous to humans – quite the reverse, humans kill millions, many, many millions of times more sharks that sharks kill humans.

I’m sure some smartass out there will be thinking that the most dangerous animal is man, but I’m thinking of other animals that kill humans.

A shark…

And by a mile, the winner is the mosquito. To put it in context, sharks typically kill five or six humans per year, worldwide. Depending on your sources, mosquitoes kill somewhere between 700,000 and 2.7m people per year. Get that, mosquitoes kill at the very least 100,000 times more people than sharks. They are estimated to be responsible for about 17 per cent of all the disease on the planet. I can’t wait for Mosquito Week on the Discovery Channel.

Continue reading “CO122 Sky Palma on Opinion News”

CO121 Jared Moffat on the Legacy of Prohibition

Jared Moffat is campaign coordinator for the Marijuana Policy Project.

I mentioned that Ferguson, Missouri gains an extrordinary amount of its revenue from motoring fines.

Black people make up 27 percent of the population, but represent 71 percent of drivers pulled over by police officers. Last year, the town issued 29,072 traffic citations, according to statistics from the Missouri attorney general’s office.


A couple of weeks back an international group of scientists announced that they had detected a black hole swallowing a neutron star.

I say a couple of weeks back, but the detection made last month was actually of something that happened 900 million years ago, long before the dinosaurs walked the earth. It was detected last month because that’s how long it took the gravitational waves to arrive at earth from where this event happened, 900 million light years away.

Continue reading “CO121 Jared Moffat on the Legacy of Prohibition”

CO120 Reese Erlich on Tensions with Iran

Reese Erlich has won numerous journalism awards including a Peabody award. He’s also a freelance journalist who writes for CBS Radio, Australian Broadcasting Corp., NPR and VICE News, and his Foreign Correspondent column distributed nationally in the US.

Last year he published his latest book with the title The Iran Agenda Today: The Real Story Inside Iran and What’s Wrong with U.S. Policy.


I mentioned the pro-democracy protests in Hong Kong a few weeks back, particularly the fact that a huge proportion of the city’s population was taking part in them. Since I talked about them, the protests have been covered widely in the western media, and they haven’t dissipated, they are continuing every weekend.

Continue reading “CO120 Reese Erlich on Tensions with Iran”

CO119 Gautam Tejas Ganeshan on What Motivates Antivaxxers

Gautam Tejas Ganeshan is a musician and a writer and blogger, and we talked about a piece that he wrote titled ‘Is there an intelligible “anti-vaxx” position?

CO118 Andrew Branca on Gun Law

Andrew Branca is a lifelong NRA member, a lawyer who consults on self-defence law and the author of The Law of Self Defense: The Indispensable Guide to the Armed Citizen.

During our discussion, I metioned the Dickey Amendment, which forbids the Centers for Disease Control and Prevention from advocating or promoting gun control, but has widely been interpreted as preventing the CDC from studying the health effects of gun ownership.

Continue reading “CO118 Andrew Branca on Gun Law”

CO117 Will Wilkinson on Community and Ideology

Will Wilkinson is the vice president for research at the Niskanen Center.

He’s also and a contributing opinion writer for the New York Times. He was previously, a correspondent for The Economist and a research fellow at the Cato Institute.

Continue reading “CO117 Will Wilkinson on Community and Ideology”

CO116 Raymond Ibrahim on Islam and the West

Raymond Ibrahim is the author of Sword and Scimitar: Fourteen Centuries of War Between Islam and the West.


Let’s do a bit of science.

Maybe, like me, you have had various social media invaded by people making all sorts of complaints about something called 5G. That’s the newest mobile data standard. Unless you are really special, that doesn’t work on your phone yet, but the networks are being installed, and newer handsets using them will be available soon, probably starting at the top end of the price range.

Continue reading “CO116 Raymond Ibrahim on Islam and the West”

CO115 John Hawkins on Politicized Data

John Hawkins is a writer for Bizpaq review, Brass Pills and is the editor Right Wing News. He’s also the author of 101 Things All Young Adults Should Know.

We talked about John’s article The Best Stats & Quotes From ‘Alienated America: Why Some Places Thrive While Others Collapse’, John’s take on the findings of that book. I mentioned the fact that the number of hours needed to work at minimum age to pay college tuition has increased about tenfold in the last 40 years, and the book Bowling Alone by Robert Putnam.

Continue reading “CO115 John Hawkins on Politicized Data”

CO114 Greg Shupak on Reporting the Conflict

Greg Shupak has a PhD in Literary Studies and teaches Media Studies at the University of Guelph in Toronto. He regularly writes analysis of politics and media for outlets including Electronic Intifada, In These Times, Jacobin, and the website Fairness and accuracy in reporting.

Continue reading “CO114 Greg Shupak on Reporting the Conflict”

CO113 Mark Vernon on the Secret History of Christianity

Mark Vernon is a psychotherapist and writer, with a degree in physics, before two degrees in theology, and a PhD in philosophy. He’s written books covering subjects from friendship and belief, to wellbeing and love.

Continue reading “CO113 Mark Vernon on the Secret History of Christianity”

CO112 Justin Strekal on Legalizing Marijuana

Justin Strekal political director at Norml.


I mentioned last week that I would talk about the earthquake – earthquakes really – in UK politics. In particular that Nigel Farage’s new party, the Brexit Party won the European Parliament elections in the UK by a mile last month.

Continue reading “CO112 Justin Strekal on Legalizing Marijuana”

CO111 Bruce Schneier on Cybersecurity

Bruce Schneier is a public-interest technologist. He’s been writing about security issues for more than 20 years, and he’s a Special Advisor to IBM Security, a fellow and lecturer at Harvard’s Kennedy School, and a board member of Electronic Frontier Foundation.


A couple of quite similar stories caught my eye in the past while.

The first was about a German MP called Markus Frohnmaier. He was elected to the Bundestag, the German parliament for the far-right AfD party in 2017.

Continue reading “CO111 Bruce Schneier on Cybersecurity”

CO110 Grayson Quay on Another View on MeToo

Grayson Quay is a freelance writer. His work has been published in The Washington Times,, National Interest, Townhall and others. He is also MA candidate at Georgetown University Master’s Degree candidate.

CO109 Aaron Naparstek on the War on Cars

Aaron Naparstek is a cohost of the War on Cars podcast, and also the founder of


There have been a couple of stories about facial recognition. This audio is from a BBC report where the police set up a van with cameras filming passersby and searching for records on them based on facial recognition. One man decided that he didn’t like that, and pulled his sweater up over his mouth and nose to frustrate the camera system; the police stopped him, forced him to be photographed, and fined him £90, about $115 for what they called disorderly conduct.

Continue reading “CO109 Aaron Naparstek on the War on Cars”

CO108 Rob Bluey on Standards and Consistency

Rob Bluey is vice president for communications at The Heritage Foundation and Founding Editor of Daily Signal. I mentioned in the interview an article that Rob wrote during the Obama administration criticizing the removal of a website about earmark reform, and contrasted it to the Trump cull of the EPA’s website.


Last month, a mob of more than 70 men, armed with baseball bats, knives, and rocks launched a series of vigilante attacks around the towns of  Clichy-sous-Bois and Bobigny, about an hour east of Paris. French police arrested at least 20 of them.

Continue reading “CO108 Rob Bluey on Standards and Consistency”

CO107 David Dayen on the Economics of Vaping

David Dayen is a contributing writer The Intercept and a weekly columnist for the New Republic. He is the author of the book Chain of Title: How Three Ordinary Americans Uncovered Wall Street’s Great Foreclosure Fraud., and he’s shortly to become the executive editor of the American Prospect.

We talked about his article How Vaping Giant Juul Explains Everything that’s Wrong with our World.


There’s a story in the last couple of weeks that, if you’re in Australia, you’ve almost certainly heard, if you’re not in Australia, you’ve almost certainly not heard.

Continue reading “CO107 David Dayen on the Economics of Vaping”