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On November 29th, the U.S. Supreme Court will hear oral arguments in Carpenter v. US, a case essentially asking whether or not authorities need a warrant based on probable cause and signed by a judge to see your cellphone location data. For now, they do not. Given the fact that about 95% of Americans have cellphones, this case has major implications. Quartz reports: Mobile-service providers collect "cell site location information" (CSLI) for all phones, ostensibly to use for things like improving their networks. The U.S. government considers these data "routinely collected business records" rather than private information. That means it can demand the records without proving probable cause. That's what happened in the criminal case of Timothy Carpenter, accused of a series of Detroit, Michigan robberies. At Carpenter's trial, prosecutors presented evidence collected by private companies, obtained by the law without probable cause. They used 127 days-worth of cellphone-location data, amounting to almost 13,000 data points, to tell a circumstantial story of Carpenter comings and goings.

In its brief to the high court, filed in September, the justice department argued that when Carpenter signed onto his cell-phone provider's service, he agreed that his call records weren't private information belonging to him, but rather business records belonging to the company. Therefore, he should have "no reasonable expectation of privacy" when it comes to these records, government attorneys wrote. Carpenter argues that the location evidence was obtained illegally. The Sixth Circuit Court of Appeals denied that claim last year, basing their decision on Supreme Court cases from the 1970s: Smith v. Maryland and US v. Miller . The appeals court concluded that, under what's called the "third-party doctrine," Americans don't have a reasonable expectation of privacy in things like check deposit slips, similar banking records, and dialed telephone numbers.

Trailrunner7 quotes a report from On the Wire: As bad as the ransomware problem is right now -- and it's plenty bad -- we're likely only at the beginning of what could become a crisis, experts say. "Lots of people are being infected and lots of people are paying. The bottom line its it's getting worse and it's going to continue to do so," Jeremiah Grossman, chief of security strategy at SentinelOne, said during a talk on the ransomware epidemic at the RSA Conference here Monday. "Seven-figure ransoms have already been paid. When you're out of business, you'll pay whatever you have to in order to stay in business. You're dealing with an active, sentient adversary." The ransomware market seems to be headed in the same direction as real-world kidnapping, where high-profile targets take out insurance policies to pay ransoms. Grossman said it probably won't be long before the insurance companies latch onto the ransomware game, too. "The insurance companies are going to see a large profit potential in this. Kidnapping and ransom insurance is still very boutique. This economic model will probably apply equally well to ransomware," he said. According to The FindLaw Corporate Counsel Blog, "Ransomware attacks fall under your cyber insurance policy's 'cyber extortion' coverage and can generally be considered "first-party" or "third-party" coverage, according to Christine Marciano, president of Cyber Data Risk Managers. Third-party coverage would likely leave a company uninsured when they are the victims of a ransomware attack. Even if your insurance policy covers ransomware attacks made against your company, the deductible may be so high that the company will be stuck paying any ransomware demands out of pocket (should the company decide to pay to decrypt its data). And your coverage may be sub-limited to relatively small amounts, according Kevin Kalinich, the global cyber risk practice leader for Aon Risk Solutions. A $10 million policy may only provide $500,000 for cyber extortion claims, he explains."

An anonymous reader quotes Ars Technica: A U.S. federal appeals court has found that law enforcement can, without a warrant, swipe credit cards and gift cards to reveal the information encoded on the magnetic stripe. It's the third such federal appellate court to reach this conclusion. Last week, the 5th U.S. Circuit Court of Appeals found in favor of the government in United States v. Turner, establishing that it was entirely reasonable for Texas police officers to scan approximately 100 gift cards found in a car that was pulled over at a traffic stop. Like the previous similar 8th Circuit case that Ars covered in June 2016, the defendants challenged the search of the gift cards as being unreasonable. (The second case was from the 3rd Circuit in July 2015, in a case known as U.S. v. Bah.) In this case, after pulling over the car and running the IDs of both men, police found that there was an outstanding warrant for the passenger, Courtland Turner. When Turner was told to get out of the car and was placed in the patrol car, the officer returned to the stopped car and noticed an "opaque plastic bag partially protruding from the front passenger seat," as if someone had tried to push it under the seat to keep it hidden. The cop then asked the driver, Broderick Henderson, what was in the bag. Henderson replied that they had bought gift cards. When the officer then asked if he had receipts for them, Henderson replied that they had "bought the gift cards from another individual who sells them to make money." Turner's lawyers later challenged the scanning, arguing that this "search" of these gift cards went against their client's "reasonable expectation of privacy," an argument that neither the district court nor the appellate court found convincing. The 5th Circuit summarized: "After conferring with other officers about past experiences with stolen gift cards, the officer seized the gift cards as evidence of suspected criminal activity. Henderson was ticketed for failing to display a driver's license and signed an inventory sheet that had an entry for 143 gift cards. Turner was arrested pursuant to his warrant. The officer, without obtaining a search warrant, swiped the gift cards with his in-car computer. Unable to make use of the information shown, the officer turned the gift cards over to the Secret Service. A subsequent scan of the gift cards revealed that at least forty-three were altered, meaning the numbers encoded in the card did not match the numbers printed on the card. The investigating officer also contacted the stores where the gift cards were purchased -- a grocery store and a Walmart in Bryan, Texas provided photos of Henderson and Turner purchasing gift cards."

Slashdot reader chasm22 quotes Reuters: A federal jury in Texas on Friday night ordered Apple Inc to pay more than $302 million in damages for using VirnetX Holding Corp's patented internet security technology without permission in features including its FaceTime video conferencing application. The verdict came in a new trial in Tyler, Texas that had been ordered by the judge in the case, Robert Schroeder, who last August threw out VirnetX's $625.6 million win over Apple from a previous trial because he said jurors in that case may have been confused...

A jury in 2012 awarded $368.2 million in damages, but the U.S. Court of Appeals for the Federal Circuit in Washington, D.C., partly overturned that verdict, saying there were problems with how the trial judge instructed jurors on calculating damages. On remand, VirnetX's two suits were combined, and in February, a jury returned with an even bigger verdict, $625.6 million, one of the highest ever in a U.S. patent case... However, Schroeder later voided the result, saying that the repeated references to the earlier case could have confused jurors and were unfair to Apple... Apple will also have to contend with the trial in a second lawsuit VirnetX filed against Apple over newer versions of Apple security features, as well as its iMessage application.
The article points out that "Many patent cases are handled in the Texas court, which has a reputation for awarding favorable verdicts to plaintiffs alleging infringement."

An anonymous reader writes from a report via Ars Technica: Jennifer Youngman, a 65-year-old woman living in rural northern Virginia shot down a drone flying over her property with a single shotgun blast. Ars Technica reports: "Youngman told Ars that she had just returned from church one Sunday morning and was cleaning her two shotguns -- .410 and a .20 gauge -- on her porch. She had a clear view of the Blue Ridge Mountains and neighbor Robert Duvall's property (yes, the same Robert Duvall from The Godfather). Youngman had seen two men set up a card table on what she described as a 'turnaround place' on a country road adjacent to her house. 'I go on minding my business, working on my .410 shotgun and the next thing I know I hear bzzzzz,' she said. 'This thing is going down through the field, and they're buzzing like you would scaring the cows.' Youngman explained that she grew up hunting and fishing in Virginia, and she was well-practiced at skeet and deer shooting. 'This drone disappeared over the trees and I was cleaning away, there must have been a five- or six-minute lapse, and I heard the bzzzzz,' she said, noting that she specifically used 7.5 birdshot. 'I loaded my shotgun and took the safety off, and this thing came flying over my trees. I don't know if they lost command or if they didn't have good command, but the wind had picked up. It came over my airspace, 25 or 30 feet above my trees, and hovered for a second. I blasted it to smithereens.'" Ars goes on to explain that aerial trespassing isn't currently recognized under American law. "The Supreme Court ruled in a case known as United States v. Causby that a farmer in North Carolina could assert property rights up to 83 feet in the air. There is a case still pending on whether or not Kentucky drone pilot, David Boggs, was trespassing when he flew his drone over somebody else's property. "Broggs asked the court to rule that there was no trespassing and that he is therefor entitled to damages of $1,500 for the destroyed drone."

An anonymous reader writes: Lexmark is best known for its printers, but even more important to its business is toner. Toner cartridges are Lexmark's lifeblood, and they've been battling hard in court to protect their cashflow. The NY Times has published an editorial arguing that one of their recent strategies is bogus: making patent infringement claims on companies who refill used cartridges. Think about that, for a moment: Lexmark says that by taking one of their old, empty cartridges, refilling it with toner, and then selling it somehow infringes upon their patents to said cartridges. "This case raises important questions about the reach of American patent law and how much control a manufacturer can exert after its products have been lawfully sold. Taken to their logical conclusion, Lexmark's arguments would mean that producers could use patent law to dictate how things like computers, printers and other patented goods are used, changed or resold and place restrictions on international trade. That makes no sense, especially in a world where technology products and components are brought and sold numerous times, which is why the court should rule in favor of Impression." The Times paints it as the latest attack on ownership in the age of DRM.

HughPickens.com writes Matt Ford writes in The Atlantic that thanks to a European Union embargo on the export of key drugs, and the refusal of major pharmaceutical companies to sell them the nation's predominant method of execution is increasingly hard to perform. With lethal injection's future uncertain, some states are turning to previously discarded methods. The Utah legislature just approved a bill to reintroduce firing squads for executions, Alabama's House of Representatives voted to authorize the electric chair if new drugs couldn't be found, and after last years botched injection, Oklahoma legislators are mulling the gas chamber.

The driving force behind the creation and abandonment of execution methods is the constant search for a humane means of taking a human life. Arizona, for example, abandoned hangings after a noose accidentally decapitated a condemned woman in 1930. Execution is also prone to problems as witnesses routinely report that, when the switch is thrown, the condemned prisoner "cringes," "leaps," and "fights the straps with amazing strength." The hands turn red, then white, and the cords of the neck stand out like steel bands. The prisoner's limbs, fingers, toes, and face are severely contorted. The force of the electrical current is so powerful that the prisoner's eyeballs sometimes pop out and "rest on [his] cheeks." The physical effects of the deadly hydrogen cyanide in the gas chamber are coma, seizures and cardiac arrest but the time lag has previously proved a problem. According to Ford one reason lethal injection enjoyed such tremendous popularity was that it strongly resembled a medical procedure, thereby projecting our preconceived notions about modern medicine—its competence, its efficacy, and its reliability—onto the capital-punishment system. "As states revert to earlier methods of execution—techniques once abandoned as backward and flawed—they run the risk that the death penalty itself will be seen in the same terms."

Frequent correspondent Bennett Haselton writes with a forward-looking response to a recent ruling that peer-to-peer network participants have little privacy interest in files stored on their computer and that they have made available via P2P. Writes Bennett: "A court rules that law enforcement did not improperly 'search' defendants' computers by downloading files that the computers were sharing via P2P software. This seems like a reasonable ruling, but such cases may become rare if P2P software evolves to the point where all downloads are routed anonymously through other users' computers." Read on for the rest.

The police had used an automated P2P search tool to find evidence that child pornography was being shared from the defendants' computers, and then used that evidence to obtain probable cause warrants for searching their computers (where they subsequently found child porn being stored, and the defendants were charged accordingly). Last Friday, District Court Judge Christina Reiss ruled that the P2P search tool did not violate the defendants' 4th Amendment rights against unreasonable search, as they had argued.

I'm all for strong privacy rights and the right to exclude evidence at trial that was gathered improperly, but it's hard to see how the defendants thought they had a leg to stand on here. When you share a file on a P2P network where other users can download directly from your computer, by definition you are advertising that you have that file. Now, some of the time you might be sharing that file not out of the goodness of your heart, but because you're required to share the file in order to earn "credits" that you can use to continue your own downloads (BitTorrent requires sharing for this reason). But even then, you would still know that you were sharing the file (unless you really never realized how file sharing software works, but since it's actually called "file sharing software", that's kind of on you).

However, as I wrote in January, there's no reason why popular P2P programs couldn't re-route each download through a different user's connection, so that if you were downloading a file from another computer's IP address, you would never know if the file resided on that computer's hard drive. Obviously I'm not endorsing the use of such software by creeps like the ones who were arrested; I'm saying that regardless of how we feel about it, it's inevitable that proxified re-routed connections will become the de facto standard for P2P file sharing, if the following conditions remain true:

• It remains legal to run the software at all. This seems like a reasonable assumption in a mostly-free country like the U.S., where although piracy is illegal, file-sharing programs like BitTorrent are still legal even if they are frequently used for piracy.

• A user cannot be held liable for unknowingly forwarding data packets on behalf of someone else, even if the data packets comprise an illegal file (whether it's child pornography or a pirated movie).

• Bandwidth continues to get faster and cheaper. Today, if you download a 100-megabyte file by routing your download through three other users' computers, it will usually be much slower and more inconvenient than if you'd downloaded the file directly. In a few years, you won't notice the difference.

• If the police raid a suspect's house and seize their computer, if they see that the computer has an encrypted partition, the suspect can invoke their Fifth Amendment right to refuse to give the police the decryption password. You know how I feel about that, but the latest rulings on the question seem to affirm that you can refuse to decrypt your hard drive for law enforcement. So a good P2P client for "illicit" file trading would come with built-in support for an encrypted hard drive partition, where all saved files would be stored. (The software would probably come with a "kill switch" that you could use to instantly dismount your encrypted partition if you heard a knock on your door, and a five-minute inactivity timeout after which the drive would dismount automatically.)

In that previous article, I described a protocol in which any time a P2P user X (the "downloader") downloaded a file from another P2P user Y (the "sharer"), the connection would be routed through the computer of at least one "go-between" user Z (and possibly a chain of users Z1, Z2,... Zn). Each of the go-betweens simply downloads bytes from the next computer "up" the chain and sends those bytes on to the next computer "down" the chain, and none of the go-betweens know how far the chain extends in either direction. Because of the design of the protocol, from the point of view of any of the go-betweens, there is only a 40% chance that the computer they're downloading from, is the original "sharer." (See the January article for details on how this would be achieved.)

Now, does the analysis change if your adversary is the FBI looking for child pornographers, rather than the MPAA looking for movie pirates? Here are the variables that I think matter:

• The standard of proof to punish you is higher. In a civil lawsuit, the MPAA would only have to prove their case against you by a "preponderance of the evidence" (i.e. greater than 50%); to obtain a criminal conviction, the court would have to prove your guilt "beyond a reasonable doubt." However in both cases, if all that the court knows is that the defendant's computer was identified as passing along bits and bytes of an illegal file, and the court understands that there's only a 40% chance that the computer owner actually possessed the illegal file, then this falls below the standard of proof in both cases. (Of course, this is contingent on no other evidence turning up to implicate you. If the police raid your house and find child pornography printouts lying around your desk, then so much for the "40% chance of guilt" figure.)

• In a civil trial, the defendant can be called to the stand and made to answer questions (unlike a criminal trial, where the defendant can refuse to testify under the Fifth Amendment). So even if the MPAA's lawyer knew there was only a 40% chance that they had sued the right defendant, they could ask the defendant under oath, "Did you download this movie?" (Or they could sue 10 defendants at once, and argue, correctly, that on average about 4 of those defendants were probably guilty.) The defendant could invoke their Fifth Amendment rights and refuse to answer, however, in a civil trial, the court is free to consider this refusal to be evidence weighing in favor of the defendant's guilt. In theory, a defendant could simply say "No," and there would be no way to prove they were lying. In practice, the MPAA's lawyer might try to intimidate a defendant into confessing, telling them that the worst that can happen to them if they confess is just a monetary judgment, but if they lie under oath they could go to jail, etc.

• The punishment for getting caught for possession of child pornography is much more severe. I'm not sure if this changes the analysis though. It's not a case of "a 40% chance of losing a lawsuit vs. a 40% chance of going to jail." If the court in both cases can never establish your guilt with a probability of more than 40%, then since that's not enough to get a criminal conviction or a civil judgment, you actually have a 0% chance of losing in either case, provided you don't make any other errors (leaving illegal printouts by your computer), and provided the court actually understands that the "evidence" only establishes about a 40% chance of your guilt.

• The cost of being accused of possessing child pornography is much higher, even if you ultimately win in court. If the MPAA sues you for downloading a pirated movie (even if they know there's only a 40% chance they've got the right person), that would probably just increase your street cred among your friends. If you're a middle-aged computer nerd accused of downloading child pornography, not so much. Even if you're ultimately acquitted, your reputation will probably be ruined.

This last point suggests the only "attack" that I can think of that law enforcement could use successfully against this protocol. The police know in advance that if they arrest someone for transmitting an illegal file from their IP address, and if the defendant refuses to testify and the defendant's hard drive is encrypted, the state won't be able to get a conviction since there's only a 40% chance that the defendant was actually in possession of the file. However, if the defendant's life will be ruined by going to trial anyway, law enforcement could use this as a bludgeon to scare people away from even running the P2P protocol. Saying, in essence, "We're going to go out and do searches for illegal files to download, and we will file charges against any person whose IP address re-transmits an illegal file to us. Even though we know we won't be able to get a conviction, we'll ruin the lives of anyone we can identify in this way, so that's the risk that you're taking by installing this software, even if you yourself don't do anything illegal."

Whether this attack would be effective, depends on whether the courts would tolerate these kinds of "intimidation" prosecutions, where the law enforcement knows going in that they can never establish more than a 40% chance of the defendant's guilt (and hence no chance of conviction unless the defendant "cracks"), but they press charges anyway. I would call that an abuse of state power, and say that any prosecutor who knowingly pursues a losing case should be fired and compensation should be paid to the victim, but the courts might not see it that way, especially if the prosecutor finds a way to work the phrase "child porn" into every sentence.

Frequent correspondent Bennett Haselton writes with a forward-looking response to a recent ruling that peer-to-peer network participants have little privacy interest in files stored on their computer and that they have made available via P2P. Writes Bennett: "A court rules that law enforcement did not improperly 'search' defendants' computers by downloading files that the computers were sharing via P2P software. This seems like a reasonable ruling, but such cases may become rare if P2P software evolves to the point where all downloads are routed anonymously through other users' computers." Read on for the rest.

The police had used an automated P2P search tool to find evidence that child pornography was being shared from the defendants' computers, and then used that evidence to obtain probable cause warrants for searching their computers (where they subsequently found child porn being stored, and the defendants were charged accordingly). Last Friday, District Court Judge Christina Reiss ruled that the P2P search tool did not violate the defendants' 4th Amendment rights against unreasonable search, as they had argued.

I'm all for strong privacy rights and the right to exclude evidence at trial that was gathered improperly, but it's hard to see how the defendants thought they had a leg to stand on here. When you share a file on a P2P network where other users can download directly from your computer, by definition you are advertising that you have that file. Now, some of the time you might be sharing that file not out of the goodness of your heart, but because you're required to share the file in order to earn "credits" that you can use to continue your own downloads (BitTorrent requires sharing for this reason). But even then, you would still know that you were sharing the file (unless you really never realized how file sharing software works, but since it's actually called "file sharing software", that's kind of on you).

However, as I wrote in January, there's no reason why popular P2P programs couldn't re-route each download through a different user's connection, so that if you were downloading a file from another computer's IP address, you would never know if the file resided on that computer's hard drive. Obviously I'm not endorsing the use of such software by creeps like the ones who were arrested; I'm saying that regardless of how we feel about it, it's inevitable that proxified re-routed connections will become the de facto standard for P2P file sharing, if the following conditions remain true:

• It remains legal to run the software at all. This seems like a reasonable assumption in a mostly-free country like the U.S., where although piracy is illegal, file-sharing programs like BitTorrent are still legal even if they are frequently used for piracy.

• A user cannot be held liable for unknowingly forwarding data packets on behalf of someone else, even if the data packets comprise an illegal file (whether it's child pornography or a pirated movie).

• Bandwidth continues to get faster and cheaper. Today, if you download a 100-megabyte file by routing your download through three other users' computers, it will usually be much slower and more inconvenient than if you'd downloaded the file directly. In a few years, you won't notice the difference.

• If the police raid a suspect's house and seize their computer, if they see that the computer has an encrypted partition, the suspect can invoke their Fifth Amendment right to refuse to give the police the decryption password. You know how I feel about that, but the latest rulings on the question seem to affirm that you can refuse to decrypt your hard drive for law enforcement. So a good P2P client for "illicit" file trading would come with built-in support for an encrypted hard drive partition, where all saved files would be stored. (The software would probably come with a "kill switch" that you could use to instantly dismount your encrypted partition if you heard a knock on your door, and a five-minute inactivity timeout after which the drive would dismount automatically.)

In that previous article, I described a protocol in which any time a P2P user X (the "downloader") downloaded a file from another P2P user Y (the "sharer"), the connection would be routed through the computer of at least one "go-between" user Z (and possibly a chain of users Z1, Z2,... Zn). Each of the go-betweens simply downloads bytes from the next computer "up" the chain and sends those bytes on to the next computer "down" the chain, and none of the go-betweens know how far the chain extends in either direction. Because of the design of the protocol, from the point of view of any of the go-betweens, there is only a 40% chance that the computer they're downloading from, is the original "sharer." (See the January article for details on how this would be achieved.)

Now, does the analysis change if your adversary is the FBI looking for child pornographers, rather than the MPAA looking for movie pirates? Here are the variables that I think matter:

• The standard of proof to punish you is higher. In a civil lawsuit, the MPAA would only have to prove their case against you by a "preponderance of the evidence" (i.e. greater than 50%); to obtain a criminal conviction, the court would have to prove your guilt "beyond a reasonable doubt." However in both cases, if all that the court knows is that the defendant's computer was identified as passing along bits and bytes of an illegal file, and the court understands that there's only a 40% chance that the computer owner actually possessed the illegal file, then this falls below the standard of proof in both cases. (Of course, this is contingent on no other evidence turning up to implicate you. If the police raid your house and find child pornography printouts lying around your desk, then so much for the "40% chance of guilt" figure.)

• In a civil trial, the defendant can be called to the stand and made to answer questions (unlike a criminal trial, where the defendant can refuse to testify under the Fifth Amendment). So even if the MPAA's lawyer knew there was only a 40% chance that they had sued the right defendant, they could ask the defendant under oath, "Did you download this movie?" (Or they could sue 10 defendants at once, and argue, correctly, that on average about 4 of those defendants were probably guilty.) The defendant could invoke their Fifth Amendment rights and refuse to answer, however, in a civil trial, the court is free to consider this refusal to be evidence weighing in favor of the defendant's guilt. In theory, a defendant could simply say "No," and there would be no way to prove they were lying. In practice, the MPAA's lawyer might try to intimidate a defendant into confessing, telling them that the worst that can happen to them if they confess is just a monetary judgment, but if they lie under oath they could go to jail, etc.

• The punishment for getting caught for possession of child pornography is much more severe. I'm not sure if this changes the analysis though. It's not a case of "a 40% chance of losing a lawsuit vs. a 40% chance of going to jail." If the court in both cases can never establish your guilt with a probability of more than 40%, then since that's not enough to get a criminal conviction or a civil judgment, you actually have a 0% chance of losing in either case, provided you don't make any other errors (leaving illegal printouts by your computer), and provided the court actually understands that the "evidence" only establishes about a 40% chance of your guilt.

• The cost of being accused of possessing child pornography is much higher, even if you ultimately win in court. If the MPAA sues you for downloading a pirated movie (even if they know there's only a 40% chance they've got the right person), that would probably just increase your street cred among your friends. If you're a middle-aged computer nerd accused of downloading child pornography, not so much. Even if you're ultimately acquitted, your reputation will probably be ruined.

This last point suggests the only "attack" that I can think of that law enforcement could use successfully against this protocol. The police know in advance that if they arrest someone for transmitting an illegal file from their IP address, and if the defendant refuses to testify and the defendant's hard drive is encrypted, the state won't be able to get a conviction since there's only a 40% chance that the defendant was actually in possession of the file. However, if the defendant's life will be ruined by going to trial anyway, law enforcement could use this as a bludgeon to scare people away from even running the P2P protocol. Saying, in essence, "We're going to go out and do searches for illegal files to download, and we will file charges against any person whose IP address re-transmits an illegal file to us. Even though we know we won't be able to get a conviction, we'll ruin the lives of anyone we can identify in this way, so that's the risk that you're taking by installing this software, even if you yourself don't do anything illegal."

Whether this attack would be effective, depends on whether the courts would tolerate these kinds of "intimidation" prosecutions, where the law enforcement knows going in that they can never establish more than a 40% chance of the defendant's guilt (and hence no chance of conviction unless the defendant "cracks"), but they press charges anyway. I would call that an abuse of state power, and say that any prosecutor who knowingly pursues a losing case should be fired and compensation should be paid to the victim, but the courts might not see it that way, especially if the prosecutor finds a way to work the phrase "child porn" into every sentence.

Bennett Haselton writes: "The ongoing case of New York Times reporter James Risen -- whom the U.S. Department of Justice wants to force to testify against one of his sources for leaking classified CIA information -- brings up a more general question about the Fifth Amendment: Why are criminal defendants allowed to remain silent, but not third-party witnesses like Risen?" You'll find the rest of Bennett's story below.

In my last article about the Fifth Amendment, I tentatively made the argument that I couldn't see a principled reason why defendants should be able to refuse to answer the question of whether they committed the crime or not. My argument was that you're perfectly entitled to keep information private that is none of anybody's business -- you ought to be able to say, "It's none of your beeswax where I was on the night of the murder" -- however the fact of whether you committed the murder or not, is everybody's business, and I didn't see why the state shouldn't be able to make you choose between saying "Yes, I committed the murder," or "No, I didn't." (If you think the state would then try to convict you of lying if they were determined to railroad you, then my answer would be: If the state is going to railroad you anyway, they can convict you of the murder regardless of whether or not you say you're innocent, so that's not an argument in favor of the right to remain silent. I addressed this and several other counter-arguments in the original article.)

However, the argument I'm making this time is different. I'm saying that regardless of how you feel about the Fifth Amendment granting criminal defendants the right to remain silent, there's no consistent argument that would support giving defendants the right to remain silent, that should not also apply to third-party witnesses.

Here's the basic paradox: Suppose Bob may have committed a crime, and Alice is known not to be an accomplice but appears to have been a witness. If the courts ask both Bob and Alice the same question -- "Did Bob do it?" -- and both of them refuse to answer, then Bob's right to remain silent is protected under the Fifth Amendment, but Alice can be sent to jail -- despite the fact that Bob may have been guilty, but Alice is innocent! To me, that sounds crazy. (As explained at Findlaw and elsewhere, generally third-party witnesses can be required to testify in a way that defendants cannot. Witnesses can only plead the Fifth Amendment right against self-incrimination if they believe that by answering they could incriminate themselves. If it's generally agreed that a person is a third-party witness who was not guilty of any wrongdoing themselves, they can be forced to answer.)

In my first article arguing that defendants should not have the right to refuse to answer "Yes" or "No" as to whether they committed a murder, I wasn't sure of the conclusion, and I invited readers to submit arguments as to why I was wrong (I called the article "Seeking Fifth Amendment Defenders", after all, not "Let's Abolish The Fifth Amendment"). I'm still weighing the arguments coming in, and haven't decided what I believe. However, I'm more sure about the point I'm making this time: that there's no principled, consistent reason to give defendants the right to remain silent but not third-party witnesses. This is after talking to multiple lawyers, law students, and law enforcement officers and asking for any argument to the contrary.

There are two counter-arguments that I've received multiple times, that deserve a response:

• "The defendant's rights as a presumed-innocent citizen have to be protected until they're actually convicted." This is absolutely an important principle in a free society, but generally those "rights" refer to rights that free people have as well, and that are preserved even if you've been arrested -- for example, the right to free speech and the right to be presumed innocent, are all rights that the general public enjoys as well. Insofar as the Fifth Amendment says you have the right to refuse to answer questions about the particular incident that got you arrested, that's a right that innocent third-party witnesses don't have. Even in the most progressive societies, generally speaking criminal defendants don't get more rights than the public. Why should they get that special right in this case? Maybe there's an argument why, but you'd have to at least make that argument.

  So all the talk about protecting the rights of a criminal defendant, is valid, but it misses the point: Why shouldn't we also give the same rights to a third-party witness who we know is innocent?

• "It would be very difficult to prosecute many cases without compelling testimony from third-party witnesses." This is true -- particularly in the cases of reporters like Risen, who refuse to divulge their sources' identities, so all you have is the option of compelling the reporter to testify, when you don't even know the defendant's identity yet.

  However, that's really an argument that if you had to choose between having the ability to force defendants to testify, and having the ability to force third-party witnesses to testify, you would choose the ability to question third-party witnesses, simply because there are often more of them and sometimes they're available even when the defendant isn't. But that's not an answer to my question, which is: Is there an argument from moral or legal principles as to why the defendant is allowed to remain silent but third-party witnesses are not? Obviously, we don't actually have to choose between requiring defendants to answer and requiring third-party witnesses to answer. If we place more importance on giving courts the power to gather information, we should empower them to question third-party witnesses -- but wouldn't that argument also apply to requiring answers from the defendant? On the other hand, if we place more importance on individual liberty, we could grant the right to remain silent to defendants who are presumed innocent -- but shouldn't we grant that same right to third-party witnesses that we know are innocent?

  The argument that "it would be too inconvenient to prosecute cases if we couldn't require answers from third-party witnesses", is a bit like saying that if we had to choose between the courts having the power to force Eskimos to testify, and having the power to force non-Eskimos to testify, we would choose having the power to force non-Eskimos to testify, just because there are more of them. But obviously that's not a principled argument as to why we should be able to require answers from non-Eskimos but not from Eskimos.

Of course, many people's sympathy for James Risen might stem not from the fact that he's a third-party witness (to the crime of leaking information), but from the fact that his supporters are sympathetic to the cause of the anonymous leaker, who was exposing what he believed was a corrupt government. (Risen's book is subtitled "The Explosive Book on the Abuse of Power of the Bush Administration", always a way to get fans.) If James Risen knew the identity of someone who had raped and killed a child, but had gone to jail for refusing to name the suspect, probably a lot fewer people would be hailing him as a hero. But that hypothetical just makes the argument from the opposite direction: If we instinctively feel that third-party witnesses to a murder can be forced to answer questions about what they saw, why can't we make a suspect (who is, after all, a special case of a "potential witness") answer questions about what they know as well?

Our courts' current stance on the "right to remain silent" -- that it can be claimed by criminal defendants, but not by innocent third-party witnesses -- seems so absurd to me that I'm going to go out on a limb and say that I think it's an example of groupthink, an assumption that we accept because we're immersed in it, but that few people would ever come up with on their own if they were working from first principles about balancing liberty vs. the rights of the state.

Here's what I mean by that: Suppose you had been raised in a world that was identical to our own, except that our rights under the Fifth Amendment were inverted, so that innocent third-party witnesses could refuse to answer questions, but criminal defendants could at least be required to answer "Yes" or "No" as to whether they committed the crime. My hunch is that that, instead, would seem natural and sensible. You wouldn't scratch your head and say, "Wait, that seems wrong -- it should be the defendants who should have the right to remain silent, not the innocent witnesses."

By contrast, suppose you had been raised in the world that was identical to ours, except that portions of the First Amendment were inverted -- so that we could write any political arguments that we wanted to, but the government demanded prior approval of any fictional stories that we wanted to publish. I would hope that to many people, this would seem like a nagging contradiction, and over time more and more people would point out this inherent hypocrisy and call for restrictions on political thought to be abolished. That's because I think the First Amendment guarantee of free speech is something that can be derived from first principles about individual liberty -- if you want to write something and someone else wants to read it, and neither of you is harming anyone else in the process, it should be nobody else's business, period, full stop. And I just don't see a compelling argument from first principles in support of our current interpretation of the Fifth Amendment -- that we can make third-party witnesses answer questions, but not require the same of a criminal defendant.

Regardless, a court has already ruled that James Risen can be made to testify, and barring a successful appeal, he may choose to go to jail rather than reveal his source. The judge writing the ruling against Risen made an interesting slip-up, though, when he wrote:

The reporter must appear and give testimony just as every other citizen must.

But of course "every other citizen" does not have to give testimony -- if the defendant is ever identified, they won't have to. And that's the inconsistency that I find hard to explain.

Bennett Haselton writes with his take on a case going back and forth in U.S. courts right now about whether a defendant can be ordered to decrypt his own hard drives when they may incriminate him. "A Wisconsin defendant in a criminal child-pornography case recently invoked his Fifth Amendment right to avoid giving the FBI the password to decrypt his hard drive. At the risk of alienating fellow civil-libertarians, I admit I've never seen the particular value of the Fifth Amendment right against self-incrimination. So I pose this logical puzzle: come up with a specific, precisely defined scenario, where the Fifth Amendment makes a positive difference." Read on for the rest of Bennett's thoughts.

Wisconsin computer scientist Jeffrey Feldman was arrested on child pornography charges and ordered to give his hard drive decryption password to the FBI. He refused, claiming a Fifth Amendment right to refuse to hand over his password. A magistrate agreed with Feldman, then later changed his mind, but then on June 4th a judge blocked the order demanding that Feldman decrypt the hard drive.

So I will give up some civil libertarian cred and admit that, compared to, say, the free speech guarantees in the First Amendment, I've never seen what's so great about the Fifth Amendment "right against self-incrimination" -- not just as it applies to computer passwords, but in general. (Hereinafter I'm just going to refer to the Fifth Amendment right to remain silent as the "Fifth Amendment", even though there are other rights encapsulated in the Fifth Amendment, such as the right against double jeopardy.) I'm not debating the legal technicalities of the judges' decisions, since they take the "right against self-incrimination" as a given; I'm questioning the value of that "right" in itself.

Before you read any further, this is a pseudo-contest in which I'm soliciting answers in the form of a specific, precisely defined scenario in which you think that the Fifth Amendment makes a positive difference (i.e. that the outcome in a world with the Fifth Amendment, is better than the outcome in a world without the Fifth Amendment, even if you hold all other assumptions constant). If you disagree with everything I say, then the way to show that is to post a scenario that follows all the rules of the contest.

Now, obviously, I am not saying that the police ought to be able to beat information out of you. (The right not to be tortured by the police exists separately from the right to remain silent -- more on that later.) But the "right against self-incrimination" says two things that never made sense to me. The first is that you can refuse to answer a point-blank question asking whether you committed a crime, even if the question elicits no other information that ought to remain private. The second is that if you refuse to answer, a court cannot even consider that as a factor in determining the likelihood of guilt. The first seems dubious as a moral principle; the second actually departs from reality, for no good reason that I can see.

Take first the "right" to refuse to answer. Now, I agree that if the government asks you, say, "What books are you reading these days?", the correct answer is "None of your damn business." Nobody else has the right to know what's on your reading list. However, if a murder is committed, pretty much everyone agrees that it is the state's legitimate business (that is, everyone's business) whether you committed the murder or not. What's the philosophical argument that you shouldn't have to answer "Yes" or "No" if the police ask if you committed the murder?

Compare that to the collateral damage caused by, for example, a search warrant. If you accept that the police have a "right" to know whether your house contains a bloody knife used in a recent murder, then a search could turn up the knife, but there's always the risk that a search of an innocent person's house would penalize them by exposing their private information and belongings. By contrast, the direct question "Did you do it?" is like a "search" that targets only the evidence that is relevant to the case, and nothing else. A physical analogy might be the police scanning a neighborhood with a Geiger counter that detects only illegal weapons-grade plutonium; I'd be kind of OK with that. (Actually, being asked a question is even less invasive, since you don't have the option of refusing the search or the Geiger counter, but you have the option of refusing to answer a question and facing the consequences.)

Now, you shouldn't have to answer questions that are none of anyone else's business; if your alibi for the night of the murder is that you were at a somewhere you're embarrassed to mention, you should be allowed to say, "I didn't commit the murder, but I would prefer not to tell you where I was." But Fifth Amendment absolutists would say that you don't even have to answer the question of whether you committed the murder at all. That, to me, seems absurd. Isn't society entitled to know whether you committed the murder or not?

Perhaps people's discomfort with this reasoning stems from a feeling that the government has no right to interfere with your life at all, unless you've been convicted of a crime. But, rightly or wrongly, the police are empowered to make arrests, search people's houses with a warrant, chase after people feeling the scene of a crime, and take other actions even against people who haven't been convicted of anything. Law enforcement wouldn't be able to function at all without most of these powers, and while those powers can be and have been grossly abused, the solution is to limit those powers, not abolish them entirely. (That might be an argument for giving people the right to remain silent when questioned or arrested by the police, but still empowering judges to issue warrants requiring a defendant to answer a question, even if the answer could be "self-incriminating".) Compared to the possibility of getting arrested or having your house searched, the possibility of simply being required to have the exchange -- "You were walking away from the apartment after the murder, did you do it?" "No" -- seems like a pretty minor inconvenience. (Yes, if the police keep badgering and harassing me with the same questions, or if courts refuse to believe me and try to railroad me anyway, then that's a problem, but it's a separate problem -- we'll get to that in a second.)

Moving on to the second implication, which is that courts cannot weigh your silence in determining the likelihood of your guilt. This goes against the common sense that you would use in your everyday life. If you had two roommates, you knew one of them stole your laptop, you asked both where they were at the time, and one of them immediately told you where they were (giving a story that their friends could corroborate), and other refused even to answer "Yes" or "No" to the question of whether they stole it, what would you think? I'm not saying that a person's silence should ever be considered proof of guilt, but the likelihood of guilt is a probability question, which can be assessed using multiple factors, each of which individually might not be enough to prove guilt by itself. Is the second roommate's silence relevant to your estimation of their guilt? Of course it is. If you would use that factor in your own reasoning, why shouldn't a court? (And in fact, your silence can be considered relevant in a civil lawsuit, just not in a criminal case.)

Now, there are times when the government's evidentiary standards should deviate from common sense. For example, if you find evidence of an affair by snooping in your spouse's email, you may feel guilty about snooping, but you're certainly not going to forget what you found, just because the "evidence" was obtained improperly. The state, on the other hand, is mandated to "forget" any evidence that's obtained in violation of a defendant's rights (for example, if the police break in and search a residence without a warrant) -- that evidence cannot be used in a trial. However, in that case the bar on improperly obtained evidence serves a clear purpose -- it removes any incentive for the police to obtain evidence by breaking and entering. There's no obvious similar reason why a person's refusal to answer a question shouldn't be considered relevant to the likelihood of their guilt.

For these two reasons, I can't think of a precisely defined scenario in which the Fifth Amendment makes a positive difference, i.e. the outcome in the case where the Fifth Amendment does exist, is better than the outcome in a hypothetical world where the Fifth Amendment does not exist, if you hold all other assumptions constant.

My own high school civics teacher gave the example of an overzealous prosecutor determined to convict an innocent defendant of murder, as an example of the importance of the Fifth Amendment. I asked why, even without Fifth Amendment rights, the defendant couldn't just say that they were innocent. "Aha!" said the teacher, mimicking the evil tone of a corrupt prosecutor, "We know you're lying, now we'll convict you of murder and for lying to the court!"

This was the first of many "scenarios" that I've heard supposedly illustrating the benefits of the Fifth Amendment, that didn't hold up under scrutiny. For the government to convict you of lying about not committing the murder, they would also have to convict you of the murder, and if they can convict you of murder, then you're already screwed anyway, regardless of whether they also convict you of lying about being innocent. Now, obviously we should stop corrupt prosecutors from being able to railroad people, but that's a separate problem. The right to remain silent doesn't do you much good if the government is going to forge enough "evidence" (or ignore the lack of evidence) to convict you of murder anyway.

So what I'm looking for (email me below, and also post in comments) is a precisely defined scenario that meets all of the following criteria:

1. The outcome in the world where we do have the Fifth Amendment, is clearly different from the outcome in a hypothetical world where the Fifth Amendment does not exist, even while holding all other assumptions constant. (So the "corrupt overzealous prosecutor" scenario fails that test, because if you assume the government can convict an innocent person of murder without regard for facts or evidence, they can do that even if you refuse to testify.)

2. The outcome in the "Fifth Amendment" world is better than the outcome in the "no Fifth Amendment" world. We can be very permissive about what is considered "better", but there are some limits -- one person, for example, gave me an example of a guilty person who used the Fifth Amendment to avoid giving testimony that might contradict evidence that is discovered later. I pointed out that giving a guilty person a chance to avoid tripping himself up was hardly a good thing, to which he replied, "Oh... right."

3. The "benefit" can't be something that benefits all suspects equally, whether they're innocent, guilty of violating a just law, or guilty of violating an unjust law. Several people have brought up to me the example of the McCarthy hearings, when those being questioned cited the Fifth Amendment as the basis for refusing to answer red-hunt questions.

   Now, most people today remember the McCarthy hearings as an example of grotesque government overreach, and anything that hampers enforcement of an unjust law would be viewed positively in that light. The problem with this defense of the Fifth Amendment is that if it hampers all law enforcement efforts equally, then you might as well just roll a dice every time a suspect is arrested, and let them go if it comes up a 6. Clearly, this is a "limit on government power", which would benefit suspects who are innocent, as well as benefiting people who are guilty of violating an unjust law (however you define that). But since it would "help" all other criminal defendants, too, most people would consider it a silly idea. A defense of the Fifth Amendment along those lines would have to show how it disproportionately benefits people who are innocent, or who have violated an unjust law. (Your argument could depend on what you consider an "unjust law", but you would have to at least make the argument.)

4. The "benefit" can't be something that exists separately from the Fifth Amendment right against self-incrimination. I've had it suggested to me that without the Fifth Amendment, the police would just beat people into confessing. But of course the right not to be beaten by the police is separate from the right to remain silent.

   The easiest way to see this is to consider cases where the Fifth Amendment right to silence does not apply. For example, if the government grants you immunity, then your answers cannot incriminate you, but since nothing you say will incriminate you, the government can then force you to answer the question or go to jail for contempt of court. (There is actually no literal "right to remain silent"; it's a "right against self-incrimination". So take away the possibility of self-incrimination, and you have to talk.) This is a controversial exception, but it's useful for this discussion because it demonstrates that certain rights exist separately from the right against self-incrimination. Obviously, even if the government grants you immunity so that you have to answer questions or go to jail, they still can't torture you for information.

   Similarly, someone suggested that without the Fifth Amendment, the police could just keep on questioning you as a means of detaining you without making an arrest. But, separately from the Fifth Amendment right to silence, there are limits (albeit fuzzy ones) on how long the police can detain you if they don't arrest you. (And then once you're arrested, limits on how long they can hold you without charging you.) As Flex Your Rights (with multiple lawyers on their board) says, "If you choose to challenge a detention, your lawyer will have to argue that police kept you longer than necessary under the circumstances." That's an important curb on police power, and that could be apply if the police keep asking you repetitive or irrelevant questions just as a means of holding you without arresting you.

   So again, even if the government grants you immunity so that you have to answer, they still can't keep asking you the same questions as a means of detaining you indefinitely. That means that right exists separately from the right against self-incrimination.

5. If the argument has major implications for the competency of the courts generally, then address those implications. This is not really a "pass/fail" criterion, because implications can be open-ended.

   I'm thinking in particular of the following argument: Without the Fifth Amendment, the police might adopt a strategy of arresting a suspect and asking him questions in such a way to make him flustered and contradict himself, even if he's innocent. That testimony might then be used to convict him.

   Now, this scenario passes criterion #1 above (with the Fifth Amendment, suspects can clam up and avoid this trap). It also obviously passes criterion #2 - innocent suspects remaining free is better than innocent suspects going to jail. I do think it might fail criterion #3 -- if innocent suspects become flustered and contradict themselves, that should happen at least as often for guilty suspects, too, who are after all lying.

   But there's actually a bigger problem here. It's well known that innocent people can become flustered and contradict themselves under prolonged grilling. If the police, judges, and juries, are so incompetent at evaluating evidence that they would convict you because you contradicted yourself while being questioned about a murder, then that is the real problem -- that the state simply cannot evaluate evidence competently. By giving people a Fifth Amendment right to remain silent under questioning, you've just applied a band-aid by exempting one type of evidence from being used to railroad an innocent person. You haven't solved the competency problem as it applies to circumstantial evidence, unreliable eyewitness testimony, the Prosecutor's fallacy, compromised physical evidence, untrustworthy witnesses, and a host of other potential sources of error.

   So yes, this is a logically consistent defense of the Fifth Amendment -- but realize that it implies we're living under a criminal justice system that can't find its ass with both hands, and perhaps that's the larger problem that should be addressed.

So. I'm interested in whether there is a precisely defined scenario that passes all of the criteria above. You can email me at Bennett at peacefire dot org and put "Fifth Amendment" in the subject line, and also post your suggestion in the comments.

Since I might not be by my computer when the story runs, I'm deputizing our readers to call out FAIL codes for certain responses that are missing obvious points. If the poster is being a dick, then be a dick when calling FAIL codes on them; if the person is participating constructively in the discussion and at least trying to solve the posed problem, then still use the FAIL codes if they apply, but try not to be a dick. Your arsenal:

• FAIL0 -- not specifying a scenario. This does not apply to informative comments; someone might have something useful to say even if it's not an answer to the challenge posed by the article. However if someone starts spouting off trashing the whole article and thinking that they have negated its conclusion, then unless they actually specify a scenario, call them out with a FAIL0. "If you ever bothered to read your American history, you would understand that the Fifth Amendment was adopted as an important bulwark agai--" FAIL0. "Bennett never went to law school so he clearly isn't qual--" FAIL0. "This article has so many errors that I scarcely know where to--" FAIL0. You need to pose a scenario or you haven't answered the question.

  Also, anything with "Go and read... [some third-party source]" without specifying a scenario is a FAIL0. It doesn't take more than a few sentences to summarize a scenario.

• FAIL1 -- not explaining how the scenario gives different outcomes depending on whether we have a Fifth Amendment or not. (I keep hearing the example of the police beating a suspect to extract a confession; like I said, the right against torture whether you have the Fifth Amendment right to silence or not.)

  Or suppose you assume the police would lie and say, "We never laid a hand on him, but he signed the confession anyway." Well, even in a world with the Fifth Amendment, clearly if the police are going to beat you into submission and lie about it, they can still just beat you into submission and say, "He voluntarily waived his Fifth Amendment rights without us touching him, and confessed." For that matter, if the police are willing to lie, they can lie about your confession even if you don't confess at all. In either case, it's not clear that the Fifth Amendment would affect the outcome if you hold all other assumptions constant about whether the police are willing to lie, how much the suspect can hold out under coercion, etc.

• FAIL2 -- not explaining why the outcome in the Fifth Amendment case is better. (So no, "It gives a guilty person time to come up with an alibi.")

• FAIL3 -- the alleged "benefits" of the Fifth Amendment apply equally to the innocent and guilty, or disproportionately favor the guilty. Yes, it's harder for the state to get a conviction if you're allowed to remain silent and no inferences can be made from that, and yes, that will benefit some innocent people who refuse to speak to the government as a matter of deeply held principle, but it's going to benefit guilty people at least as often who just don't want to be caught in a lie. As I said, if you want to benefit all criminal defendants equally, you could just roll a dice and acquit whenever it comes up a 6. In terms of helping the innocent vs. helping the guilty, the right to silence scores even worse than that, since it disproportionately benefits the guilty (who might make a mistake while coming up with an alibi).

• FAIL4 -- confusing a different "right" that is separate from the Fifth Amendment right against self-incrimination. An easy test is that if you still have certain rights even when your right against self-incrimination does not apply because you've been granted immunity, then those rights must exist separately. (e.g. the right not to be tortured, and the right not to be held indefinitely without a trial.)

In addition, feel free to call out SUPERFAIL for any comments along the lines of:

• "This article has so many false premises that I scarcely know where to begin. I would have cited at least one example to support my point, but I was masturbating to the sound of my own superbly polished writing skills and I just came all over the keyboard."
• "Dammit Bennett! I am a [Supreme Court justice / federal prosecutor / law professor / frequent TiVo'er of Law And Order: Mattress Tag Removal] and you are writing about things you know nothing about! There is a reason we don't do things the way you're suggesting! In fact there's a very good reason we don't do things that way, and I'm going to tell you what it is: It's because that's not the way we do things."
• "I read as far as the second syllable of the fourth word and then stopped reading. The problem must be with the article, because the problem couldn't possibly be with my oh hey look a cloud."

So perhaps someone will email me a scenario illustrating the benefits of the Fifth Amendment that I haven't considered here. At least, I hope so. It would be disturbing to think that we've built a whole legal edifice in the United States (and many other countries) on a "right" that has no rational basis.

Unfortunately, even if such a rational defense of the Fifth Amendment does exist, I still believe that many of the defenses of the Fifth Amendment that people have been giving me, are flawed, for the reasons listed above. (If people ever thought about it for one minute, wouldn't they realize that the right not to be tortured by the police is logically distinct from the right to refuse to answer a question about whether you committed a crime?) If large numbers of people believe the Fifth Amendment is sacred without ever thinking about whether it makes sense, that's a broader problem. What other cherished beliefs that we hold, that we don't think carefully about?

nonprofiteer writes "A Minnesota man violated a restraining order obtained by his ex-girlfriend by blogging about her mental health and sexual issues, and sending links to posts on the blog to her family, friends, and co-workers. The judge then extended the restraining order by 50 years, ordered the guy never to write about his ex on the Internet and ordered him to delete the blog he created. Even though there was no evidence that what he had written was false, the judge said the ex-girlfriend's 'right to be free from harassment' outweighed the guy's 'right to free speech.' 'I believe it's rare, if not unprecedented, for a court to order an entire blog deleted,' says technology law professor Eric Goldman."

Not that it's the first city to enforce a youth curfew, and not that kids on a crime-spree is the only variety of moral panic offered as a rationale, but Philadelphia is cracking down through increased enforcement of a youth curfew law after children and teenagers attacked two people in the Center City district — attacks which, according to police, were coordinated via text messaging.

Hugh Pickens writes "Judge Roger Hunt has unsealed the confidential agreement between Righthaven and the Las Vegas Review-Journal that has allowed Righthaven to sue over more than 250 charities, impoverished hobby bloggers, reporters, and the newspaper's own sources, for $150,000 each in damages and forfeiture of the sites' domain names, and the contents of the agreement could end up being ruinous for Righthaven's campaign of copyright lawsuits. The problem is that Stephens Media, the company that owns the Las Vegas Review-Journal, didn't actually assign any of the rights related to copyright to Righthaven except the right to sue — and that has been found in Silvers vs. Sony Pictures to be illegal under case law. In other words, none of the important things that come with a copyright — such as the right to make copies of a work, or distribute it, or make 'derivative works' — were handed off to Righthaven. Only the right to sue was given, and that makes the copyright transfer bogus, argue lawyers for the Democratic Underground, which is being sued for one of its website users posting the first four paragraphs of a 34 paragraph story."

Presto Vivace writes "Reporting for Computer World, Grant Gross writes that the RIAA is asking the FCC not to make the net neutrality rules so strict that they 'would limit broadband providers' [flexibility] to "address" illegal online file sharing.' It seems the RIAA is unclear on the concept of the Fourth Amendment. 'The FCC should not only avoid rules prohibiting ISPs from blocking illegal file trading, but it should actively encourage ISPs to do so, the RIAA said. ... Other groups called on the FCC to stay out of the copyright enforcement business. If ISPs are required to check for copyright infringement, they could interfere with legal online activities, said six digital rights and business groups, including Public Knowledge, the Consumer Electronics Association and the Electronic Frontier Foundation.'"

I Don't Believe in Imaginary Property writes "Thanks to a recent ruling (PDF) by the US Court of Appeals for the Third Circuit, corporations now have a right to 'personal privacy,' due to the application of a carelessly worded definition in the Freedom of Information Act. FOIA exempts disclosure of certain records, but only if it 'could reasonably be expected to constitute an unwarranted invasion of personal privacy.' But in its definitions, FOIA makes the mistake of broadly defining 'person' to include legal entities, like corporations. The FCC didn't think that 'personal privacy' could apply to a corporation, so they ignored AT&T's claim that releasing data from an investigation into how AT&T was overcharging certain customers would violate the corporation's privacy. The Third Circuit thought that the FCC's actions were contrary to what the law actually says. So now the FCC has to jump through more hoops to show that releasing data on their investigation into AT&T's overcharging is 'warranted' within the meaning of 5 USC 552(b)(7)(c) before it can release anything."

A Florida attorney, Cheney Mason, made the mistake of offering a million dollars on a TV show to anyone who could prove that his client, Nelson Ivan Serrano, was able to travel across two states and kill four people in the time that prosecutors had alleged. Having a lot of free time, South Texas College of Law graduate Dustin Kolodziej decided to take Mason up on his dare. Dustin traveled the route prosecutors say Serrano took, completed the trip under the time allowed, and videotaped the whole process. He is now suing Mason in the federal district court — because the attorney doesn't want to pay, saying that his statement was just a joke.

Frequent Slashdot contributor Bennett Haselton writes "A newspaper copies a rant from a girl's MySpace page and reprints it as a 'Letter to the Editor' without her permission. Could the girl sue for copyright violation? This question provoked much more disagreement among legal experts than I expected." Read on for the details.
In 2005, a college student published a rant on her hometown on her MySpace page, beginning with, "The older I get, the more I realize how much I despise Coalinga." Her former high school principal found the rant while browsing her MySpace page (what?), and forwarded it to the town newspaper, which published the "rant" without the girl's permission, signed with her full name, as a letter to the editor (what?). The resulting fallout included death threats against the family and the closure of the 20-year-old business owned by the girl's father. Four years later, a judge ruled that the girl could not sue for "public disclosure of private facts" because the MySpace post was not private. But what about a copyright claim?

Normally the "damages" for unauthorized copying of a MySpace post would be so close to zero, that a moral victory in court is all you could get. But if her father's business lost so much money that it had to close, could the family sue for those losses resulting from the copyright infringement?

It is perhaps indicative of the mathematician/programmer mindset, that after reading about a school principal downloading a rant form a former student's MySpace page and arranging with a friend to "out" her in the town newspaper, the first thing that popped into my head was: "copyright infringement." But copyright law has a nice binary, one-or-zero, they-did-it-or-they-didn't quality that resonates with left-brainers. As several lawyers said to me while I was asking them questions for this story, the girl would probably have a better claim for "intentional infliction of emotional distress" and for "false light publicity" — but those rights of action are more nebulous concepts in law, and the trial outcome would depend more on the judge's personal opinions and on the history of similar rulings in the state. Copyright law is, at least in theory, standardized in federal law and laid out in black and white, so that even non-lawyers have a chance of understanding it. But I still wanted to ask some lawyers for their opinions.

This started for me as an investigation of copyright law as it applied to these situations. (I personally know a few people whose content has been reused on other people's websites or e-mail lists with varying degrees of legality, and I'd like to be better informed about what to tell them.) But it ended up becoming a case study in how to interpret conflicting opinions from different lawyers.

There were some notions that I had completely wrong about copyright law, and the lawyers that I queried pointed those out unanimously. On the other hand, there are some questions where the legal community is divided on the correct answer, and you might pick one answer and a lawyer with the opposite point of view would tell you you were "wrong," when a different lawyer might tell you that you were "right." Whenever lawyers tell me something, and especially if they tell me that I should listen to them because they're a lawyer and I'm not, I always ask the same thing: If I were to ask this question of 10 different lawyers, would at least 8 out of them of them agree? If the answer is No, then — while each lawyer is still be entitled to their opinion, it is just an opinion, not a settled fact within the profession. In fact, I wouldn't even trust the results if I asked 10 lawyers who were all in the same room; my general impression is that when I ask lawyers a question who are in the room together, they agree more frequently than if I ask them a similar question separately, perhaps consciously or subconsciously out of a desire to make it look as if the "expert consensus" is stronger than it really is. The fairest test would be to ask 10 lawyers separately and compare their answers.

So, I posted a notice to Peter Shankman's Help A Reporter Out service, asking for legal experts to comment on the copyright issue. HARO is a nifty way to get your name in print once in a while if you're an expert on any subject; you can sign up for the mailing list as a "source," and then reporters send queries to HARO that are redistributed to the mailing list asking for experts on a particular subject. (The very first day after I signed up last September, I got featured as a "web filtering expert" in an article in an adult industry trade magazine, whereupon I'm sure my mother sent the link to all of her friends right away.) But I was interested in using it in a different way from most reporters. Usually, reporters posting a query are looking for multiple expert opinions that they can synthesize into a consensus answer for their story. I was posting my query to find out whether any consensus even existed.

The questions I put to the HARO list were: Could the girl bring a lawsuit against the paper for violating her copyright? Is it something she could even do in Small claims court to save time and money? And as for damages, I knew that in cases of copyright violations for works not registered with the Copyright Office, plaintiffs were usually limited to actual damages. But could she claim the losses to her family's business as "actual damages," since the harm was caused as a result of the copyright violation?

Before reading any further, you might want to consider how you would answer these questions. Then you can see whether your answers agree with those given by the experts.

Pencils down. First, the things that all lawyers agreed I got completely wrong:

• Virtually every lawyer who responded said that you could only bring copyright claims in federal court. This advice passed the 8-out-of-10 test, as well it might, since this rule is laid out in the U.S. Code.
• Second, to bring a copyright claim at all, you first have to register your work with the Copyright Office by mailing it to them with a $35 fee. (There was some inconsistency in the answers here, but the consensus seems to be: You own the copyright on something as soon as you create it, but you can't file a copyright lawsuit until after you've registered your work. However, once you've registered, you can then go back and sue for copyright violations that took place before the registration date. If you register more than 90 days after the date of first publication, you can only sue for actual damages — your monetary losses, or the infringer's ill-gotten gains — for violations that took place before you registered the work. But if you register within 90 days of first publication, you can sue for statutory damages and attorney's fees, even for violations that took place before you registered.)
• Third: Suppose the court did find that the girl's copyright was violated. Can the harm to her father's business be counted under actual damages? Well, first there is the issue of whether she can consider these as damages at all, since they were to her father's business, not to her. As I put it to Paul MacArthur, Professor of Journalism and Public Relations at Utica College: If X violates the rights of Y but the bulk of the harm is done to Z, can Y sue, even though they weren't the main victim? Professor MacArthur, said: "Generally, no. But, perhaps, because it impacts her family's income, she can claim a loss."
  
  But the real difference is that harm indirectly resulting from the copyright infringement is not legally the same as actual damages, and here's where the different experts agreed. Said one legal expert who asked not to be identified by name:

  "In the fact pattern for this case, you have to know that the damage to the family is considered 'consequential' or 'indirect' damages - not actual damages. In a copyright suit, actual damages are the financial losses incurred as a result of lost profit from your work."

  Joshua King, an attorney with Avvo.com, a site that provides attorney ratings and other services to help consumers navigate the legal profession, agreed: "Even if a court were to consider the father's lost business, those damages would be considered consequential damages." Three other lawyers who responded all said essentially the same thing.

So those were the points where the lawyers agreed. But what about a fair use defense? From years of reading Copyright FAQs, you probably know that the fair use doctrine allows third parties to use portions of a copyrighted work without the copyright owner's permission under some circumstances. As Mike Plumleigh, an intellectual property lawyer in California summarized it for me, the four factors that determine whether a use qualifies as fair use are:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantially of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Although, whenever I read a law or legal text earnestly claiming that such-and-such depends on this other list of factors, it seems ironic that the list is intended to "clarify" the meaning of the law, when the list items are often just as open to ambiguous interpretation as the original item they were intended to clarify. The acid test of whether a rule has been "clarified" is how much experts agree on how to interpret the rule in a given situation; if experts can't agree to interpret it, then it's no more "clear" than it was before.

That seemed to be the case in this instance, where I got a lot of conflicting answers from the attorneys who responded. Joshua King said: "The newspaper may well have a fair use defense even though they published the whole thing." Mike Plumleigh agreed with the likelihood of the "fair use" defense and gave a longer explanation (referring to his numbered list above):

"Not to go into detail of how a court might rule on the analysis, but here's my quick take:

• Under (1), the use could be found to be for criticism, comment and (by the paper) news reporting (and the cases also consider 1st amendment factors under this one)
• Under (2) and (4) the original work was not intended for commercial purposes, had little apparent market value, and is more a short statement of fact/opinion rather than having significant creative or other "authorship" elements.
• Under (3), all of the "work" seems to have been reproduced, but this factor would likely be outweighed by the others.

I haven't seen the published letter or the original journal post, so my analysis above might be somewhat different if what was copied was a longer essay about life in Coalinga or similar. Nonetheless, the market value/effect would still be an issue, and the criticism/commentary purposes could still tip in favor of fair use."

Venkat Balasubramani, a Seattle copyright attorney, cast a vote-with-caveats for the fair use defense as well:

Fair use is always tough to predict and fact-intensive. On the one hand, there's little commercial value in the letter. Also, the fact that she published the letter in MySpace may itself be newsworthy and the newspaper is entitled to publish at least portions of the letter. Overall, her copyright claims are weak, damages minimal, and the newspaper's fair use arguments fairly strong. (Caveat again the fair-use is fact-intensive.)

In the other corner, Phil Marcus, a negotiation and intellectual property lawyer in Baltimore, commented, "I do not think 'fair use' includes using a person's words to get them run out of town." Professor MacArthur said, "There is no way what the paper's use of the student's writings qualifies as fair use." I asked if the other factors wouldn't weigh in favor of the newspaper, since there was no apparently commercial market for the essay, but Professor MacArthur disagreed:

"The nature of the copyrighted work as a temporarily published work that the girl choose to pull off of her MySpace page. She has the right to remove her writings from her MySpace page and no one has the right to continue to distribute those writings in their entirety without her consent. So, number 2 is her favor (really, issue number two looks more at non-published vs. published, with non-published being afforded more protection).

In terms of number 4, the claim could be made the that there is an impact on the market. These are her personal writings. Perhaps, in the future, she wants to put them on her own web site and make a profit via Google's AdSense or via a pay for content web site. The newspaper, by publishing her writings, may have lessened her ability to charge for this piece/monetize it. I'm not saying she is going to do this, but this issue is something for a judge/jury to decide."

Stephen Roe, an attorney with Lathrop Clark in Virginia, was even-handed but leaning against fair use:

"Were she to sue for copyright infringement, I think the court would be faced with a difficult decision. Were I defending the newspaper and principal, I would certainly assert fair use, in that the purpose was for news reporting and comment and criticism. However, they would appear to have a problem, in that the girl's letter was not submitted BY HER as a letter to the editor, and thus was falsely attributed to her as a letter to the editor... A court may be willing to find that the principal and the paper were NOT within the fair use safe harbor, especially if she could establish ill intent. Were I hearing the case, I would be very sympathetic to her situation, especially given the relationship between the principal and the editor and the apparent mis-attribution."

So, three votes on either side. I myself would probably argue on the side of the fair use defense against a pure copyright violation, because the girl was not selling her work, and the principal was trying to convey the fact of the girl's dislike for Coalinga (which is inappropriate conduct for a high school principal, but not against the law).

I think the lesson here is that even though many Internet copyright controversies depend on what is protected under "fair use," that is much less clearly defined than one might hope. If someone blatantly lifts content from your home page and posts it on their own website for commercial gain, that's a copyright violation, but what if they only post excerpts for the purpose of "commenting" on it? What if you posted something snarky on your blog, and later took it down, but someone else archived a copy on their blog in order to show the world what a dick they thought you were? You may not know offhand whether these actions are protected under "fair use," but it would be nice to think that the answer exists, and that a lawyer could steer you towards it. No such luck in some situations.

Or, perhaps the more general lesson is that when seeking advice from lawyers, it's worth getting multiple opinions. Sometimes if a lawyer tells you, "I'm sure that I'm right about this, because I'm a lawyer," they really are right, as in several of the points above where they set me straight. But not always. And the way to find out is to ask four or five different lawyers and see what they say. I'm a member of a cheap legal insurance plan ($20/month) that entitles to me to call "in-network" lawyers for a few minutes of advice each on a given legal question. The provider probably thinks of this as a cheapo option for people who can't afford real legal consultations, but I think that 10 minutes of advice from 6 different lawyers, is enormously more valuable than one hour of advice from one lawyer, because then you can categorize their advice into things they agree on (which are likely to reflect "the law") and things they don't agree on (which are likely to be just their opinions).

If more legal debaters recognized this distinction, perhaps many bitter legal disputes outside the courtroom could be resolved by agreeing to disagree. Prior to a court ruling, "the law" is just defined as the consensus among legal experts on how to interpret a statute. So if experts are divided on a given question, then by definition there is no consensus and hence no "law," so what are they arguing about?

NewYorkCountryLawyer writes "Last August I reported that the US Court of Appeals for the 2nd Circuit had defeated the MPAA's attempt to label as copyright infringement a cable operator's storing video for later reuse at the request of its subscribers, in Cartoon Networks v. CSC Holdings. The MPAA has petitioned the US Supreme Court to review that holding. According to a recent interview with Gigi Sohn of Public Knowledge, the High Court has not yet decided whether to grant the MPAA's petition seeking review. What I found odd about the 2nd Circuit decision (PDF) is that (a) although 'fair use' was the most logical defense to be employed in view of the Supreme Court's holding in SONY Betamax, upholding a VCR's 'time shifting' of a broadcast television show as a 'fair use,' the defendant in Cartoon Networks has stipulated to waive 'fair use,' and (b) although the easier legal theory for plaintiff to prove would have been secondary, rather than primary, copyright infringement (i.e. Cablevision's encouraging and inducing its customers to make unauthorized copies), the MPAA has stipulated to waive that line of attack. I.e. neither plaintiffs nor defendants seized the 'low hanging fruit.' In her interview, Ms. Sohn discusses the fair use defense, but I'm not sure why she does, since as I recall the defendant has waived it."

jd writes "In startling revelations, convicted terrorist Ali Saleh Kahlah al-Marri admitted that Al Qaeda used public telephones, pre-paid calling cards, search engines and Hotmail. Al-Marri 'used a '10-code' to protect the [phone] numbers — subtracting the actual digits in the phone numbers from 10 to arrive at a coded number.' The real story behind all this is that the terrorists weren't using sophisticated methods to avoid detection or monitoring — which tells us just how crappy SIGINT really is right now. If the NSA needs to wiretap the whole of the US because they can't break into a Hotmail account, you know they've got problems. FindLaw has a copy of al-Marri's plea agreement (the tech-related information begins on page 12), and the LA Times has further details on his case."

An anonymous reader writes "Pages at ireport.com and extortionletterinfo.com have been documenting and researching the activities of George P. Riddick III, previously known for his lawsuits against IMSI and Xoom at the turn of the century. In 2007 he issued a largely-ignored press release claiming the majority of clip art online infringes a copyright and has ranted about how Microsoft and Google are stealing from him. In recent months, he's apparently made a business model of going after web site operators who were using clip art they believed to be legally licensed or public domain, telling them they're infringing clip art collections he hasn't offered commercially in years and making outrageous settlement demands. He seems to have tested the waters on this some years back, but emboldened by the passage of the PRO-IP act, he's gone aggro with it. A few dodgy anonyblogs had popped up to 'out' him as a copyright abuser, but these recent ireport.com and extortionletterinfo.com reports go much deeper in documenting and researching Riddick's recent one-man campaign to be the RIAA of clip art."

carusoj writes in with NetworkWorld reporting from a panel at Harvard last week. It concluded that employee non-compete agreements have stifled tech startup development in Massachusetts, where the pacts are aggressively enforced, but failed to hold back the tech industry boom in states like California, where they are mostly unenforceable. We've discussed non-competes often here in the past; Techdirt made much the same point a year and a half back.

I Don't Believe in Imaginary Property writes "While there have been shifting reports about McCain's view on warrantless wiretapping, nothing could be clearer than the latest comment by McCain adviser Doug Holtz-Eakin, who said, 'We do not know what lies ahead in our nation's fight against radical Islamic extremists, but John McCain will do everything he can to protect Americans from such threats, including asking the telecoms for appropriate assistance to collect intelligence against foreign threats to the United States as authorized by Article II of the Constitution.' Article II, of course, is what Bush has argued gives the President virtually unlimited power during war, and McCain has already voted in favor of Telecom Immunity, though he sometimes mentions, to those asking for accountability, wanting to hold hearings about what the telecoms did."

NewYorkCountryLawyer writes "The RIAA has been ordered to turn over its attorneys' billing records by March 26, 2007, in Capitol v. Foster in Oklahoma. The 4- page decision and order, issued in connection with the determination of the reasonableness of Ms. Foster's attorneys fees, requires the RIAA to produce the attorneys' time sheets, billing statements, billing records, and costs and expense records. The Court reviewed authorities holding that an opponent's attorneys fees are a relevant factor in determining the reasonableness of attorneys fees, quoting a United States Supreme Court case which held that 'a party cannot litigate tenaciously and then be heard to complain about the time necessarily spent by his opponent in response' (footnote 11 to City of Riverside v. Rivera)."

spge writes "Now that Jeanson James Ancheta has plead guilty to spamming, computer misuse and fraud, it might be worth scanning through the original indictment document, which includes a step-by-step account of how someone goes about setting up an adware business, manages botnets and (thankfully) gets caught." From the BBC article: "'Mr Ancheta was responsible for a particularly insidious string of crimes,' said a spokesman for the US attorney's office in Los Angeles, Thom Mrozek. 'He hijacked somewhere in the area of half a million computer systems. This not only affected computers like the one in your home, but it allowed him and others to orchestrate large-scale attacks.'" We discussed Ancheta's arrest back in October of last year.

carre4 writes "Lawyers in California have filed a class-action lawsuit against Sony and a second one may be filed today in New York. The lawsuit was filed Nov. 1 in Superior Court for the County of Los Angeles by Vernon, CA attorney Alan Himmelfarb. It asks the court to prevent Sony from selling additional CDs protected by the anti-piracy software, and seeks monetary damages for California consumers who purchased them. The suit alleges that Sony's software violates at least three California statutes, including the "Consumer Legal Remedies Act," which governs unfair and/or deceptive trade acts; and the "Consumer Protection against Computer Spyware Act," which prohibits -- among other things -- software that takes control over the user's computer or misrepresents the user's ability or right to uninstall the program. The suit also alleges that Sony's actions violate the California Unfair Competition law, which allows public prosecutors and private citizens to file lawsuits to protect businesses and consumers from unfair business practices. EFF has released a list of rootkit affected CD's and Slashdot user xtracto also has a list."

msh210 writes "The AP has reported (with additional information from KMOX-AM) that the Missouri Dept. of Transportation will be teaming up with a private company to track in-use cell phones on Missouri highways and state roads in an effort to monitor traffic flow. Individual information will not be stored, they say -- only the aggregate will be studied, using "sophisticated" math. (See also findlaw.com's commentary on privacy concerns. "

Neil Wehneman writes "Via Media Law Prof Blog, it is reported that the FCC has reclassified broadband service as an "information service" instead of "telecommunications". This, among other things, gives the Baby Bells the same gift the cable companies got with Brand X : the right to stop opening their lines to competitors."

CaptainEbo writes "In Bridgeport Music v. Dimension Films, the Sixth Circuit Federal Court of Appeals eliminated the 'de minimis' exception for copyright in sound recordings, which allows artists to sample small amounts from earlier work to produce new creations. The defendants in this case have now asked the Supreme Court to intervene. Also involved in this suit are civil rights vetrans from the Brennan Center for Justice and the Electronic Frontier Foundation. Both have filed an amicus brief urging that the Sixth Circuit decision be reversed. 'The Court of Appeals decision to target trivial borrowing from sound recordings isn't supported by copyright law or sound policy,' says Marjorie Heins, coordinator of the Free Expression Policy Project at the Brennan Center. 'It ignores the history and purpose of the Copyright Act and stifles creativity.'"

DrJimbo writes "Groklaw has an explanatory article covering the Computer Fraud and Abuse Act (CFAA) in layman's terms. The article discusses legal precedents that might make it illegal to access much of the internet. The article is a response to a claim by SCO that IBM violated the CFAA by downloading GPL'ed software from SCO's public HTTP and FTP sites."

mbstone writes "The U.S. Court of Appeals for the D.C. Circuit has upheld [pdf] the settlement reached between Microsoft and the U.S. Justice Department in the antitrust case filed in 1998, beating back a challenge by Massachusetts, the only state that didn't settle. Many critics, of course, believe that Attorney General John Ashcroft took a dive on the case which was originally filed by former Clinton Administration Attorney General Janet Reno."

Rydia writes "In light of the California Legislature's amendment and consideration of AB 1792, regarding violent video games, Findlaw's Vikram Amar (UC-Hastings) and Alan Brownstein (UC-Davis) have written an editorial on a child's vs. an adult's protections under the first amendment, and the right of the state to introduce legislation in this vein. It is welcome to see the topic discussed on its own legal merits, in lieu of actual law, and not the moralistic turf both sides of the debate have attempted to claim as their own."

Rydia writes "In light of the California Legislature's amendment and consideration of AB 1792, regarding violent video games, Findlaw's Vikram Amar (UC-Hastings) and Alan Brownstein (UC-Davis) have written an editorial on a child's vs. an adult's protections under the first amendment, and the right of the state to introduce legislation in this vein. It is welcome to see the topic discussed on its own legal merits, in lieu of actual law, and not the moralistic turf both sides of the debate have attempted to claim as their own."

Anonymous Coward writes "The Globe & Mail has a story about an Ontario, Canada man who is being sued, along with his father and brother, by Yahoo under the CAN-SPAM Act. The Yahoo suit claims that Eric Head, along with his father and brother, were sending out millions of spam emails per month, as well as compiling lists of email addresses to sell to other spammers. Eric's company, Gold Disk Canada Inc., gathered lists of email addresses and sold them for $29.99 for 100,000 email addresses on up to $1,599.99 for 10 million addresses."

Let's mush a few things together into a nice pink rectangular solid: ipandithurts writes "The FTC Chair Timothy Muris doubts the ability of the "CAN SPAM" law to stop SPAM." ElementCDN writes "The Ottawa Citizen has a story on Bernard Balan the King of Spam. Bernard has closed up shop and moved to cottage country near Huntsville, Ontario." CactusMan writes "CTV (among others) is reporting that a Ontario trio has been named in a suit filed by Yahoo under the new CAN-SPAM legislation. Yahoo is claiming that the father and two sons were 'responsible for sending millions of unsolicited messages to users of the company's e-mail service.'" ilsa writes "According to this AP article, as much as 19% of e-mail sent by commercial entities never reaches its destination. 'Promotions and greeting cards were the types of messages most likely to disappear, the study found.' Although this study may have been intended to be alarming, forgive me for thinking this may not be a bad thing." Reader chrisbtoo responds to an earlier spam story: "In today's story about Spam solutions, monstroyer challenged people to crack the Spam Interceptor Captcha. Turns out it was pretty easy." Finally, we can't fail to mention an attempt at making the world's largest spam musubi.

Coneasfast writes "PayPal, which is owned by eBay, has admitted misleading shoppers into believing it offered credit-card-style protection and has agreed to pay $150,000 to settle charges. There are many sites out there which are dedicated to the problems of paypal, including PayPalSucks and PaypalWarning." Reader ipandithurts links to this related Reuters story, pointing out that the New York investigation isn't the only PalPal probe: "PayPal's practice of suspending users accounts while investigating suspicious transactions continues to be review by the FTC. While the rate of fraudulent PayPal transactions is less than one-half of one percent, the volume of more than $12.2 billion last year keeps Paypal caught in the middle of many disputes."

theodp writes "Amazon's 10-K SEC filing discloses that the e-tailer has been sued for infringing on Soverain Software patents for Network Sales Systems (5,715,314 & 5,909,492) and Internet Server Access Control and Monitoring Systems (5,708,780), aka the Open Market patents, aka the Divine cashectomy patents, which Soverain obtained in the wake of Divine's bankruptcy sale."

mbstone writes "The U.S. Court of Appeals for the Ninth Circuit ruled that sci-fi author Harlan Ellison can go ahead with his DMCA lawsuit against AOL. Seems somebody posted some Ellison stories to Usenet, AOL made 'em available, Ellison complained, and AOL blew him off."

jemnery writes "It's worth noting that January 17th is the 20th anniversary of the US Supreme Court's decision in favour of Sony to allow home taping of broadcast programmes. This is something we all take for granted these days, but at the time it was a close-run thing. You can read about case no. 81-1687 here." The Guardian has a commentary.

theodp writes "With IE, IM and Linux all threatened by patent infringement lawsuits, it's worth noting that Saturday marks what would have been the third anniversary of BountyQuest. With $1+ million of Amazon CEO Jeff Bezos' money and an Amazon VP on its Board, BountyQuest vowed to reform the patent system through its prior art contests. While BountyQuest raised eyebrows when it found winning prior art right off the bat for a patent Amazon was sued for infringing on, it surprisingly drew little heat when it announced no winning prior art could be found for Bezos' own 1-Click patent. 'There was no Bounty winner, mainly because the 1-Click patent is specific to the Web,' explained BountyQuest. 'This was a tough one to win because the Amazon 1-Click patent is so specific to the Web,' added BountyQuest investor Tim O'Reilly. Amazon's claim that the contest outcome vindicated Bezos' 1-Click patent went unchallenged by the New York Times, who instead took contestants to task for submitting prior art that 'failed to mention the Internet.' But legal documents have surfaced revealing that a month before these arguments were made, Amazon was told by a Federal Court that 'This distinction is irrelevant, since none of the [Bezos 1-Click patent] claims mention either the Internet or the World Wide Web.' If it was 'in everyone's interest to get all relevant prior art out into the open,' as Bezos said, then what happened?"

ipandithurts writes "The European Union has brought member nations to court to force them to pass laws modifying their current patent laws to match the laws required by the EU. These requirements essentially centers around biotechnology patent law.After a 10-year debate, the EU adopted what it called "strict ethical rules" for patenting biotech inventions in 1998 and gave member states until July 30, 2000, to transpose them into national law. Germany, Austria, Belgium, France, Italy, Luxembourg, the Netherlands and Sweden still have not done so, prompting the European Commission to refer them to the European Court of Justice. Their failure to implement the EU directive "has created trade barriers and hampered the internal market," it said. "Non-implementation ... is putting the European biotechnology sector at a serious disadvantage." Seeking to allay public concerns about patenting processes using human genes or DNA molecules, the rules ban patents for cloning human beings or modifying their genetic identity, as well as the use of human embryos for industrial purposes. The Commission said last year that it expects that the global biotechnology market, not counting agriculture, could amount to more than euro2 trillion ($2.26 trillion) by 2010."

burgburgburg writes "Reuters reports that the three-member federal appeals court in Virginia ruled today the U.S. District Judge J. Frederick Motz erred when he ordered Microsoft to include Java with the Windows operating system. Fortunately, Dell and HP, the top 2 PC makers, have already decided to ship Java on the PCs that they sell. Apple, Red Hat and Lindows have also agreed to include Sun's Java." The ruling is available.

An anonymous submitter writes "This law professor from the University of California points out weakness in SCO's legal bluster, and further takes a poke at closed software, for those hungry for more SCO scraps. At the end, he references Slashdot for more info ('itself a demonstration of the power of dispersed individuals working together')."

rk2z asks: "I did some independent contractor work about 6 months ago. I delivered the software as specified in my contract and turned in the hours that it took. I then sent the company an invoice for $1400 which was based upon my contracted hourly work rate. They had paid me in the past so I didnâ(TM)t do anything like withhold source code until payment. To make a long story short, they refused to pay me and I ended up taking them to Small Claims court in the state of Nebraska. I won a judgment for the above amount. The problem is, Iâ(TM)m not really sure how to go about collecting my judgment. The amount is relatively small so I donâ(TM)t want to consult a lawyer, because it not really worth blowing the entire judgment before I even get it. But it's big enough that I donâ(TM)t want to give up on it."

"I looked a couple of law websites like here and here, but their suggestion were fairly broad.

Does anyone have any experience in going after debtors (without a lawyer if possible)? Is it better to go to a collection agency and blow half the settlement up front? If so does any one know a good collection agency?

Things to keep in mind: [the customer] is a small company (less than 7 employees). They have some property like computers and such, but how do I find out what they own vs. what is leased. Owned property can be seized by the Sheriff and sold at auction. I have tried to contact them about a monthly/weekly payment plan, but have been blown off every time I try to make some progress on the issue. Thanks in advance."

Nutsquasher was the first to submit news that a ban on selling violent video games to minors has been struck down, reversing an earlier decision in this case that held that video games were not a constitutionally protected form of speech. The decision (pdf) is available. Since the Federal government has been considering a national law along these lines, these decisions on local laws may be important soon.

pugugly writes "Findlaw's Writ has an interesting editorial (By a student) on the quietly signed Singapore-U.S. Free trade agreement, set for fast-track approval (Limited debate, no amendments). It has a clause in it requiring the signatories abide by DMCA provisions. Among other things, this could theoretically this would remove that annoying judicial oversight from the picture."

Anonymous Coward writes "Here's some interesting legal commentary on the continuing saga of copyright enforcement and Apple's attempt at a constructive approach."

An anonymous reader submits: "Joe Barillari, a computer science student studying under Prof. Ed Felten, posted an analysis on his blog of the lawsuit filed by the RIAA against a Princeton college student for running "Napster-like" networks. He argues that the case doesn't quite live up to its contributory infringement claim due to limitations in the DMCA. A good read!"

An anonymous reader writes "From Privacy.org: The U.S. Court of Appeals for the 8th Circuit has upheld (PDF) the Telephone Consumer Protection Act (TCPA) of 1991 against a First Amendment challenge. In the case, Missouri v. American Blast Fax, junk fax company Fax.com and Wal-Mart argued that the law violated the First Amendment because it imposes fines upon companies that send fax advertisements without the consent of the recipient. The case is the latest court victory for opt-in privacy laws." I hope the same logic is applied to spam.

SataiCam writes "Marci Hamilton has an article over at Findlaw.com covering potential options for getting a shorter copyright after the Eldred loss (or, more likely, keep this one from growing again). Clearly such a movement is an uphill battle, Hamilton does nothing to argue against that, but the options are there. It's an interesting read with some good points and a tone of "if you want it, go out and fight for it." I don't necessarily agree with all she says, but that's not surprising, she is using an AOL e-mail address, after all."