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Bah, we threw that old thing out for drunk driving checkpoints.

I disagree with them, but the rational used for check points is that they check everybody and don't pull people over at random.

We violate it every single time anyone flys commercially.

I most especially disagree with this. I've repeatedly said government shouldn't be running all these security check points to board a plane. If individual airlines want fliers to pass through security check points they should be able to, one airline could say they made sure passengers were safe while another could advertise they didn't harass fliers, but not government. I was really hoping the courts would side with John Gilmore, but they didn't. What really gets me was that the district court said it lacked standing or jurisdiction, yet one of the jobs of the courts is to keep the executive branch within the constitution. You know all that three legs stuff.

We violate it every time anyone enters a public government building. We especially violate it when you show up for legally required jury duty, and are unconstitutionally searched before being allowed to comply with the summons.

Yea, things have really changed since 911. I still recall being able to walk into a government building, not have to empty out my pockets or pass through metal detectors. I was summoned twice for jury duty and didn't have to put up with that BS. Unfortunately neither tyme was I even questioned never mind actually picked to serve on a jury. Both tymes I was hoping to be picked for a victim-less crime trial, such as drug possession, so I could use jury nullification to tell government the law was bad. Law enforcement and prosecutors today would have jailed Thomas Jefferson along with several other Founding Fathers.

Falcon

It's fact that the word 'privacy' doesn't once appear in the U.S. Constitution. Justice Douglas created it in Griswold v. Connecticut, and a majority of his colleagues voted in favor of it.

A Supreme Court ruling before Griswold v. Connecticut said there was a right to privacy, well anonymity. I couldn't find it, FindLaw used to have it, but in the early 1800s the Supreme Court ruled the First Amendment included the right anonymity. If a person did not have the right to remain anonymous then they would not be able to exercise free political speech. Other rulings said it was a right to distribute anonymous pamphlets.

Falcon

Some rights have more focused, specific advocacy groups which are in a better position to lobby for and defend those rights. If someone else can do a better job, why waste resources on the same thing when other rights don't have their own advocacy and lobbying group?

BULLSHIT!

District of Columbia v. Heller was decided 5-4.

How the HELL could a "civil rights" organization worth anything NOT have a position on whether or not the 2nd Amendment confers an individual or collective right. Hell, given that every other Amendment confers individual rights, one had to do some pretty serious logical shenanigans to come to any conclusion that the 2nd Amendment only confers collective rights and not individual rights.

And here's some of the logical shenanigans a certain ex-General Counsel of the ACLU agreed with in the District of Columbia v. Heller dissent:

The question presented by this case is not whether the Second Amendment protects a "collective right" or an "individual right." Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.

That's a nice dance, dance, dance around that "individual right" question.

Then, this:

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia.

That's even more dance, dance, dance BULLSHIT.

From the majority opinion:

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2-53.

(a) The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2-22.

(b) The prefatory clause comports with the Court's interpretation of the operative clause. The "militia" comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens' militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens' militia would be preserved. Pp. 22-28.

(c) The Court's interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28-30.

(d) The Second Amendment's drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30-32.

(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court's conclusion. Pp. 32-47.

Read those page counts:

FIFTY ONE FUCKING PAGES that utterly refute the completely unsupported and utter bullshit statement "The Second Amendment was adopted to protect the right of the people of

There is no debate on the fact that this is an invasion of privacy. It seems to be a sort of test to keep tech savvy people (would that be everyone?) out of the hiring process. I am shocked at this. Here is an interesting note, the US constitution aside from the 9th amendment does not guarantee the right to privacy. The right to privacy is enforced by the interpretation of the First, Third and Fifth amendments and of the Ninth amendment itself. The Fourth Amendment contains an explicit interpretation of the right to privacy specific to computers. They are still open to interpretation. So the issue is just not about private passwords here, there's a lot more being brought up. In India, Article 21 of the Indian Constitution expressly guarantees the Right to Privacy. There is some confusion and no explicit mention in the constitution of Britain either. From the little reading I have done, the right to privacy (and therefore keeping my own passwords from the state) has been created through addendum and interpretation of prior articles of constitution rather than a specific article or amendment mentioned in the constitution. ---- IANAL

This is something that is somewhat contested still. I have read his argument/opinion and don't agree with it. I will go on to explain why later but,

The funny thing here is that congress's power to do anything because of the commerce clause was granted by the supreme court after it already ruled the programs unconstitutional. That's somewhat important because when the Rhenquist Court started showing signs of actually giving the Commerce Clause some meaning, they were actually reverting that movement away from the unconstitutional ways. Now what funny or interesting about this is that a future court could view the subversion of the constitution as a negative and reverse this previous ruling with treaties. So at best, it's possible that given the right treaty, it could be negated within a matter of time.

Of course that would depend on whether the supreme court interpreted the constitution or thought of it as a living document and decided that "freedom of speech" as you mentioned, was only reletive to what society thought at that time.

Now, here is my objections to his ruling and it happens to be most of the controversy surrounding it that others have expressed. Article VI of the constitution says "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land;". (it actually says more but this is what we need to work with.

Here is says that all treaties made, and which shall be made, under the authority of the united states. Two problems with the anything goes in treaties argument. First is that both congress and the president are sworn to uphold and protect the constitution. The president is sworn with "will to the best of my ability, preserve, protect and defend the Constitution of the United States." but congress has no leniency (also, congress's oath is not mentioned in the constitution.) So it would seem that either by constitution or congressional rules, that the treaty would have to be in line with the constitution in the first place or they aren't allowed to adopt it. However, when we look at the supremacy clause, it makes a distinction between treaties already made and treaties that will(shall) be made. It says made under the authority of the united states.

To me, and quite a few others, this should mean that the president nor congress have the power to only create treaties within the limits of the constitution because the participants authority is only derived from the constitution which prohibits prohibits certain actions and only allows others. To this extent, It is where I disagree with the Holmes opinion. In it, he says "The language of the Constitution as to the supremacy of treaties being general, the question before us is narrowed to an inquiry into the ground upon which the present supposed exception is placed." he then goes on to talk about the living document in how we can't rely on what the framers meant 100 years ago and need to breath our own experiences into it. I don't buy the living document idea as not only could it be used to expand the powers of congress, it could also be used to allow indefinite detention of terror suspects, warrant-less wire taps or searches, and so on. As soon as we break away from the intentions of the founders, we are more or less making crap up as we go. The constitution allows for changes and it should be the only way it can be changed (as long as the amendment is constitutional).

Anyways, a constitutional court with a strict constitutional interpretation would most likely reverse the idea of a treaty trumping the constitution.

The last eight years free of collapsing buildings seem to me a great indicator of its implicit uselessness. So why push it still?

It's useless for preventing terrorist attacks, but highly useful for helping government officials track a citizen's movements. Now they can use that power for good (more promptly serving arrest warrants) or evil (harassing political opponents as just one example). Anti-terrorism is a smokescreen. What RealID proponents really want, and won't stop until they get, is the 24/7 tracking of every person in the country.

What I say to this is, if you're not doing anything wrong ... then where you are and what you're up to are none of the government's damned business.

Not as good a name as Su Yu... http://pview.findlaw.com/view/2875035_1

ST LOUIS, I M & S R. CO. v. WILLIAMS , 251 U.S. 63 (1919)

They pretty clearly cover the fact that the government does have wide latitude to set statutory damages, and that while they can't be wildly disproportionate to the offense the entirety of the offense is not limited merely to the economic damages a party suffered. The case in particular upheld an award of 113 times the actual damages. To quote the decision, "When the penalty is contrasted with the overcharge possible in any instance it of course seems large, but, as we have said, its validity is not to be tested in that way. When it is considered with due regard for the interests of the public, the numberless opportunities for committing the offense, and the need for securing uniform adherence to established passenger rates, we think it properly cannot be said to be so severe and oppressive as to be wholly disproportioned to the offense or obviously unreasonable.". And I suspect that in this case similar factors would weigh: the ease with which songs can be shared, the sheer number of copies that could be distributed and the speed with which they can be made. Looking at it all, it seems to me you've got a tough row to hoe arguing that the Court should ignore it's own holding in Williams and look solely at the dollar ratios.

You only have to go to a third-world company where oil is extracted to see how these companies act with the lack of government regulations to control them (or a government that can stand up to the companies).

Hell, you don't have to find a third world oil company for an example of this. Unocal, Union Oil Company of California, has been accused of using the military to force Burmese to relocate and work in Burma. In Nigeria Shell Oil "supplied the Nigerian military government with weapons. These weapons were used to put down, with deadly force, opposition to Shell drilling on Ogoni land." Ken Saro-Wiwa, who opposed Shell drilling, was hanged by the military because of his opposition. Some groups in other nations have used the Alien Tort Claim Act of 1789, ATCA, to sue US businesses in US courts for their support of such things. And as president Bush tried to gut the ATCA.

The free market, with the companies always seeking lowest costs and better numbers this quarter, actually encourages these behaviors.

That is not a free market. A free market is one in which there is a voluntary exchange.

And like it or not, Somalia is exactly what we get with the "libertarian paradise". They might claim that they don't actually mean lack of government, but what good is a government that doesn't enforce laws and regulations?

If you're poisoned by some company you can sue them, you don't need byzantine regulations. Actually do you know who the biggest polluter in the US is? The United States Government. It's the biggest polluter and it gets away with it.

Falcon

sorry the recent credit card law revamp you hear about in the news?? it went through the senate and passed 4 to 2.. yes 6 people out of 100 there to vote on it..

I think you misspelled "90 to 5".

Why do "they" "always" mock conspiracy theorists? Because so many of said theorists spew so much garbage. Post a screed with a few dozen "facts", and most people won't be bothered to check every one of them. Some will discount the whole mass, others will accept the whole mass.

As I never tire of saying, if judges are really "experts" in a sense that lay people are not, then it should be possible to put 10 judges in separate rooms, present them with the same facts of the same case, and have most of them independently come to the same conclusion about the correct answer, with a higher degree of accuracy than lay people would be able to reach the same conclusion.

That is what happens with judges. They agree on almost everything. You have significant selection bias because the /. crowd mostly only pays attention to cases at the nexus of technology and constitutional rights. If /. paid attention to "developments" in Delaware corporation and agency jurisprudence, you'd come to quite the opposite conclusion. Like any newly-developing field, tech law has some dispute about how to approach it. Like any philosophical field, con law has some dispute about how to approach it. Put the two together, and yes, you will find wildly divergent opinions among the judiciary, but that's only because you're talking about the frontier of an area.

By your logic, there's no such thing as a computer science expert, because Andrew Tanenbaum would have failed Linus Torvalds for designing a monolithic kernel. Dissent and difference are key in most fields; they are not an indication that expertise in such a field doesn't exist. Remember that Einstein never bought into a lot of the quantum hubbub ("god does not play dice with the cosmos," etc.).

Let's say you had a case where two gay people were barged in on the police while they were having sex, and prosecuted under a no-dirty-sex statute that was never applied to straight people. If you presented those facts to 10 (or, let's say 9) judges, and each of the judges was either a living constitutionalist, or a textualist/judicial minimalist, or an originalist, you'd get three genres of answer.

The first group would say that there's a substantive component of the due process clause which recognizes rights fundamental to ordered liberty, and the right to private consensual conduct is one of those rights. The second group would say that the statute was applied unconstitutionally because it applied to only one group and not another, in clear violation of the text of the equal protection clause. The third would say that private gay sex is not a fundamental right recognized by the framers of the constitution or the fourteenth amendment.

Surprise surprise, that's exactly what happens.

tl;dr version: the judiciary as a whole is consistent, and even on the frontiers, where it isn't, individual schools of thought are consistent.

As I never tire of saying, if judges are really "experts" in a sense that lay people are not, then it should be possible to put 10 judges in separate rooms, present them with the same facts of the same case, and have most of them independently come to the same conclusion about the correct answer, with a higher degree of accuracy than lay people would be able to reach the same conclusion.

That is what happens with judges. They agree on almost everything. You have significant selection bias because the /. crowd mostly only pays attention to cases at the nexus of technology and constitutional rights. If /. paid attention to "developments" in Delaware corporation and agency jurisprudence, you'd come to quite the opposite conclusion. Like any newly-developing field, tech law has some dispute about how to approach it. Like any philosophical field, con law has some dispute about how to approach it. Put the two together, and yes, you will find wildly divergent opinions among the judiciary, but that's only because you're talking about the frontier of an area.

By your logic, there's no such thing as a computer science expert, because Andrew Tanenbaum would have failed Linus Torvalds for designing a monolithic kernel. Dissent and difference are key in most fields; they are not an indication that expertise in such a field doesn't exist. Remember that Einstein never bought into a lot of the quantum hubbub ("god does not play dice with the cosmos," etc.).

Let's say you had a case where two gay people were barged in on the police while they were having sex, and prosecuted under a no-dirty-sex statute that was never applied to straight people. If you presented those facts to 10 (or, let's say 9) judges, and each of the judges was either a living constitutionalist, or a textualist/judicial minimalist, or an originalist, you'd get three genres of answer.

The first group would say that there's a substantive component of the due process clause which recognizes rights fundamental to ordered liberty, and the right to private consensual conduct is one of those rights. The second group would say that the statute was applied unconstitutionally because it applied to only one group and not another, in clear violation of the text of the equal protection clause. The third would say that private gay sex is not a fundamental right recognized by the framers of the constitution or the fourteenth amendment.

Surprise surprise, that's exactly what happens.

tl;dr version: the judiciary as a whole is consistent, and even on the frontiers, where it isn't, individual schools of thought are consistent.

As I never tire of saying, if judges are really "experts" in a sense that lay people are not, then it should be possible to put 10 judges in separate rooms, present them with the same facts of the same case, and have most of them independently come to the same conclusion about the correct answer, with a higher degree of accuracy than lay people would be able to reach the same conclusion.

That is what happens with judges. They agree on almost everything. You have significant selection bias because the /. crowd mostly only pays attention to cases at the nexus of technology and constitutional rights. If /. paid attention to "developments" in Delaware corporation and agency jurisprudence, you'd come to quite the opposite conclusion. Like any newly-developing field, tech law has some dispute about how to approach it. Like any philosophical field, con law has some dispute about how to approach it. Put the two together, and yes, you will find wildly divergent opinions among the judiciary, but that's only because you're talking about the frontier of an area.

By your logic, there's no such thing as a computer science expert, because Andrew Tanenbaum would have failed Linus Torvalds for designing a monolithic kernel. Dissent and difference are key in most fields; they are not an indication that expertise in such a field doesn't exist. Remember that Einstein never bought into a lot of the quantum hubbub ("god does not play dice with the cosmos," etc.).

Let's say you had a case where two gay people were barged in on the police while they were having sex, and prosecuted under a no-dirty-sex statute that was never applied to straight people. If you presented those facts to 10 (or, let's say 9) judges, and each of the judges was either a living constitutionalist, or a textualist/judicial minimalist, or an originalist, you'd get three genres of answer.

The first group would say that there's a substantive component of the due process clause which recognizes rights fundamental to ordered liberty, and the right to private consensual conduct is one of those rights. The second group would say that the statute was applied unconstitutionally because it applied to only one group and not another, in clear violation of the text of the equal protection clause. The third would say that private gay sex is not a fundamental right recognized by the framers of the constitution or the fourteenth amendment.

Surprise surprise, that's exactly what happens.

tl;dr version: the judiciary as a whole is consistent, and even on the frontiers, where it isn't, individual schools of thought are consistent.

I highly recommend that you read Gibbons v. Ogden (1824) so that you understand how regulation of trade amongst the states has been seen to work by the Supreme Court for the last 185 years. The case accepted practices that had been in place since the beginning of the Constitution's power.

IANAL, but from what I've read, and what I've heard lawyers quote, one of the main factors in judging trademark infringement is the potential of confusion in the mind of the consumer (citation).

So if company A can show that the intent of a competitor (company B) buying keyword ad space specifically with company A's trademark in it and their intent is to confuse consumers into thinking company B is company A, then they have a case.

That said, there may be more to this due to the actual practice I've seen in big companies going after people over trademark infringement (Mike Rowe Soft anyone?). But these cases are often settled out of court so they could just be scare tactics since the big company knows they couldn't win in court other than to out lawyer the defendant.

The trial court's decision was upheld by the OH intermediate court of appeals. This case screams for an appeal up to the OH Supreme Court. The statute as applied here seems to fit right into the void-for-vagueness doctrine, which the US Supreme Court described as follows:

"Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warnings. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications." Grayned v. City of Rockford, 408 U.S. 104, 108 -09 (1972), quoted in Village of Hoffman Estates v. The Flipside, 455 U.S. 489, 498 (1982).

http://caselaw.lp.findlaw.com/data/constitution/amendment14/15.html#f8

I don't claim to be a lawyer, but I have noticed that another case was thrown out despite the temperature being 179 F and that the Cambridge News reports that McDonald's serves hot coffee today at 85 C (185 F) in the UK and other places in the US serve coffee at up to 195 ÂF. Surely if the temperature itself is too high, then these establishments should be forced to drop their temperatures or shut down. What is the point in litigating after something happens? Isn't it better to just shut them down before there is harm?

Perhaps I should have said, "That doesn't make it sound any less absurd." because it doesn't. It still sounds bizarre to punish someone for doing something and then let them and other people continue to do it.

Does slashdot not do the  (degree) symbol or something?

And she did not want to sue McDonalds for punitive damages, only to have them pay for the costs of her medical treatments. McD's refused to pay her medical bills (they offered $800), and so she was left with the choice of suing or being on the hook for the costs. Moreover, there were something like 700 previous cases of serious burns relating to McD's coffee, and McD's was aware of the safety issues. http://www.lectlaw.com/files/cur78.htm http://library.findlaw.com/1999/Nov/1/129862.html

Americans, like me, have this concept of due process enshrined in our Constitution.

http://caselaw.lp.findlaw.com/data/constitution/amendment14/

Watching the EU try to stumble its way into the 19th century is amusing, but also disheartening. These are the same people who gave us the Magna Carta. However, I do admit the possibility that all the smart people migrated to the U.S. and left the authoritarians in the Old World.

"alleged al-Qaida operations mastermind Khalid Sheikh Mohammed intended to use his free Hotmail account to direct a U.S.-based operative to carry out an attack .. He used a "10-code" to protect the numbers -- subtracting the actual digits in the phone numbers from 10 to arrive at a coded number, according to a person close to the investigation"

"Qatari citizen Ali Saleh Kahlah al-Marri, a computer science graduate student at Illinois's Bradley University .. a bachelor's degree from Bradley University in Peoria, Illinois, in the early 1990s, and was returning to the United States to obtain a master's degree from Bradley"

Senators are elected as individuals, by the people of their state , and shall only be responsible in front of them - not in front of their party.

Party switching in the US has noble history: in fact, the parties as we know them today, are largely a result of historical switchings. (Weren't this the case, there would be no point in having a Senate. We would just have two parties, each weighted according to the votes.)

Historically, there have been examples of "strong parties" of this kind, but those are not the ones you would want to take as a model. Independent voting of each elected official, and ultimately party switching, is at the very core of the Democracy.

Said this, of course one could also switch party because it's a cheap way to get elected, but this is another story.

Libel and Slander only apply if the person can prove he is not gay and the claim substantially damaged him in some way.

Not quite, truth is an affirmative defense against libel or slander. An affirmative defense is one which the defendant affirms the facts presented by the plaintiff, and offers his own facts that mitigate the offense. Since the defendant is claiming these facts, the burden of proof falls on him.

In other words:

Plaintif: The defendant said I was gay!
Defendant: That's true, Your Honor, but he is gay!
Judge: Ok, prove it.

Of course, IANAL.

The article is correct when it states that the proposals are legislative pandering. The article is incorrect when it (sarcastically, as I read it) states that a "sin tax" on violent video games is a viable compromise. That doesn't mean that these sorts of proposals couldn't be enacted into law, or cause some momentary angst. However, since there's money involved, you can be sure that any state enacting such a law wouldn't end up collecting an additional cent.

We should all recall that pesky First Amendment to the Constitution. Now, while there are those who think that the First Amendment can justify almost anything, there are also those who have a legitimate basis for thinking that the First Amendment requires most laws to be content neutral in the way in which they affect speech, even "videogame speech."

If you've been tracking the "violent videogames" issue over the last few years, you know that laws restricting the distribution of violent and sexually explicit games have been routinely struck down as violating the First Amendment due to the requirement that they pass "strict scrutiny." Strict scrutiny requires that the law support a "compelling interest" and be "narrowly tailored" in order to achieve that compelling interest without unreasonable adverse side-effects.

Surprise, surprise -- a tax is simply another law. Even a Reagan-era Supreme Court (excepting Rhenquist and Scalia, who only cited cases involving credits and deductions) has held that discriminatory taxes must survive strict scrutiny. Given the tenor of prior Federal Court decisions concerning selective bans on the distribution of videogames to minors, I believe that you can reasonably predict that decisions concerning selective taxes on sales of videogames to minors and adults will be struck down as well.

Thanks for your explanation, it's the best I've seen.

> the court empowered the Authors Guild to negotiate on behalf of all members
> of the class (holders of copyrights to orphaned works)

Doesn't a class action lawsuit requires some lead plaintiff who is a member of the class? Did some author or publisher come forward and say "Google copied my book without permission after I disappeared"?

The named plaintiffs in this case are Herbert Mitgang, Betty Miles, and Daniel Hoffman, all authors who have copyrighted books at the University of Michigan, and who obviously have not abandoned their copyrights.

So I can see how they'd sue on behalf of copyright holders who haven't given google license to copy. But how did they manage to include in the class copyright holders who have disappeared off the face of the earth?

I don't get why people assert that they have the right to media in a different format to the format in which they purchased it.

It probably has something to do with this.

A company has made something and is selling it. You can accept the deal or not, but you can't override their right to set the terms of the sale.

The US Copyright Act disagrees with that. See, e.g. UMG v. Augusto.

I could see a jury being persuaded to ignore the law, though. Given a random set of 12 people, how many of them do you think have engaged in file sharing themselves?

Jury nullification is unlikely to work. Prosecutors and many judges dismiss potential jurors who believe in jury nullification. Judges even instruct jurors that they are required to decide the facts, was a law broken, and not to judge the law. In 1895 the US Supreme Court case Sparf v. United States, 156 U.S. 51, 102 the justices rejected jury nullification.

Falcon

If the DA fails to bring charges against the girls, would that open him up to a defamation lawsuit for tarnishing their image for so long?

Yes and No. Prosecutors have absolute immunity from civil suit for any activity "intimately associated with the judicial phase of the criminal process", however, "absolute immunity may not apply when a prosecutor is not acting as an officer of the court, but is instead engaged in, say, investigative or administrative tasks." (both cites from [1])

In the years since Imbler, we have held that absolute immunity applies when a prosecutor prepares to initiate a judicial proceeding, Burns, supra, at 492, or appears in court to present evidence in support of a search warrant application, Kalina, supra, at 126. We have held that absolute immunity does not apply when a prosecutor gives advice to police during a criminal investigation, see Burns, supra, at 496, when the prosecutor makes statements to the press, Buckley v. Fitzsimmons, 509 U. S. 259, 277 (1993), or when a prosecutor acts as a complaining witness in support of a warrant application,

The weight of precedent goes in favor of absolute immunity for what he did -- there were credible charges that could have been brought and he had the right to threaten prosecution in an attempt to get a plea bargain. At the very minimum, it would be an uphill battle to find him liable.

Cites:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=07-854
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=424&invol=409&pageno=428

Similar case:

http://www.nytimes.com/2009/02/13/sports/baseball/13clemens.html

If the DA fails to bring charges against the girls, would that open him up to a defamation lawsuit for tarnishing their image for so long?

Yes and No. Prosecutors have absolute immunity from civil suit for any activity "intimately associated with the judicial phase of the criminal process", however, "absolute immunity may not apply when a prosecutor is not acting as an officer of the court, but is instead engaged in, say, investigative or administrative tasks." (both cites from [1])

In the years since Imbler, we have held that absolute immunity applies when a prosecutor prepares to initiate a judicial proceeding, Burns, supra, at 492, or appears in court to present evidence in support of a search warrant application, Kalina, supra, at 126. We have held that absolute immunity does not apply when a prosecutor gives advice to police during a criminal investigation, see Burns, supra, at 496, when the prosecutor makes statements to the press, Buckley v. Fitzsimmons, 509 U. S. 259, 277 (1993), or when a prosecutor acts as a complaining witness in support of a warrant application,

The weight of precedent goes in favor of absolute immunity for what he did -- there were credible charges that could have been brought and he had the right to threaten prosecution in an attempt to get a plea bargain. At the very minimum, it would be an uphill battle to find him liable.

Cites:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=07-854
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=424&invol=409&pageno=428

Similar case:

http://www.nytimes.com/2009/02/13/sports/baseball/13clemens.html

Seems as though Riddick Geo III hasn't had the greatest luck in court. Despite his voriferous abilities to bully, harass and cajole, the United States District Court for the Eastern District of Virginia replied in it's March 21, 2003 decision of Xoom v. Imageline that, "The district court found that Imageline had no basis for litigating claims of infringement with respect to the individual images because, as registered, the copyright claims were only in the works as a whole and not in the individual images".

This being a referential case, there's no reason the websites under attack by him shouldn't just take him to task and toss this little gem in his face; he'd be hard put to claim "thousands of copyrights" on every digital image in his collection - and most likely provenance could be shown otherwise under closer examination. Additionally, he's only adding fuel to the flames brewing over the copyright bruhahau (of course, we're all anti-private-property-lovin'-commies here at /.)

"We mean business. We hate digital pirates. We hate hypocrites even more. We never walk away from a case until a resolution in agreed to, or forced through curt order, in writing. We never will." Curt Order, indeed: clean your own house, Georgie, before you decide to bitchslap someone else in their own.

I don't see how you can make the case that waiving the 4th means you've waived the 5th. If you're dumb enough to let the cops search your place and they find some dope, that's exactly when you need to shut up and ask for a lawyer.

There's a very good article discussing your point with reference to the magistrate's decision in the case. The columnist/law professor has answered your concerns much better than I can. http://writ.news.findlaw.com/colb/20080204.html

You conveniently left out the courts ruling on that case:

"Because the consent directive is not testimonial in nature, we conclude that the District Court's order compelling petitioner to sign the directive does not violate his Fifth Amendment privilege against self-incrimination. Accordingly, the judgment of the Court of Appeals is affirmed. "

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=487&invol=201

So, you and Justice Stevens might agree, but it seems the rest of the Supreme Court Justices have already ruled the other way.

More notably, the concept of EULA itself might not stand up in court. If you want a legal tact, I suggest that one. EULAs are unfair and should be attacked at the core (didn't an EU court recently rule that EULAs weren't binding?). You bought the thing, you're installing a copy of your own, and that's that. Done. There are already laws preventing you from redistributing it and the like. No EULA is needed. Does a movie or music album come with such a thing? No. Should software? No.

That argument might be tough depending on where you are in light of ProCD, Inc. v. Zeidenberg , 86 F.ed 1447 (7th Cir., 1996). That court upheld a "shrinkwrap license" (aka EULA), on the grounds that the box notified the user that there was a license which must be agreed to before the product could be used. In other words, it was part of the terms of sale that you would have to accept the license.

The court also noted that warranties shipped in a box, sight unseen, are honored by every state (as opposed to the default UCC warranty when none is expressed), notes that the UCC allows sellers to come up with other terms of contract acceptance other than just buying the box (citing UCC 2-204(1)), and notes that a customer is free to return a product whose terms are unacceptable (with the kind of funny scenario of a box that has a surprise message saying "you now owe us an extra $10,000" which a customer can refuse by returning the product).

Full text of the decision, if you're interested. Courts are very split on whether to follow this decision or not.

Yes.
http://www.law.uh.edu/faculty/RNimmer/contracts/supp7.pdf

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=7th&navby=docket&no=961139

EULA is a binding legal contract in the USA. The case was ProCD v Zeidenberg

You are completely wrong. EULA have been tested in court in the USA. They are binding legal contracts. The case is ProCD v Zeidenberg.

Thanks for being the only person that remembers Pro-CD.

Furthermore, Blizzard was awarded summary judgment in Blizzard v. MDY that loading the game client into RAM - you know, starting the program up - was copyright infringement when using the Glider bot because using Glider went against the EULA and Terms of Service. Running the game normally was a licensed action and therefore copying the game into RAM was ok. However, running the game and using Glider was an unauthorized action and therefore copyright infringement because it was an unauthorized copying of the game into RAM. (An aside, the USER was committing copyright infringement, Glider was just contributing to it. But Blizzard's not going to endure the PR nightmare of suing its customers.)

Anyone that thinks EULAs are generally unenforceable is very very wrong.

You are completely wrong. EULA have been tested in court in the USA. They are binding legal contracts. The case is ProCD v Zeidenberg.

If you don't like the EULA then you can return the product for a refund. That was Blizzard v bnetd I think.

FISC needs to approve surveillance requiring a warrant within 72 hours under FISA's emergency authorization provisions.

The FISC affirmation I am referring to is the August 2008 court decision affirming that the surveillance conducted under the guise of the temporary Protect America Act, and thus the current law as amended by the FISA Amendments Act of 2008, is legal -- and that includes warrantless monitoring of identified foreign intelligence targets, and the technical mechanisms via which their communications can be located, targeted, and extracted from data streams.

The main issue between 2001 and 2007 was whether the same collection -- both collection that is explicitly legal now, and collection on US Persons identified to be communicating with terrorist targets -- was allowable under the administration's Article II and AUMF claims. That is a question that is not legally clear cut, and may never be answered by the courts. Then again, one of the ongoing court cases relating to the surveillance may end up getting that question answered-- and if it is, is it productive to go back and prosecute individuals who acted in the interests of protecting the United States from attack for activity that has subsequently been made explicitly legal by a supermajority of Congress and affirmed by the relevant court? Moreover, if the current law stays the same under President Obama the current political composition of Congress, was it really the exclusively political issue it was made out to be, or was that just political opportunism?

Having an issue with what you believe or infer to be the technical implementation that supports this collection is different from whether or not foreign intelligence should be able to be collected on US soil. The hallmark of the FISA amendments are judiciously protecting US persons, while removing restrictions on where and how foreign intelligence on non-US Persons can be collected simply because it's traveling through a glass pipe in San Francisco instead of over the air on the streets of Yemen. When the Legislative, Judicial, and Executive branches all agree with the new principles relating to foreign collection, the discussion doesn't distill down to the minutiae of what exact parts and techniques are being used to actually enable practical collection.

A technical surveillance mechanism can always be abused. It is our system of laws, courts, and other oversight that prevent it, not technical implementations or controls. The key is oversight and accountability, not the ability to publicly examine every piece of equipment and line of code. And in the context of foreign intelligence collection, that happens via the intelligence oversight committees in both houses of Congress and their staffs, the legal counsel and Inspector Generals' offices of Intelligence Community components, the Justice Department, and the Foreign Intelligence Surveillance Court -- among these are technical experts familiar with exactly how the implementations are deployed and used.

And, under the current law and the August 2008 Foreign Intelligence Surveillance Court of Review ruling, it is explicitly legal.

The FISA Amendments Act of 2008, passed by a two-thirds majority in both houses of Congress, allows for foreign intelligence collection on non-US Persons without a warrant, no matter where the collection occurs. The longstanding Smith v. Maryland, 442 US 735 (1979), allows for the collection of communications metadata, i.e., "to" and "from" information, without a warrant. The FISC ruling explicitly finds legal such collection under the now-sunset Protect America Act and, thus, the current FISA Amendments Act of 2008.

In order to determine which traffic content may be collected for foreign intelligence purposes, the traffic metadata must be examined. Even when a target in question is a specific non-US Person of foreign intelligence interest, traffic metadata must first be examined in order to target that person! Because examining traffic metadata was found explicitly legal and Constitutional three decades ago by the United States Supreme Court, doing so in order to target legitimate foreign intelligence collection is allowable under the law.

The major issues for foreign SIGINT were twofold:

- A lot of traffic is now digital versus analog, and cannot be targeted by aiming a directional antenna at a particular geographic locale. It is now traveling largely via things like fiber optic cables, intermixed with all manner of other communications. In order to target the collection, it is no longer a case of sitting on a Navy vessel offshore from some area of interest between individuals talking on two-way radios; it's finding that traffic in a sea of global digital communications.

- Foreign communications of non-US Persons physically outside of the US was increasingly traveling through the US. Previously fair game for foreign intelligence collection throughout the history of such collection in the United States, it suddenly became off-limits without a warrant because it was incidentally routed through locations in the United States. Foreign intelligence collection on non-US Persons outside of the US does not require a warrant, and fundamentally still shouldn't simply because their traffic happens to enter the US.

This was a case of changing technology necessitating an update to a law. A supermajority of both houses of Congress agreed.

Unfortunately, this discussion is so mired in politics, personal grinding of axes, confusion about early NSA programs (like the so-called Terrorist Surveillance Program, or TSP, which was not renewed after January 2007), and isolated examples of legitimate abuse or misconduct, that not many seem interested in having any real discussion about how foreign intelligence can be reasonably conducted in the digital age. Instead it is a sea of frantic arm-waving and breathless blogging about how the Constitution is being shredded, when the mechanisms of law and judicial oversight have explicitly established the activities as legal.

Ironically, Tice's interview is spot-on. He says, "What was done was sort of an ability to look at the metadata ... and ferret that information to determine what communications would ultimately be collected," and adds, "we looked at organizations, just supposedly so that we would not target them."

"Supposedly?"

That's the whole point. So here's an example of someone explaining more or less what is happening, namely, that traffic metadata is examined to determine whether or not it constitutes a foreign intelligence target, and that measures were undertaken to not intercept the content of communications of entities which are not legitima

Um no, the Constitution was amended (Twentieth Amendment) and changed accordingly:

"Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin."

So technically, his term started at noon no matter if he took the oath yet or not. :)

Indeed, and for anyone else reading this, it was Smith v Maryland, 442 U.S. 735 (1979):

The telephone company, at police request, installed at its central offices a pen register to record the numbers dialed from the telephone at petitioner's home. Prior to his robbery trial, petitioner moved to suppress "all fruits derived from" the pen register. The Maryland trial court denied this motion, holding that the warrantless installation of the pen register did not violate the Fourth Amendment. Petitioner was convicted, and the Maryland Court of Appeals affirmed.

This type of collection has subsequently been affirmed by the courts to also apply to all such communications metadata; information such as To: and From: fields in email, source and destination IP addresses, etc. It is the content of the communication that, for protected persons (US Persons, in this context), requires an individualized warrant.

Stupid Asshole me allows this shitty browser to lose what I typed in here, then I re-enter the message but instead of using an external program to store the comment until I could post it, I allow myself to be fucked-in-the-ass a second time and it loses my comment while I'm formatting it. I am typing this in a separate program, I won't get bit a third time.

Here's how the statute is unconstitutional:

• Cohen v. California , 403 U.S. 15 (1971), guy is wearing jacket in the county courthouse (but not in the courtrooms) which reads "fuck the draft." Is convicted for disturbing the peace. Conviction overturned; these mere words are inadequate to constitute disturbing the peace, and the idea does have First Amendment Protection
• People v. Boomer, 655 N.W.2d 255 (Mich. App. 2002), guy in canoe hits rock, dumps him into river, he responds with loud curses that are heard quite a distance away by police officer and a family with kids.

  The police officer ticketed Boomer, citing him for violating a more than 100-year-old Michigan law that criminalized the use of profane language in front of women and children.

  The Michigan Court of Appeals threw out Boomer's conviction and overturned the Michigan law, stating that "allowing a prosecution where one utters 'insulting' language could possibly subject a vast percentage of the populace to a misdemeanor conviction." The court went on to hold that the law violated the First Amendment's guarantee of free speech and that it would be "difficult to conceive of a statute that would be more vague." First Amendment Center

• Idaho v. Suiter (2003), man goes to police station to talk to them about a check fraud case dealing with his friend, but apparently they can't do anything with him because he's not the one who committed the crime. This gets him mad, and after he's told to leave, tells the cop to go fuck himself, and turns to walk out the door; is charged and convicted for disturbing the peace. Idaho Court of Appeals upholds conviction. Idaho Supreme Court overturns conviction; "the phrase was the vulgar equivalent of saying 'go jump in the lake.'"

There are far too many others to list, but even misdemeanor or fine-only charges have been struck down; a felony law wouldn't stand 30 seconds.

"This is not the case for homework or class projects. If a professor or another student takes your code and uses it somewhere without your permission, it would be copyright infringement."

This is true. Most of the clauses are really there for something like if you produce a really astounding work of literature as part of a writing class, or a breakthrough research paper. The University might claim the right to republish that work in another form. They will always credit you for it though. If you are a graduate student, it is very likely that this will happen, and more likely that you will receive partial credit on the final paper -- your adviser will likely claim the authorship with you as an assistant. In these cases though, it is the University that owns the work, not a professor or a student. If a professor or a student took it, and it was not on behalf of the University, then it is definitely infringement.

As far as the contract goes, at my school the Calendar was the legally binding agreement. Whatever it said in the calendar was implicitly agreed to by the student when you signed up and paid for classes. It was explicitly agreed to by the institution when they published it. There may have been somewhere that I signed at some point as well that bound me to agree to the terms of the school calendar, I don't really remember.

In any case, you do not actually have to sign a contract for it to be valid. As far as legally binding goes, all you need is an offer from one party, and an acceptance of that offer from the other.

Party A provides something when Party B provides something else. In this case, services for money. Once both parties have agreed to the terms, it is a contract. It can be written by a lawyer, or by a student, on paper, or on a napkin. In many legal systems, verbal contracts are considered valid if there is a witness. A signature is not required in order to be bound by a contract -- only the exchange of goods for services. I believe a signature may be required if one party provides services and the other promises to reimburse them in the future.

This may be different at your University, or in your state or Country, which is why I suggested in the post title that the OP check the policies of their institution.

In my case, when the University extended me an offer of acceptance to the institution, and I accepted that offer by signing up for classes, then I was bound by the terms laid out in the calendar.

You can read more about contract law here: http://smallbusiness.findlaw.com/business-forms-contracts/business-forms-contracts-overview/business-forms-contracts-overview-simple.html

The Congress has enlarged the federal role in ensuring highway safety since passage of the Federal Aid-Highway Act. In 1965 Congress added 23 U. S.C. 135, 79 Stat. 578, requiring each State to have a federally approved highway safety program 'designed to reduce traffic accidents and deaths.' And because of the absence of effective state action, the following year the Congress passed the Highway Safety Act, 23 U.S.C. 401 et seq. Section 402(a) provides that the Secretary promulgate regulations for the state highway safety program. Pursuant to this provision the Secretary has promulgated [416 U.S. 946 , 948] regulations regarding highway skid resistance and guardrailings. 344 F. Supp., at 1348 n. 14. Congress increased the federal role because state highway safety programs had 'generally been missing.'3 As in the Federal- Aid-Highway Program, the Secretary is to withhold federal funds from States which do not comply with the federal regulations. 23 U.S.C. 116(c).

(emphasis added)

Mindy MEYERS, Etc., et al. v. Commonwealth of PENNSYLVANIA et al. No. 73-721. Supreme Court of the United States. April 15, 1974

well, clearly you must know something that i don't. because the application of copyright laws in the U.S. generally favors the interests of copyright holders--particularly extremely rich ones--rather than the public. and the only way to use copyrighted works without obtaining a license from copyright holder is through the fair use clause, which is very vaguely defined and generally of little use if the copyright holder is a major corporation like Disney or FOX. so regardless of the intent of the law, the realities of copyright enforcement generally make fair use a moot point if the copyright holder actually decides to come after you.

case in point, one of the artists on our back catalog is a sludgemetal band called Acid Bath. (they're not particularly well known outside of metal circles, though they have garnered a cult following over they ears.) anyways, they released an album in 1994 (When the Kite String Pops, album artwork by John Wayne Gacy) with a track on it entitled "Dr. Seuss is Dead." so for about a decade and a half we sold merchandise related to this song, assuming it'd be covered under fair use.

well, about a year ago we were contacted by the "Seuss" estate and threatened with legal action if we didn't immediately take down all references to Dr. Seuss from our site and hand over our entire stock of CDs, DVDs, and t-shirts which made any reference to that song title. we were even forced to change the name of the song from "Dr. Seuss is Dead" to "is Dead" on iTunes. should we have taken the dispute to court and fought the charges? i, in my infinite optimism and naiveté, had initially thought so. but that was until my boss talked some sense into me and brought up other such cases which should have been covered by fair use rights & legal parody that ended with the verdict in favor of the plaintiff.

perhaps if we were Sony BMG or one of the other Big Four labels we could have stood in chance in court. but we're a small indie label with neither the legal muscle nor the financial means to sustain a long & drawn out legal battle.

You *do* know that the police have no legal obligation to protect any single person, right?

You can call them while being attacked, give them your exact location, and they aren't obligated to hurry up and rescue you. A murderer can steal your children and kill them. The cops don't have to do anything but take a report. It's up to *you* to defend yourself, your family, and your property. The cops are only obligated to keep the peace, investigate reports of criminal activities, and arrest folks committing crimes *in* *sight* of an officer of the law. They have an enormous amount of discretion when prioritizing the distribution of their limited manpower.

Examine the decision of Castle Rock v Gonzales for more information:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=04-278

Ye...yes. It is subjective. Of course it is. What, did you want them to write things in their ToS like "If you have pictures that bear a 90% or higher resemblance to a penis using (algorithm) then we reserve the right to ban you."? I think Facebook would agree with good old Justice Stweart: "I shall not today attempt further to define the kinds of material I understand to be embraced... But I know it when I see it..."

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=02-361 Libraries with public funding can filter porn. So can schools with public funding.

Thanks for the explanation, the Wikipedia link I posted was a little light on detail. I should have used a more informative link. Maybe I'll read the links I post in the future :)

What engineers?

Engineers like Mark Klein, who, by their statements, also clearly have a political agenda?

Engineers like Mark Klein, who have no direct knowledge of the implementation of the surveillance equipment?

Perhaps you could tell me how a system would work to "intercept" internet traffic which is lawful to intercept without being able to examine the "wrapper" of each packet.

You can't. And no, the answer isn't, "Well, that's NSA's problem, and right now they're violating the law." This isn't the answer for two reasons:

1. No, they're not violating the law, actually. An infrastructure being in place to allow for interception of foreign traffic passing through US equipment does not imply all traffic is being "intercepted" in a legal context. See 2.

2. Monitoring the metadata or "envelope" (source and destination information) of a communication is required to determine whether the traffic can be monitored with a warrant.

Such collection has been found to be legal without a warrant or court oversight by the US Supreme Court:

The telephone company, at police request, installed at its central offices a pen register to record the numbers dialed from the telephone at petitioner's home. Prior to his robbery trial, petitioner moved to suppress "all fruits derived from" the pen register. The Maryland trial court denied this motion, holding that the warrantless installation of the pen register did not violate the Fourth Amendment. Petitioner was convicted, and the Maryland Court of Appeals affirmed.

Source: Smith v. Maryland, 442 U.S. 735 (1979)

Courts have subsequently found that pen register statutes apply similarly to computer network addresses known as IP addresses, lists of web sites visited, and the "envelope" of an email message -- its To: and From: addresses and related information. The NSA itself has long understood that while the capture of the "metadata" of communications is fair game, the capture of the contents of the conversations of US Persons is not, without a warrant. Whether or not all traffic passes through a particular piece of equipment is immaterial.

The current law, as represented after the FISA Amendments Act of 2008 (HR 3773), sponsored by Rep. John Conyers (D-MI) and cosponsored by 7 other Democratic colleagues:

1. Clarifies that no court warrant is required to intercept communications of non-US Persons when both ends of the communications are outside the United States. (Even when the interception occurs within the US.)

2. Requires an individualized court warrant from the FISA Court when targeting US Persons. (Same as previous law.)

The interception mechanisms required to enable lawful foreign intelligence collection from the internet within the US necessitates the technical capability to monitor and potentially collect all traffic. It is not a crime, and the current, amended law that speaks to exactly this issue does not consider it a crime. The intelligence oversight committees in both houses of Congress know exactly how this has been implemented, and Congress overwhelmingly chose to protect telecom operators from liability -- both for their prior assistance and going forward -- as a result of their lawful assistance.

Your assertion has two problems:

"Develop a system that intercepts only the communications of interest"

This is a convenient Catch-22, usually for individuals grinding a political axe. This is often put forward as an argument because the implication is that it's impossible to build a system that can only intercept foreign traffic without first determining whether it's foreign traffic or not -- which itself requires examining at least the traffic's meta

The Supreme Court overturned the former ban on retail price ceilings a decade before they overturned the one on retail price floors. See State Oil v. Khan (1997), which held that a gasoline distributor could put a cap on the retail price the gasoline stations could resell it for.