Slashdot Mirror

How about read this case law? It is similar but not exactly. Though, it is in California court.

We don't let law enforcement DNA test random or innocent people, why should they get access to these databases to go around the law?

We do if law enforcement can get ahold of some "abandoned" DNA and it has been that way for years.

http://volokh.com/2011/10/06/c...

https://www.theguardian.com/uk...

http://volokh.com/2013/05/03/l...

http://www.independent.co.uk/n...

http://www.bbc.com/news/uk-eng...

https://www.theguardian.com/la...

https://www.cnet.com/news/lond...

https://www.amren.com/news/201...

https://www.reuters.com/articl...

https://www.thenewamerican.com...

You can actually make a case that Frank Herbert's "Dune" predicted the rise of Al Qaeda

http://www.volokh.com/posts/11...

California doesn't seem to have a problem defying Federal jurisdiction and Federal laws regarding "sanctuary cities" that shield illegal aliens from the consequences of violating Federal immigration laws.

It's not on individual states to enforce federal laws. The federal government has a pretty limited set of enumerated powers and commandeering state and local police to enforce federal laws isn't one of them. Historically they've cooperated, but they are not obligated to. See, for example, the Texas law enjoining state agencies from enforcing certain federal firearms laws. In general states can't obstruct, but aren't obligated to help either.

The stick the feds use is generally tying federal aid to compliance with certain directives. Want federal school funding? Comply with no child left behind. Want highway funds? Enforce the national speed limit, and so on.

Time for a refresher on the current state* of speech restrictions promulgated by government-as-employer. I think most people would understand that, when acting as an employer, the government has significantly more latitude than it would against a private citizen. At the same time, most people would understand that this lattitude has bounds of its own.

So cribbing the major part of the link above (but do read the whole thing), the place that the court put that balance* is that the government may not fire an employee based on the employeeâ(TM)s speech if (all of):

1. 1. the speech is on a matter of public concern
2. 2. the speech is not said by the employee as part of the employeeâ(TM)s job duties
3. 3. the damage caused by the speech to the efficiency of the government agencyâ(TM)s operation does not outweigh the value of the speech to the employee and the public

The application of these three standards to the instant case I think weighs in favor of the employee, but ultimately that's a fact-bound decision that would require reviewing what his or her job duties are, what the topic and contents of the tweets were and what sort of proof the government produces about the harm to the agency.

* Note: This is the current state of the law as it is, not the law as I wish it to be. You could say that this is the praxis of the law, not the truth of it. I have no beef with people that wish argue about what the law ought to be or what is a more correct interpretation of it. They may even be right and the practice of it currently wrong (it's surely happened many times in the past), that does not change what is currently practiced.

That's why we USED TO have a Senate. When the Senate changed to popular vote instead of appointment by the state governments it became just another House of Representatives.

A majority of states were already electing their US Senators by popular vote before the 17th Amendment so it made little difference.

The Supreme Court has explicitly included non-firearms and there have been court cases over knife regulations related to it. Unless they're non-fighting knives (i.e. made only for cooking, like a paring knife), they're arms.

Do you just make up your "facts" out of thin air, without even a quick google search to confirm them?

Actually, a University of Pennsylvania study (DOI: 10.2105/AJPH.2008.143099) examined over 600 incidents in the Philly area, and found that carrying a gun actually increases ones chances of getting shot and killed:

False conclusion. The data can't reveal the claimed relationship.

Maybe. I agree with a fundamental right to self defense and the 2nd amendment guarantee that we have a right to have guns, but I think tactically speaking you are most often better off withdrawing and not readying your weapon unless you are really backed into a corner or are ready and willing to be a meat shield for innocents. By its nature a premeditated mass shooting means they have a plan and you don't.

Still I think there are a variety of circumstances where the police are not going to be there to protect people in time to save lives. Actually most incidents like this the police are there well after the harm is already done and can do very little to save lives except to hopefully stop the perpetrators from escaping.

It would be better to have more individuals licensed to carry able to take down an attacker or small group of attackers. Or in the case of house to house attacks, especially where police are kept at bay or otherwise diverted, then having homes where people are able to defend themselves in their own home is absolutely going to save lives.

But home and neighborhood defense is different in that you know the environment and your attackers are at a disadvantage versus a planned attack in a public place that comes unexpectedly.

Actually, a University of Pennsylvania study (DOI: 10.2105/AJPH.2008.143099) examined over 600 incidents in the Philly area, and found that carrying a gun actually increases ones chances of getting shot and killed:

False conclusion. The data can't reveal the claimed relationship.

Most states, even those without explicit stand-your-ground laws, have legal language to the effect that a person is not required to attempt to flee.

That is exactly and only what a "stand your ground" law is: one that says there is no "duty to retreat". A substantial number of states still have a "duty to retreat" in some or all circumstances -- 19, by Eugene Volokh's count.

The 17th Amendment did not have much of an effect although I agree it should be repealed. By 1908, 28 of 46 states had popular election of senators and 9 other states required the legislature to take account of popular votes whatever that means so there was already a push at the state level which produced the same result.

http://volokh.com/2010/06/11/w...

Your post is essentially misdirection. Strasser wasn't the only member of the Nazi party that favored socialism. I seem recall that both Goebbels and Eichmann survived the Night of the Long Knives (A bit of an understatement.) for example. The National Socialists were not simply engaged in rhetoric but enacted a variety of policies consistent with socialism. I can understand the desperate attempt to claim that the National Socialists weren't really socialists in any way since some people conflate the concepts of socialism and goodness and the Nazis were certainly not good.

Hitler's Handouts - Inside the Nazis' welfare state

Adolf Eichmann viewed National Socialism and communism as “quasi-siblings,” explaining in his memoirs that he “inclined towards the left and emphasized socialist aspects every bit as much as nationalist ones.” As late as 1944, Propaganda Minister Josef Goebbels publicly celebrated “our socialism,” reminding his war-weary subjects that Germany “alone [has] the best social welfare measures.” ....

.... To “achieve a truly socialist division of personal assets,” he [Aly] writes, Hitler implemented a variety of interventionist economic policies, including price and rent controls, exorbitant corporate taxes, frequent “polemics against landlords,” subsidies to German farmers as protection “against the vagaries of weather and the world market,” and harsh taxes on capital gains, which Hitler himself had denounced as “effortless income.”

Aly demonstrates convincingly that Nazi “domestic policies were remarkably friendly toward the German lower classes, soaking the wealthy and redistributing the burdens of wartime.” And with fresh memories of Weimer inflation, “transferring the tax burden to corporations earned the leadership in Berlin considerable political capital, as the government keenly registered.”

For instance, at the outset of war Nazi economists established a “wartime tax of 50 percent on all wages” that applied only to the wealthiest Germans. In the end, Aly writes, “only 4 percent of the population paid the full 50 percent surcharge.”

Putting the Socialism Back Into National Socialism:

The idea that Nazism was an extreme form of "capitalism" and Hitler primarily a tool serving the interests of "big business" is a longstanding myth that even now retains a measure of popularity in some quarters. This, despite the fact that the full name of the Nazi Party was the National Socialist German Workers' Party, and that Nazi political strategy was explicitly based on combining the appeal of socialism with that of nationalism (thus the choice of name). Once in power, the Nazis even went so far as to institute a Four Year Plan for running the German economy, modeled in large part on the Soviet Union's Five Year Plans.

I. The Socialist Elements of Nazism.

Two recent books further explain the socialist elements of Nazi economic policy, and will hopefully put the final nails in the coffin of the myth that the Nazis were "capitalists" or free marketeers. In The Wages of Destruction: The Making and Breaking of the Nazi Economy, historian Adam Tooze describes the statist nature of Nazi economic policy in great detail, and concludes that the Nazis imposed greater government control over the economy than any other noncommunist regime in modern history. (pp. 658-60). Tooze notes that, even before the outbreak of World War II, government military spending accounted for some 20% of the GDP, while much of the rest of the economy came under government control as a result of the Four Year Plan and other similar measures.

In Hitler's Beneficiaries: : Plunder,

except for the ... 3rd

Come to think of it, I recall that there was a case last year in Nevada over exactly that, I wonder how that went?

http://www.volokh.com/2014/01/...
"So, this makes a differenceâ"in a high-trust, low-fraud country it generally is not necessary to invest in as elaborate security protections as elsewhere. As an analogy, consider that in the U.S. very few restaurants, stores, or hotels routinely post visible armed guards at their front door, whereas this precaution is not uncommon in other countries."

A great victory for the blogosphere

Very much so. And I will also point out that Eugene Volokh is quite an interesting fellow with a great blog. Lots of interesting commentary there. Legal Insurrection is another great legal blog.

Volokh worked for 12 years as a computer programmer. He graduated from UCLA with a B.S. in math-computer science at age 15, and has written many articles on computer software. Volokh was born in the USSR; his family emigrated to the U.S. when he was seven years old.

Because child prodigy is no longer in Soviet Russia, free speech comes to you!

The status of the law isn't all that different than it was 30 days ago. The only "win," defined as a finding that the NSA's activities may not be legal, is a preliminary injunction for two people, and the case has yet to be decided. That isn't a win yet. It is also unlikely that complainants in the suit winning the injunction will ultimately prevail upon appeal. You can read some informed legal commentary from an actual law professor here:

Another Problem With Judge Leon’s NSA Opinion: Absolute vs. Relative Measurements and Fourth Amendment Reasonableness
Can the DC Circuit Use the Mosaic Theory to Invalidate the NSA Telephony Metadata Program?

This same law professor comments on the last case here:

Judge Pauley of the SDNY Upholds NSA Section 215 Program

The bottom line is nothing is really different.

The status of the law isn't all that different than it was 30 days ago. The only "win," defined as a finding that the NSA's activities may not be legal, is a preliminary injunction for two people, and the case has yet to be decided. That isn't a win yet. It is also unlikely that complainants in the suit winning the injunction will ultimately prevail upon appeal. You can read some informed legal commentary from an actual law professor here:

Another Problem With Judge Leon’s NSA Opinion: Absolute vs. Relative Measurements and Fourth Amendment Reasonableness
Can the DC Circuit Use the Mosaic Theory to Invalidate the NSA Telephony Metadata Program?

This same law professor comments on the last case here:

Judge Pauley of the SDNY Upholds NSA Section 215 Program

The bottom line is nothing is really different.

The status of the law isn't all that different than it was 30 days ago. The only "win," defined as a finding that the NSA's activities may not be legal, is a preliminary injunction for two people, and the case has yet to be decided. That isn't a win yet. It is also unlikely that complainants in the suit winning the injunction will ultimately prevail upon appeal. You can read some informed legal commentary from an actual law professor here:

Another Problem With Judge Leon’s NSA Opinion: Absolute vs. Relative Measurements and Fourth Amendment Reasonableness
Can the DC Circuit Use the Mosaic Theory to Invalidate the NSA Telephony Metadata Program?

This same law professor comments on the last case here:

Judge Pauley of the SDNY Upholds NSA Section 215 Program

The bottom line is nothing is really different.

The fourth amendment has been dead since civil forfeiture became common.

Not dead, but badly bruised and put on the cart.

That really needs to be fixed, now.

Federal Case Could Make It Easier For Victims To Defend Themselves Against Civil Forfeiture
Pennsylvania judge calls civil asset forfeiture “state-sanctioned theft”
IJ Scores Major Federal Court Victory In Massachusetts Civil Forfeiture Case
The Rise of Asset Forfeiture Abuse
Bill Would Prohibit Asset Forfeiture In Michigan Without Criminal Conviction - State has been ground zero for money and property seizures

Unless it is addressed the problem will only get worse as local and state governments face funding squeezes due to tax shortfalls and growing pension funding problems.

The courts will decide if he engaged in computer crime and espionage. So far his activity is little different on the face of it than Philby's except enhanced with Soviet style political warfare techniques. (Remember the Soviet AIDs disinformation campaign?) Perhaps it is all as Snowden claims, or perhaps the former Soviet bloc intelligence officers are right and Snowden is a Russian asset. Russian intelligence tradecraft is among the best in the world, and they are patient.

As to the court cases, the only thing won so far is an injunction for 2 people. The matter has yet to be decided and appealed. It is very premature to claim victory for anybody. There are legal scholars that see things differently.

Another Problem With Judge Leon’s NSA Opinion: Absolute vs. Relative Measurements and Fourth Amendment Reasonableness
Can the DC Circuit Use the Mosaic Theory to Invalidate the NSA Telephony Metadata Program?

The courts will decide if he engaged in computer crime and espionage. So far his activity is little different on the face of it than Philby's except enhanced with Soviet style political warfare techniques. (Remember the Soviet AIDs disinformation campaign?) Perhaps it is all as Snowden claims, or perhaps the former Soviet bloc intelligence officers are right and Snowden is a Russian asset. Russian intelligence tradecraft is among the best in the world, and they are patient.

As to the court cases, the only thing won so far is an injunction for 2 people. The matter has yet to be decided and appealed. It is very premature to claim victory for anybody. There are legal scholars that see things differently.

Another Problem With Judge Leon’s NSA Opinion: Absolute vs. Relative Measurements and Fourth Amendment Reasonableness
Can the DC Circuit Use the Mosaic Theory to Invalidate the NSA Telephony Metadata Program?

There are 19 states that impose some "duty to retreat".

It is not reasonable to think that deadly force, or any force for that matter, is a justified response when "any" physical act is visited upon you.

However, a duty to retreat is very complicated and requires a jury to agree with your point of view; whether you are the prosecutor or the defendant.

I teach defensive firearm classes and concealed handgun permit classes. One of the things I teach is that if you're paying attention you should never have to draw your weapon and, if you do, it is unlikely you will have to fire a shot. However, students always raise a ton of "what if" questions.

I always answer the "what if" questions by explaining that if you're able to stand there and objectively go through a check list justifying why you're in fear of losing your life or of grievous bodily harm then you are probably not justified in using deadly force. When faced with impending death or serious bodily injury you will not be analyzing legal options; you will be trying to survive. When trying to survive, the firearm becomes one of many tools available to you to aid in your survival. Another tool includes tactically retreating.

I apologize when someone bumps into me even when it's their fault. I back away from aggressive drivers to avoid road rage incidents. I tend to be quite deferential to jerks and their rude behaviors. I want to avoid trouble and I go out of my way to make sure I do. I understand that someone might be acting like a jerk because they've had a rough morning or are just having a bad life in general. They aren't my problem and I will do whatever I can to keep them from becoming my problem.

On the other hand, if someone punches me it will be difficult for me to believe it is anything other than the start of an ongoing attack and will do whatever I have to do to survive. If increasing distance from my attacker is possible then I will do so because it is the safest, most efficient way to stop the immediate threat and to ready myself to respond with greater force if necessary.

In force-on-force simulations it is not unusual to see someone "run away" from the danger presented. The analysis and de-brief after the exercise centers on whether the person being attacked ran away in the safest and most effective way possible. The de-brief doesn't include admonition on why the student should have used their gun to stop the attack. Running away safely is a valid tool to survival.

I get nervous and become uncomfortable when someone, even joking, threatens violence. I winced when I read the parent post that started this discussion where the poster said, "doesn't mean I can't punch someone in the face." That attitude of justifiable violence for being offended is what scares me and it's fairly prevalent in these comments. Then again, I suspect that most of the people advocating a punch to the face are, as you call them, "internet tough guys" and, I hope, wouldn't actually commit the act of violence they are so quick to advocate.

If Snowden is a stock, I want to short him.

You wrote a great line, but there is little reality to it. Snowden isn't stock, he is a man that made some fateful decisions. After stealing massive amounts of highly classified documents he fled the country. He is now trapped in Russia, and that will be difficult to change. The President has said no to amnesty for Snowden, that he is facing prosecution for espionage. His passport has been canceled, and the only way the US State Department will provide him papers to travel is for a one way trip home. In the last day or so, Snowden wrote an open letter to the people of Brazil, offering to help investigate US spying in Brazil in exchange for asylum. If it wasn't clear before, that is essentially a public announcement that he is willing to sell out his country.

Rather than winning, Snowden is bringing about what he said he wants to avoid, which is a world filled by surveillance. More and more countries are beefing up their intelligence agencies and internet surveillance capabilities as a result of his revelations. Russia is one of those countries - they have passed new regulations that will enhance their ability for internal and internet spying to begin implementing some of the capabilities that he revealed. (That is especially ironic since now Snowden is trapped in Russia for at least the time being and the Russians are using the blueprints that he provided to enhance their spying. He is hoisted on his own petard. )

Diplomatic relations among many nations are now strained due to his revelations. Indonesia recalled its ambassador from Australia. The US and Germany are at loggerheads over intelligence cooperation. The US and the EU are have difficulties. As a result of these diplomatic problems there is growing mistrust among many nations in Europe, and how do they react? By reducing or cutting cooperation with allies and beefing up their own intelligence agencies and surveillance capabilities. They do this to both compensate for the loss of cooperation among agencies and as a defensive measure due to the mistrust caused by Snowden's leaks. Chancellor Merkel has brought a former head of intelligence into her government as a direct response to the German - American problems. France is significantly increasing its intelligence powers. We have already mentioned Russia. Finland is planning to increase their intelligence capabilities. The list goes on and on.

Of course this all plays to Russia's advantage. More than a few former Soviet block intelligence officers believe that Snowden is a Russian asset. He was certainly in touch with both Russia and its intelligence services long before it was publicly acknowledged. The Russian government said that it was surprised by Snowden showing up there, when in fact he stayed at the Russian consulate while he was in Hong Kong, and even had his birthday party there.

As to the US, there has been one preliminary lower court victory for 2 (two) people, and that has been delayed to allow for an appeal. The legal commentary (by actual lawyers) that I have seen on that "victory" makes it look like a poor bet as an end state for the long run.

Preliminary Thoughts on Judge Leon’s Opinion by Orin Kerr
The Procedural Problems With Judge Leon’s NSA Ruling by Orin Kerr

Orin S. Kerr - Biographical Sketch

Professor Kerr is a nationally recognized scholar of criminal procedure and computer crime law. His many articles have appeared in top journals including the Harvard Law Review, Yale Law Journal, and Stanford Law Review. Professor Kerr’s articles have been cited in over 100 judicial opinions, including decisions by the United States Supreme Court and all of the regional U.S. Courts of Appeals. In a recent stud

If Snowden is a stock, I want to short him.

You wrote a great line, but there is little reality to it. Snowden isn't stock, he is a man that made some fateful decisions. After stealing massive amounts of highly classified documents he fled the country. He is now trapped in Russia, and that will be difficult to change. The President has said no to amnesty for Snowden, that he is facing prosecution for espionage. His passport has been canceled, and the only way the US State Department will provide him papers to travel is for a one way trip home. In the last day or so, Snowden wrote an open letter to the people of Brazil, offering to help investigate US spying in Brazil in exchange for asylum. If it wasn't clear before, that is essentially a public announcement that he is willing to sell out his country.

Rather than winning, Snowden is bringing about what he said he wants to avoid, which is a world filled by surveillance. More and more countries are beefing up their intelligence agencies and internet surveillance capabilities as a result of his revelations. Russia is one of those countries - they have passed new regulations that will enhance their ability for internal and internet spying to begin implementing some of the capabilities that he revealed. (That is especially ironic since now Snowden is trapped in Russia for at least the time being and the Russians are using the blueprints that he provided to enhance their spying. He is hoisted on his own petard. )

Diplomatic relations among many nations are now strained due to his revelations. Indonesia recalled its ambassador from Australia. The US and Germany are at loggerheads over intelligence cooperation. The US and the EU are have difficulties. As a result of these diplomatic problems there is growing mistrust among many nations in Europe, and how do they react? By reducing or cutting cooperation with allies and beefing up their own intelligence agencies and surveillance capabilities. They do this to both compensate for the loss of cooperation among agencies and as a defensive measure due to the mistrust caused by Snowden's leaks. Chancellor Merkel has brought a former head of intelligence into her government as a direct response to the German - American problems. France is significantly increasing its intelligence powers. We have already mentioned Russia. Finland is planning to increase their intelligence capabilities. The list goes on and on.

Of course this all plays to Russia's advantage. More than a few former Soviet block intelligence officers believe that Snowden is a Russian asset. He was certainly in touch with both Russia and its intelligence services long before it was publicly acknowledged. The Russian government said that it was surprised by Snowden showing up there, when in fact he stayed at the Russian consulate while he was in Hong Kong, and even had his birthday party there.

As to the US, there has been one preliminary lower court victory for 2 (two) people, and that has been delayed to allow for an appeal. The legal commentary (by actual lawyers) that I have seen on that "victory" makes it look like a poor bet as an end state for the long run.

Preliminary Thoughts on Judge Leon’s Opinion by Orin Kerr
The Procedural Problems With Judge Leon’s NSA Ruling by Orin Kerr

Orin S. Kerr - Biographical Sketch

Professor Kerr is a nationally recognized scholar of criminal procedure and computer crime law. His many articles have appeared in top journals including the Harvard Law Review, Yale Law Journal, and Stanford Law Review. Professor Kerr’s articles have been cited in over 100 judicial opinions, including decisions by the United States Supreme Court and all of the regional U.S. Courts of Appeals. In a recent stud

The NSA is destroying the US economy ...

Look, it's getting out of control. ...

RESPECT THE CONSTITUTION!

It isn't the NSA that is destroying the economy but rather unwise policies in Washington, mainly economic and regulatory. Although this administration is driving off the road on more than one issue.

The thing that is out of control is the hysteria about the NSA. The NSA itself is probably doing little different than it was 5 years ago when there didn't seem to be much of anybody saying that things were out of control, at least about the NSA.

It is one thing to respect the Constitution when you agree with what it says, but will you still respect the Constitution if it turns out to say and mean something that you don't expect, that you disagree with? That has happened many times before. That sort of thing can happen when you take the text of the Constitution and legal precedent and apply it to a situation in real life, or when new questions arise. Then you have a test to see how devoted you are to the Constitution.

There was a day years ago when some in the US fought what they considered to be tyranny by the Federal government that was crushing what they considered to be their rights under the Constitution. Their leader made a declaration that has become famous, or infamous, as you will, as to their stand. Do you think they were any less certain than you about their stand? What was the outcome of that? -- The President's address

Judge Leon Enjoins NSA Telephony Metadata Program in Larry Klayman Lawsuit

. I'm just not confident enough will be awake in time to prevent some very very bad things from happening in a very short time.

Too late, and it wasn't symmetric.. Just label it excerpts from the road towards a one party state.

What about the prosecutor that threatened Mr. Swartz with 30 years in jail for actions that most civilized people think should have been dealt with by the University administration, or maybe by the civil courts. Was it responsible to threaten a person with 30 years in jail for disregarding an EULA?

He wasn't facing anywhere near 30 years. The prosecutors told Swartz that they thought the judge might go as high as 7 years. That was if he went to trail, lost, and the prosecutor's largest damage number was accepted. If he pled guilty, the most he was facing was 6 months. See Orin Kerr's detailed analysis.

The Volokh Conspiracy had some interesting comments in August: Geoffrey Stone Added to NSA Surveillance Review Committee

The Volokh Conspiracy had some interesting comments in August: Geoffrey Stone Added to NSA Surveillance Review Committee

Some legal professors, who know more than I do, think the court was a little insane with their suggestion that the NSA was lying to them

http://www.volokh.com/2013/09/11/fisa-uncanny-valley-article-iii/

Conventiently not mentioning his other, more fundamental, oath to protect the US constitution?

I don't believe that contractors swear an oath to protect the Constitution, and even if they did, who did Snowden vet his personal interpretation of the Constitution with? Nobody, I expect. Assuming his intentions were actually "good," he just decided he didn't like it and broke the law. As to the constitutionality of the programs, Professor Geoffrey Stone of the University of Chicago Law School has some views on that.

Also, "arguably affecting the privacy"... We can omit the "arguably" here, it seems to me; that has been Snowden's main point (which has not been creditably disputed, as far as I know).

That's something of a philosophical question. If they collect and large amounts of data, which the phone company already has, but only look when they have a warrant, is it an invasion of privacy? Is it collection and storage that is a violation, or is it where there is a person looking at the data? I would say the looking. I can certainly understand how the storing would be an uncomfortable point.

But as to Snowden, it is clear at this point that he went way beyond questions of privacy in what he grabbed. He disclosed information on anti-terrorism operations, such as against Bin Laden and others. That has nothing to do with the privacy of American citizens.

Cleverly mentioning "Snowden sympathizers" and "anti-American activists" in close conjunction. The implication being, without actually demonstrating, that they are one and the same. Echoes of Al-Qaeda and Iraq, a decade ago. Bolton's statement that these have "controlled the story line" is arguably true, but not for lack of trying.

No, it is pretty straight forward that Snowden sympathizers and anti-American activists are overlapping groups, but not the same despite your claim. I don't believe that the US government ever claimed that Iraq was involved in 9/11 as part of the plot. Iraq was a state sponsor of terrorism, that is beyond dispute. There were contacts between the members of the Iraqi government and al Qaida members. Al Qaida members were present in Iraq.

Hm, that contradicts the point you were making about how thousands of operatives were already in grave danger. Although I suppose you will say that you were talking about UK operatives. Ok, I'll give you that, sort of.

Actually I'm completely correct. Bolton was referring to US agents, I referred to British agents. I don't believe the actual number of agents was revealed.

Do you really not see the hypocrisy here? For years the West has accused China and Russia of doing exactly what they were themselves doing all along. So the "damage" here is that the falsely claimed moral highground is now exposed as dishonest fiction.

Was the West, the US, doing it all along? I don't think that has been established. I think it is also highly doubtful that the US or any country in the West has strong human intelligence in either China or Russia, certainly not to the degree they have on the US or Europe. The history seems to indicate that Eastern Block nations and China were pursuing computer espionage much more seriously long before the US or Europe. If you haven't, you should read The Cuckoo's Egg about an early documented case in the 80s. The author had a difficult time getting the gov

Trolls generally don't announce what they're selling up front and the sealed settlements generally prohibit anyone saying what they're paying, but it appears that they want about 7-8% for each patent, which means that if your product has more than 4-5 patents in it, your patent payments will quickly become larger than your payroll. If it has more than 12 or so, your software becomes impossible to produce.

Sewing machines had this problem years ago, where rather than patenting a thing, people had run up patents on every little individual piece of the thing from the motor to the needle, so now you have patents on interactive help menus and file dialogs and filesystems in addition to patents on finding out how long you have to wait for your bus to arrive. The solution back then was The Sewing Machine Patent Combine which pooled together the patents and paid the members their share of the royalties from them. Setting aside how it would permanently destroy free (beer or speech) software, that worked fine when there were only 3 patent holders, but history has shown that the more holders there are the more likely someone is to fuck over the combine for profit (eg Rambus screwing over JEDEC by not disclosing its patents to the pool). Why would someone settle for a fraction of the patent pool when they could suck 7-8% direct from the source, especially when the proceeds would have to be divvied up between tens of thousands (if not more) patents?

If I put up a web site that forbid anyone working for or on behalf of any TLA or law enforcement agency from accessing any publically accessible content on my site could I use CFAA against the government when they ignore my wishes and suck the whole thing into a NSA database?

No. Read the opinion.

Now, if you gave notice to the individual agencies that they weren't welcome and instituted a technological control measure to block them from accessing it and they circumvented that block, then it would fall within the four corners of the opinion.

[ And anyway, there's probably a provision in the CFAA exempting law enforcement, but even if there weren't, your hypo doesn't even being to cover the fact pattern necessary here. ]

The Computer Fraud and Abuse Act treats both "unauthorized access" and "exceeding authorized access" as essentially equivalent. The second case is where you had an account but used it in unauthorized ways. This has some obvious vagueness and overreach problems. Did the CFAA drafters really mean to criminalize ToS violations, for example?

Here [pdf] is a proposed amendment to the law from law professor Orin Kerr.

Yeah, I'm rather fond of the Reverse Mussolini Fallacy, too.

As much as I don't necessarily agree with the logic of this USSC ruling, you've got how it works completely wrong.

If you say "I have the right to remain silent. 5th amendment.", you've invoked your rights, the cops/prosecutor must respect that and it can't be used against you at trial.

What the ruling said was that if you aren't being held (you're answering voluntarily) and you just stay silent in response to a questions, you haven't explicitly invoked your 5th amendment rights and so the prosecutor can bring up your silence to the jury. The opinion specifically says that if you actually invoke your 5th amendment rights, then they can use that invocation, nor the following silence, against you.

"... it did not violate Salinas’s Fifth Amendment right to comment on his silence because he never formally asserted his Fifth Amendment right ..."
  See this from a law professor for a more detailed explanation.

Orin Kerr has the usual detailed and insightful analysis of the case here (long, worth reading):

http://www.volokh.com/2013/06/17/do-you-have-a-right-to-remain-silent-thoughts-on-the-sleeper-criminal-procedure-case-of-the-term-salinas-v-texas/

tl;dr - Don't talk to the police.

However, the danger of the Islamic terrorism can not, and should never, be used to justify the destruction of the Constitution of the United States of America

  Two wrongs can never make a right, sir !!

I quite agree with you, the Constitution must be respected. And I acknowledge that this matter is treading on what could rightly be considered troubled ground, if not dangerous ground. Various parts of the federal government, from time to time, have engaged in behavior that didn't always properly respected the rights of Americans. Sometimes it takes a while to get it sorted out.

From what I have read, I think there are reasonable grounds to be concerned, but not to panic. While it is possible there is a genuine problem, that is far from clear. Congress needs to engage with this to perform good oversight. As more has been coming out, and responsible analysis of it performed, I'm beginning to think that it is unlikely there is a real legal problem. The biggest problems will be perception, political, and the potential for abuse, not actual abuse. I would feel much more comfortable about this if the IRS sandal hadn't demonstrated a wanton breakdown of protections inside a government agency with high potential for serious abuse.

One of the big problems with even discussing something like this is that It is fairly common for people to misunderstand the actual meaning and implications, or even existence, of the law, whether it is Constitutional, criminal, or the law of war. And sometimes there is a real question even in the legal community about what those rights really are, where the boundaries are, and what does it mean? Slashdot is no exception. There are many fanciful, faulty, or just plain wrong, ideas about how the Constitution works, the law works, what the courts have said, and what it all means. It really tends to come out at times like this.

I found this helpful:

Minimization and the “Collection First” Surveillance Model
Why Does a Terry Standard Apply to Querying the NSA Call Records Database?
The Debate on NSA and PRISM: Andrew McCarthy and Conor Friedersdorf
Helping The Terrorists Avoid Detection and Capture, 2013 Edition

I understand the danger of Islamic terrorism, first hand

I can't tell you where I am, suffice to say that I am posting this comment from outside of the United States of America, and my primary task is to penetrate some of the more virulent Islamic circles to obtain info on the global jihadist movement

I'll read between the lines and say thank you for your service, of whatever variety it is. Respect OPSEC. I pray for your safety, and that you have good hunting.

Take care.

However, the danger of the Islamic terrorism can not, and should never, be used to justify the destruction of the Constitution of the United States of America

  Two wrongs can never make a right, sir !!

I quite agree with you, the Constitution must be respected. And I acknowledge that this matter is treading on what could rightly be considered troubled ground, if not dangerous ground. Various parts of the federal government, from time to time, have engaged in behavior that didn't always properly respected the rights of Americans. Sometimes it takes a while to get it sorted out.

From what I have read, I think there are reasonable grounds to be concerned, but not to panic. While it is possible there is a genuine problem, that is far from clear. Congress needs to engage with this to perform good oversight. As more has been coming out, and responsible analysis of it performed, I'm beginning to think that it is unlikely there is a real legal problem. The biggest problems will be perception, political, and the potential for abuse, not actual abuse. I would feel much more comfortable about this if the IRS sandal hadn't demonstrated a wanton breakdown of protections inside a government agency with high potential for serious abuse.

One of the big problems with even discussing something like this is that It is fairly common for people to misunderstand the actual meaning and implications, or even existence, of the law, whether it is Constitutional, criminal, or the law of war. And sometimes there is a real question even in the legal community about what those rights really are, where the boundaries are, and what does it mean? Slashdot is no exception. There are many fanciful, faulty, or just plain wrong, ideas about how the Constitution works, the law works, what the courts have said, and what it all means. It really tends to come out at times like this.

I found this helpful:

Minimization and the “Collection First” Surveillance Model
Why Does a Terry Standard Apply to Querying the NSA Call Records Database?
The Debate on NSA and PRISM: Andrew McCarthy and Conor Friedersdorf
Helping The Terrorists Avoid Detection and Capture, 2013 Edition

I understand the danger of Islamic terrorism, first hand

I can't tell you where I am, suffice to say that I am posting this comment from outside of the United States of America, and my primary task is to penetrate some of the more virulent Islamic circles to obtain info on the global jihadist movement

I'll read between the lines and say thank you for your service, of whatever variety it is. Respect OPSEC. I pray for your safety, and that you have good hunting.

Take care.

Justices Scalia and Thomas only agree about 86% of the time over the long haul. Most of the other Justices also have 80%+ agree percentages with at least one other Justice.

The more interesting contrast is Scalia and Breyer.

"Justice Scalia has been on the defense side of every non-unanimous Fourth Amendment case this term: King (today’s case in which he wrote the dissent), Bailey (in which he joined the 6-3 majority), Jardines (in which he wrote the majority), and McNeely (in which he joined the Sotomayor plurality/majority opinion). In contrast, Justice Breyer has been on the government’s side in each of the Term’s non-unanimous Fourth Amendment cases: King (in which he joined Kennedy’s majority), Bailey (in which he wrote the dissent), Jardines (in which he joined the dissent) and McNeely (in which he joined the more government-friendly Roberts concurrence/dissent with Alito)." - Orin Kerr

You know, until that happened, you'd just be a tin-foil hat wearer, without a shred of credibility to you. Actually, you still are. But thanks to the colossal mistake of a couple of people in the IRS and Obama's total and complete inability to deal with a scandal, that singular act has managed to make the tinfoil hat crowd look more credible than the government.

Well, you know what, okay. Out of the thousands of times Obama and the "rabid liberals" have gotten it right, after six years of constant, sustained, unending attempts by the Republicans to find something, anything, to sink Obama even if it means repeatedly punching themselves in the face (Comeon guys, with all the major issues out there, your party platform for the previous four years has been trying to ensure Obama didn't get re-elected. Petty much?)... I suppose yes, with that much scrutiny eventually something had to pan out.

So take this one, singular victory. Have it, it's yours. You can feel righteous for a bit now -- you have a right to be upset

Well, that's mighty white of you. You are indeed a generous spirit.

True Scandal - A tea-party group ... gets attention from the IRS—and the FBI, OSHA, and the ATF.
The IRS Fiasco Is Only The Tip Of The Iceberg
A Frequent Visitor to the White House

...Douglas Shulman, Commissioner from 2008 to 2012, during the Obama administration, visited the White House 118 times just in 2010 and 2011. His successor, Steven Miller, also visited “numerous” times.

Lawmakers say IRS targeted dozens more conservative groups than initially believed

The IRS targeting of conservative groups is far broader than first reported, with nearly 500 organizations singled out for additional scrutiny, according to two lawmakers briefed by the agency

IRS Admits Targeting “Tea Party” Groups
The New Nixon This time, the press cheered as the IRS investigated the president's opponents.
Tea party groups call IRS process 'nightmare'
IRS approved liberal groups while Tea Party in limbo
Curious IRS Timing - Did the tax agency also target groups that support Israel?
Obamacare + IRS = gangster government
7 Questions That The IRS Inappropriately Asked Of Tea Party Groups
The IRS’s Tea-Party Targeting - An apology, but no explanation
Did The IRS Try To Swing Election To Obama?

Jon Stewart and Steven Colbert

There is no Constitutional right to have a lawyer during questioning, only a Constitutional right not to have any statements you make during such questioning introduced at trial. Since they have ample other evidence by which to convict Tsarnaev without using any such statements, there is no particular reason to Mirandize him. We can just accept that the statements made without advising him of his rights are not admissible in court.

See this excellent summary by Orin Kerr for a bit of explanation of how it actually works (as distinct from how you or I or him believe it ought to work). You can also read the Supreme Court's decision in Chavez v. Martinez, 538 U.S. 760 (2003) directly, if you prefer,

Orin Kerr from the Volokh Conspiracy has this to say about the "new" draft CFAA:

http://www.volokh.com/2013/03/25/house-judiciary-committee-new-draft-bill-on-cybersecurity-is-mostly-dojs-proposed-language-from-2011/

"Stop taking DOJ’s language from back in 2011 and packaging it as something new. Based on a quick read, it seems that the amendments for 1030 in the new draft are mostly copied from a bill that Senator Leahy offered (with substantial input from DOJ, as I understand it) back in November 2011. I criticized that language here. The new circulating draft also adopts the sentencing enhancements (minus mandatories) and the proposed 1030a that DOJ advocated in May 2011. I criticized that initial DOJ language here. (There’s also a breach notification provision in the new language, but I haven’t followed that issue closely; I don’t know if that proposal is also based on old language.)

In some ways, the new circulating language is even more severe and harsh than DOJ wanted even in the Lori Drew case. For example, the proposed language would make it a felony crime to violate Terms of Service if the TOS violation:

        (I) involves information that exceeds $5,000 in value;
        (II) was committed for purposes of obtaining sensitive or non-public information of an entity or another individual (including such information in the possession of a third party), including medical records, wills, diaries, private correspondence, financial records, photographs of a sensitive or private nature, trade secrets, or sensitive or non-public commercial business information;
        (III) was committed in furtherance of any criminal act in violation United States or of any State, unless such state violation would be based solely on the obtaining of information without authorization or in excess of authorization; or
        (IV) involves information obtained from a computer used by or for a government entity;

This language is really, really broad. If I read it correctly, the language would make it a felony to lie about your age on an online dating profile if you intended to contact someone online and ask them personal questions. It would make it a felony crime for anyone to violate the TOS on a government website. It would also make it a federal felony crime to violate TOS in the course of committing a very minor state misdemeanor. If there is a genuine argument for federal felony liability in these circumstances, I hope readers will enlighten me: I cannot understand what they are.

In short, this is a step backward, not a step forward. This is a proposal to give DOJ what it wants, not to amend the CFAA in a way that would narrow it. "

Volokh has a somewhat more thorough summary of the decisions here:

http://www.volokh.com/2013/03/08/interesting-ninth-circuit-en-banc-on-computer-searches-of-course-citing-orin/

        [A] border search of a computer is not transformed into an “extended border search” requiring particularized suspicion simply because the device is transported and examined beyond the border.... [T]he fact that the forensic examination occurred 170 miles away from the border did not heighten the interference with the defendant’s privacy, and the extended border search doctrine does not apply, in this case in which the defendant’s computer never cleared customs and the defendant never regained possession....

        [T]he forensic examination of the defendant’s computer required a showing of reasonable suspicion, a modest requirement in light of the Fourth Amendment.... [I]t is the comprehensive and intrusive nature of forensic examination — not the location of the examination — that is the key factor triggering the requirement of reasonable suspicion here.... [T]he uniquely sensitive nature of data on electronic devices, which often retain information far beyond the perceived point of erasure, carries with it a significant expectation of privacy and thus renders an exhaustive exploratory search more intrusive than with other forms of property....

        [In this case,] the border agents had reasonable suspicion to conduct an initial search at the border (which turned up no incriminating material) and the forensic examination. The en banc court wrote that the defendant’s Treasury Enforcement Communication System alert, prior child-related conviction, frequent travels, crossing from a country known for sex tourism, and collection of electronic equipment, plus the parameters of the Operation Angel Watch program aimed at combating child sex tourism, taken collectively, gave rise to reasonable suspicion of criminal activity. ...

        [P]assword protection of files, which is ubiquitous among many law-abiding citizens, will not in isolation give rise to reasonable suspicion, but ... password protection may be considered in the totality of the circumstances where, as here, there are other indicia of criminal activity.... [T]he existence of password-protected files is also relevant to assessing the reasonableness of the scope and duration of the search of the defendant’s computer.... [T]he examination of the defendant’s electronic devices was supported by reasonable suspicion and that the scope and manner of the search were reasonable under the Fourth Amendment.

The key phrase there is "as much." It turns out that conservatives edge out liberals in their support of censorship by a fairly narrow margin. In my experience, there's also a big difference between the types of ideological control that the two groups would enact, with liberals being more commonly in favor of, for example, odious "hate speech" laws and compulsory "diversity" training.

According to this, there's nothing that prevents "obscene" material from being copyrighted:

http://www.volokh.com/2012/02/09/can-obscene-materials-be-copyrighted/

1. Quote Martin Luther King as saying disidents should be proud to go to jail.

Not everyone is heralded like Mandella with a large base of supporters and international attention. Most are swallowed up by the penal system never to be heard from again. Only their family remembers. Look what happened to John Kiriakou who blew the whistle on illegal torture. He's gone away for 30 months. http://dissenter.firedoglake.com/2013/01/28/convicted-cia-whistleblower-john-kiriakou-confronts-government-talking-points-on-nbcs-today-show/


Whistleblower John Kiriakou said "I am proud that I stood up to our government. I am not a criminal. I am a whistleblower. Torture is illegal and it’s officially abandoned in our country and I’m proud to have had a role in that." Sounds a bit like Patrick Henry's "Liberty or Death". A hero right? And yet...

Don't expect the media to save you. NBC's Savannah Guthrie began her interview of him: "Some people say you betrayed your former colleagues in order to raise your media profile in order to sell books and get a consulting business going." Are *you* going to be holding a candlelight vigil for a cad of a man who betrayed his country to sell books?

Don't expect the judge to save you: The US District Court Judge Leonie Brinkema said on Friday that Kiriakou had damaged the CIA. She called the sentence, the result of a plea arrangement with prosecutors, "way too light". Before issuing the sentence, the judge asked Kiriakou if he had anything to say. When he declined, she said: ''Perhaps you have already spoken too much.''
This book tells how once you're jailed the public think you deserve it and quickly forget about you. http://books.google.com/books?id=Tu5RB6YHf10C&pg=PP1&lpg=PP1&ots=51Ya4U8XFt&dq=lynch+in+the+name+of+justice (Go to page 43 of this Google Books preview).


2. Swartz broke the law and should do the time.

These posts are usually accompanied by an anal exploration of the relevant statute by watched too many courtroom dramas and thinks they are real life, but was there ever an Episode of Law & Order when McCoy said "Let's fuck this college kid over! I want a promotion! "

People who post these overlook the whole point that these are unfair laws. Volokh showed how unfair they are when he wrote a TOS that could be used to send anyone to jail named "Ralph".
http://www.japantimes.co.jp/text/eo20120803gw.html
http://www.amazon.com/Arrest-Proof-Yourself-Ex-Cop-Reveals-Arrested/dp/1556526377
http://www.volokh.com/posts/1227896387.shtml

Guilty:

"But I think it’s pretty clear that Swartz exceeded his authorized access here. JSTOR has a password-protected database that Swartz was trying to copy by circumventing code-based barriers to large-scale acces, and Swartz was playing a cat-and-mouse game in which he kept trying to gain access to the database and JSTOR kept trying to block him."

http://www.volokh.com/2013/01/14/aaron-swartz-charges/

Intent is also an important issue. He was clearly going to download all the articles and distribute them without permission.

He deserved to be brought to trial. The prosecution had a right to be brought against him.

Swartz turned down a plea deal for six months because he didn't believe he was guilty of any crime. This was despite the fact that if you look he acted in an underhanded manner to violate the rights of the creators of JSTOR database and he actually did violate several computer crime laws, see http://www.volokh.com/2013/01/14/aaron-swartz-charges/

The reason he's dead, then, isn't overzealous prosecution. It's that he refused to face the reality that what he did was against the law.