Slashdot Mirror

Not exactly. Go here for a summary of things he did to circumvent access restrictions (in section I). Even this may not justify the way he was treated but he did more than use a script to automate saving documents.

I don't see how any of your argument applies to the Swartz case. Swartz makes the worst poster boy for criminal justice reform ever.

He was not a disadvantaged minority. He was not poor, was not a "poor looking defendant". He was a rich white college educated adult. He was a faculty member at Harvard University. It was not a case of manufactured or suppressed evidence. There was solid evidence that he committed the crimes of which he was accused. He was not forced to use a public defender.

And most importantly, this was not a good example of the abuse of plea bargaining. The cases where the plea bargain system are most troublesome are the cases where the defendant has to make the choice between a guilty plea and a trial - while sitting in a jail cell unable to make bail. The choice Swartz faced was a fair one. The choice someone makes when faced with a guilty plea to a felony and a 6 month sentence, or who knows how long in jail during the trial and sentencing is much less fair.

As Orin Kerr wrote:

These sorts of tactics have been going on for years, without many people paying attention. If we don’t want a world in which prosecutors have these powers, we shouldn’t just object when the defendant in the crosshairs is a genius who went to Stanford, hangs out with Larry Lessig, and is represented by the extremely expensive lawyers at Keker & Van Nest. We should object just as much — or even more — when the defendant is poor, unknown, and unconnected to the powerful. To do otherwise sends an extremely troubling message to prosecutors that they need to be extra sensitive when considering charges against defendants with connections. We have too much of a two-tiered justice system already, I think.

So much of the response to the case - not yours specifically - seems to be simply tribal. It doesn't seem that people in general care that prosecutors use these powers every day against poor or disadvantaged people. It seems to bother people here that the prosecutors dare use these tactics against one of us.

From the second Kerr link:

Why are you hearing that Swartz faced 35 or 50 years if it was not true? First, government press releases like to trumpet the maximum theoretical numbers. Authors of the press releases will just count up the crimes and the add up the theoretical maximum punishments while largely or completely ignoring the reality of the likely much lower sentence. The practice is generally justified by its possible general deterrent value: perhaps word of the high punishment faced in theory will get to others who might commit the crime and will scare them away. And unfortunately, uninformed reporters who are new to the crime beat sometimes pick up that number and report it as truth. A lot of people repeat it, as they figure it must be right if it was in the news. And some people who know better but want you to have a particular view of the case repeat it, too. But don’t be fooled. Actual sentences are usually way way off of the cumulative maximum punishments.

So if it serves as a deterrent we should be fooled, but if it applies to ourselves we shouldn't be? Personally I would be scared shitless if I saw the DOJ itself make statements like that about me. Just be truthful. The US already is highly punitive [pdf, see page 11-12] compared to other western countries (27 times as high as where I live). If that by itself doesn't work as a deterrent then exaggerations probably won't do much either, apart from increasing the likelihood of people killing themselves.

If bullying is part of the system, then yes, the system should be targeted. But not just by outsiders, the prosecuters themselves should have opposed the system instead of participating in the bullying. And as they did participate they should be targeted as part of the system.

Volokh analysis of what Swatz actually did, with detailed history:

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

I assure you, an MIT enrollee or grad would have gotten the same treatment.

Many people argue that if you break the law on principle and don't accept the punishment you're doing it wrong. This is incorrect. There are, as you so nicely illustrate, other approaches. Indeed, the reason for acquiescing to punishment is precisely to highlight the law's abuse! Arguing that protest is unethical if it does not accept punishment is a neat trick. In effect, it is often little different from arguing that the law is right because it is the law.

The problem is that the American civil rights movement has been taken a standard for protest. But it was an unusual case. The protesters knew that they were in fact acting in accordance with their legal rights, and could appeal to the federal government for support. This is hardly a universal illustration of how to defy the law.

The strategy of the civil rights movement began with a legal agenda pursued by the National Association for the Advancement of Colored People (NAACP), resulting in a number of Supreme Court decisions in the 1940s and 1950s affirming the civil rights of African Americans. Activists then attempted to nonviolently assert those rights, knowing that segregationists would respond with violence. The ensuing crisis would compel the federal government to enforce rights upheld by the courts.

The other standard for civil disobedience is Gandhi. But like the civil rights movement, he used it because it was an effective tactic:

. . . where there is only a choice between cowardice and violence, I would advise violence. . . . I would rather have India resort to arms in order to defend her honour than that she should, in a cowardly manner, become or remain a helpless witness to her own dishonor. But I believe that nonviolence is infinitely superior to violence, forgiveness is more manly than punishment.

The underground railroad is an example that makes clear that the ideal of submitting to punishment can be antithetical to principled, legitimate defiance of the law. On the Volokh Conspiracy, a commenter named Mark Nelson makes the point:

I'm rather confused by the widespread misconception (repeated here) that civil disobedience is primarily about being willing to serve jail time. That's one possible tactic, to draw attention to a cause and the injustice of a law by being arrested amidst much publicity. But it's not the only or historically the main tactic. Another major reason for civil disobedience is to render a law unenforceable by flouting it. That may (depending on the person/situation) be intended either to eventually get the law changed by demonstrating to the public that it's manifestly unenforceable, or simply to directly circumvent it, effectively nullifying it whether it gets repealed or not.

The tactic can actually be enhanced by not being caught in some cases. One famous American example: the Boston Tea Party was an act of civil disobedience performed by people who took some care to ensure they would not be caught. It was mostly an act of symbolic politics, but did not involve anyone getting arrested as part of the symbolism: they disguised themselves and escaped with impunity. Anon Y. Mous also mentions the Underground Railroad, another prominent example of civil disobedience explicitly aimed at violating the law without being caught, in that case of the direct-circumvention variety.

In Swartz's case, the goal was simply to release academic papers to the public, producing an actual "fact on the ground", not to make a symbolic protest against intellectual property by going to jail.

The idea that one cannot legitimately protest the law without suffering for it is an oddly puritanical myth that needs to be debunked.

I did read that blog and it's complete and utter bullshit that tries to whitewash the issue and claim that the case cannot be criminal because he wasn't trying to make money.

His intent is NOT relevant.

If I break into your house with merely the intent to read some of the books you have - I'm still guilty of breaking and entering and criminal trespass and deserve jail time.

So it's NOT relevant that Aaron was downloading academic journals with no intent to sell them. What is relevant is that he gained unauthorized access to a system despite numerous efforts by the administrators to keep him out.

The final term of his sentence can be determined by plea bargaining and if that is not successful the court. His sentence is NOT for circumventing the paywall leeching bandwidth.

Since you seemed eager to suggest that I read about the case - I suggest you do the same - just from a less biased source:
http://www.volokh.com/2013/01/14/aaron-swartz-charges/
 

I am sorry that he killed himself, I am even more sorry that he chose to comit acts that should have been obviously criminal to him.

This says a lot about you as a person. You would prefer that this man die than he get off without spending half his life in prison. I am an atheist myself. Always have been. But the message about compassion and kindness and forgiveness, enforced by cultural norms and a belief in eternal damnation, is as needed in the world now as it ever was. And it's due to people like you who would rather see this guy dead than him getting away with downloading some files. People like you make me almost physically ill.

I wish he had not commited the criminal acts because THAT is the root of the problem.

If he had not killed himself, he would still at best end up with a criminal history - which for an "Ethics Fellow" at Harward would have been devastating. He'd also end up with a probation of several years that probably limited if not outright prohibited computer use.

So yes - I do wish that he never escalated his actions beyond the wifi connection. Fact is that if he had not made the choice to physically enter MIT facilities and plug in a laptop this case would NOT exist. The authorities were NOT invovled until he hooked into the network closet.

You can say that I make you sick, that I am blood thirsty and what not - I really don't care. Educate yourself on the case and the charges ( http://www.volokh.com/2013/01/14/aaron-swartz-charges/ ) or just keep ranting and raving. The fact is that the case and charges against Aaron Swartz were sound.

I am unsure what caused an otherwise smart individual to take the path he took. I wish he had not. Still the blame lies with Aaron Swartz alone - both for the unauthorized access and the suicide.

No, he was charged with wire fraud, computer fraud, unauthorized access, and computer damage, with the terms that the law specifies for that.

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

It's pretty clear from many of the top voted comments that most people here have no clue what Swartz was actually doing. On the off chance that some people might want to base discussion on facts, here's a nice post by a law professor who has worked, for both defense and prosecution, on these kind of cases, covering what Swartz was actually alleged to have done and analyzing the charges.

I urge anyone who wants to have an informed opinion on the topic to read this for a legal analysis (and also to return for "Part 2" when available). This is an informed opinion, and obviously one which you need not agree, but it's difficult to have an intelligent discussion unless you consider points raised in this analysis.

I'm sorry, but your suggestion simply isn't realistic, and it completely ignores the many uses for guns that save lives. Someone else posted a link to a news story about a 12-year-old girl in Oklahoma who shot and killed an intruder in her home, someone who was trying to break into the bathroom where she was, knowing she was in there. How would your suggestion have saved her life?

Assume for a moment that you got your wish and all guns magically disappeared from the US. When the next mass tragedy occurs (such as the Oklahoma City bombing, or a knife attack like in China), what will you blame next? Will you insist that people shouldn't be allowed to have gardens, because they might use the fertilizer to make a bomb? Or outlaw kitchen knives? How about making the sport of baseball illegal because some people misuse bats? At what point will you stop blaming the tool and start blaming the wielder of the tool?

The overwhelming majority of gun owners are responsible, law-abiding citizens, and (as the statistics I gave you show) that vast majority of firearms are never used to harm anyone. Guns have been proven to save lives, including during mass shootings (see http://www.volokh.com/2012/12/14/do-civilians-armed-with-guns-ever-capture-kill-or-otherwise-stop-mass-shooters/ for some examples). Simply banning guns won't stop evil people from harming others, and so you cannot definitively say that removing all guns would save more lives than allowing private ownership of guns would unless you actually compare the statistics. As such, you need to provide some sort of statistical argument to back up your claims.

Have you wondered why full-automatic guns are not illegal to possess? In 1934, Congress required them to be registered. In 1968, Congress prohibited them from being imported for civilian use. In 1986, Congress prohibited any new full-automatic firearms from being registered by civilians.

Why did they go through all that trouble, instead of just criminalizing possession? Because such a law would be unconstitutional. Any time the government takes the legally-owned property of someone, they have to provide full compensation for it (and they cannot use coercion to reduce the amount of that full compensation). The government cannot retroactively make something illegal. The combination of those two constitutional principles makes it virtually impossible to criminalize the possession of something previously legal. Even if the government only mandates that you make it non-functional, that is legally a taking, and they are required to compensate you for it.

In order to actually put your proposed gun confiscation scheme into action, you would need to repeal the Second Amendment (removing an individual right for the first time ever, and requiring supermajorities in both houses of Congress and ratification by 38 states), pass the law(s) criminalizing possession, budget money (a minimum of $300 billion at an average of $1000 per gun) to buy back the guns, and then find a way to enforce it when there are no clear records of who owns what guns. (For example, I have friends who own guns from before 1968 that don't even have a serial number. That means that there is no way to trace it at all.)

That simply isn't realistic, and you know it.

http://www.volokh.com/2012/12/13/now-theres-a-speech-restriction-for-you/

According to FIRE's president, they go after public universities that are obligated to guarantee first amendment protections to students. But they have different criteria for private universities, for instance that publicly say they support free speech but then have restrictive speech codes or selectively squelch some speech. Their position is, if it's public the school must give you freedom of speech; and if it's private, the school must clearly and consistently indicate what speech is allowed so that you can make an informed choice to pick universities.

Here is an explanation from FIRE's president

He recently guest-blogged on Volokh Conspiracy, which is popular blog by prestigious law professors. The series of articles posted by him is well worth a read. http://www.volokh.com/author/greglukianoff/

No, the court ruled correctly. The law has a very specific definition of stored communications, and as such only applies to backups and transient copies, not long-term hosted data. It's a stupid definition, but that's congress's fault not the judge's.

Could you point to the "stupid" part of the definition? I'm just not seeing what you're seeing.

(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for the purposes of backup protection of such communication.
[source]

Also if you notice, you'll see that the South Carolina judges couldn't even agree on one majority opinion of why they ruled that way, so their opinion is not going to be of much help to future courts.

This is why content delivery systems need to be licensed by governments. This wouldn't have happened if Twitter were prohibited because it's unlicensed.

It's a safety issue. Just like the license you need before you can drive your own car. Just like the license you need to be a barber. Or the permit that those kids should have gotten before the cops shut down their lemonade stand. Or the license that that guy in North Carolina needs to publish dietary advice on his blog. Or the law license that Elizabeth Warren doesn't need because she's one of the special people.

Leo Traynor should be ashamed for having an unlicensed conversation with his Troll. Is he a certified criminal counselor? He should have gotten the authorities involved, because they should always be involved. In everything.

Citizens United was about the government telling a political media corporation that they weren't allowed to air a movie about a politician within 30 days of an election. During the oral argument, the government said they could use the law to ban books if the book mentioned a politician.

It may be a "tired" argument to you that "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.", but that doesn't make it an incorrect argument. The First Amendment was written in "terms of speech, not speakers", to continue quoting the actual USSC decision.

You seem to have a common misunderstanding. The "press" refers to using technology for speech, it's not referring to an occupation or a specific industry. Everyone has freedom of speech and of the press. It's not something that refers to journalists by trade. That's a modern misunderstanding because of how language has changed to call journalists "the press". See this reprinted law review article.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
It seems pretty obvious that a law prohibiting people, no matter how they're organized, from showing a political movie within 30 days of an election _abridges_ their freedom.

It wasn't the EM radiation that they were tracking. The police got a court order for the cell phone carrier to send them data on the location of the cell phone.

The confusing thing is how they could have gotten a court order without a warrant. If they had enough for a court order, how didn't they have enough for a warrant justifying the data collection implicit in the court order? The bizarreness of the US legal system.

More discussion of this on a legal site: http://www.volokh.com/2012/08/14/sixth-circuit-rules-that-pinging-a-cell-phone-to-determine-its-location-is-not-a-fourth-amendment-search/?ModPagespeed=off

Note that to see the comments, you may have to whitelist volokh.com and disqus.com in your Javascript disabler.

the girl clearly violated a Court Order and also well-established law

Not as clear cut, actually. Here's Eugene Volokh's take:

An order barring a victim from revealing the names of her assailants is, I think, clearly unconstitutional, even when the assailants are juveniles. Oklahoma Publishing Co. v. District Court (1977) expressly rejected the notion that courts or legislatures may bar the publication of the names of juvenile offenders; that case involved a newspaper's publishing the name of the juvenile offender, which it learned from a court hearing, but the rationale applies at least as strongly to a person's publishing a name that she learned from the attack itself. Likewise, even when it comes to grand jury proceedings - probably the most historically secret part of the criminal justice system - Butterworth v. Smith (1990) held that, while a grand jury witness could be barred from revealing what he learned as part of the grand jury proceedings, the witness could not be generally barred from revealing information that he had learned on his own (even if that was the subject of his testimony).

the individual mandate is about preventing situations where people are unable to pay for emergency care. or unable to pay for it without defaulting on other debts or obligations.

This is untrue. http://www.volokh.com/2012/03/29/justice-kennedy-actuarial-risk-and-the-individual-mandates-unconstitutionality/

The requirement is not limited to catastrophic coverage that covers emergency care and expensive care.

Eugene Volokh, one of the authors of the Google white paper that the author discusses, has posted a response here.

This goes to something Orin Kerr calls the "Equilibrium Adjustment" theory of constitutional law. In short, if technological or other changes have altered the balance between government power and civil rights, the Supreme Court could find ways to adjust the balance.

http://volokh.com/2012/05/21/final-version-of-defending-equilibrium-adjustment/

Unfortunately, the bill is hardly "transparent" by most people's definition just because they can read the words in it. Being able to read something and being able to understand it easily are two different things. For example, I think it's likely most people and news reporters think that if a state fails to create an exchange, thereby enabling its residents to utilize the Federal exchange, that those residents utilizing the Federal exchange and with sufficiently low income will receive a tax credit for some portion of their premium - just as if they had participated in a (unavailable) state exchange. This, however, is not what the PPACA says.

The IRS is rumored to be ignoring this and preparing programs to provide tax credits for those who utilize the Federal exchange as if they had utilized an (unavailable) state exchange (although, they may have backed off on this by now that the have been called out on it last year -- I don't have a good way of checking). Although I don't expect the PPACA to survive the SCOTUS decision (at least the parts having to do with mandates, tax credits, minimum coverage, and eliminating rating/acceptance based on preexisting conditions), if it does, this tax credit issue will likely be the one of the next PPACA related court battles if the IRS continues to ignore the law.

For one read on this, see this post.

I assume this was an intentional feature of the law (perhaps intended to punish residents of states that didn't establish a state level exchange and motivate their residents to demand that one be established) that the IRS lawyers just didn't understand suggesting that it's not as "transparent" as it seems. If one claims it was an "error" that 435 representatives and staff, 100 senators and staff, and POTUS and staff missed, that would belie claims of careful vetting and careful consideration of the bill.

BTW, many of those who currently would identify as Tea Party supporters were outraged by G W Bush's "huge new medicare benefit". The Tea Party of course didn't exist yet -- it's hard to fault a group that hadn't yet formed for failing to oppose something before the group even existed!

Jonathan Adler agrees, and thinks Hansen's proposal is a viable market-based approach, and better than the cap-and-trade approaches that have been getting more press.

Stand your ground is a complete non-factor in this case, because the claim is that Trayvon tackled Zimmerman. The media hypes on it, because they don't like stand your ground laws. There aren't many well established facts in this case, and among those is whether Trayvon attacked the guy who had been following him or not.

Some of the guys are volokh conspiracy go into better legal detail:
http://volokh.com/2012/02/19/private-drones-and-private-property-rights/

In general, you own the immediate airspace above your land, up to as high as could reasonably interfere with any structures placed there. So a high flying drone would not be trespassing, but a low-flying one (ie, one low enough to hit with birdshot) would be.

Birdshot fired toward a road in this case is no danger at all to anyone - it just doesn't have that range.

The complaint claims that the drone was over public land. We should remember, however, that this is at this point just the claim of the animal rights group, and may or may not be held true in court. If it is, this would of course invalidate the arguments about trespass, and would go into privacy law only. Some states do have strong laws regarding photographing events without permission.

So if it was over private property, and flying low enough to get shot at, it would be guilty of trespass.

However... since remote controlled drones are kind of a new thing, I'm not sure what exact precedent would apply regarding proper steps to be taken by property owners against those drones. I do know that in many states you are allowed to shoot trespassing dogs, cattle, and other animals (although it is normally not encouraged unless they are damaging something). Most states, even those with castle doctrines, do not allow you to shoot trespassing people unless they begin to enter your house, or if you have other reasons to claim self defense.

IANAL, but I do read a lot of law blogs.

Somebody once said the Constitution is whatever (a majority of) the Supreme Court says it is. So, by that standard, yes, you're right.

On the other hand, I was speaking normatively.

I.e., "I believe the 1st amendment amended the copyright clause, and we should promote this belief."

Supreme Court justices don't exist in a vacuum. They are influenced by the world around them, including the New York Times and New York Times Magazine. Once something spreads in a culture, it'll affect the Supreme Court too.

So, if you're for strong 1st amendment protections, spread this meme. (Also, the copyright laws allow for book-burning.)

Given the broad overreach [pdf] of the Computer Fraud and Abuse Act to count violations of Terms of Service agreements as "unauthorized access" (i.e. "hacking"), it be a criminal offense for UMG to violate Google's rules on how its piracy filters are to be used?

http://volokh.com/2011/11/14/my-congressional-testimony-on-the-need-to-narrow-the-computer-fraud-and-abuse-act/

http://cdn.volokh.com/wp/wp-content/uploads/2011/11/Testimony-of-Orin-S-Kerr.pdf

" The current version of the Computer Fraud and Abuse Act (CFAA) poses a threat to the civil liberties of the millions of Americans who use computers and the Internet. As interpreted by the Justice Department, many if not most computer users violate the CFAA on a regular basis. Any of them could face arrest and criminal prosecution.

        In the Justice Department’s view, the CFAA criminalizes conduct as innocuous as using a fake name on Facebook or lying about your weight in an online dating profile. That situation is intolerable. Routine computer use should not be a crime. Any cybersecurity legislation that this Congress passes should reject the extraordinarily broad interpretations endorsed by the United States Department of Justice.

        In my testimony, I want to explain why the CFAA presents a significant threat to civil liberties. I want to then offer two narrow and simple ways to amend the CFAA to respond to these problems. I will conclude by responding to arguments I anticipate the Justice Department officials might make in defense of the current statute."

http://volokh.com/2011/11/14/my-congressional-testimony-on-the-need-to-narrow-the-computer-fraud-and-abuse-act/

http://cdn.volokh.com/wp/wp-content/uploads/2011/11/Testimony-of-Orin-S-Kerr.pdf

" The current version of the Computer Fraud and Abuse Act (CFAA) poses a threat to the civil liberties of the millions of Americans who use computers and the Internet. As interpreted by the Justice Department, many if not most computer users violate the CFAA on a regular basis. Any of them could face arrest and criminal prosecution.

        In the Justice Department’s view, the CFAA criminalizes conduct as innocuous as using a fake name on Facebook or lying about your weight in an online dating profile. That situation is intolerable. Routine computer use should not be a crime. Any cybersecurity legislation that this Congress passes should reject the extraordinarily broad interpretations endorsed by the United States Department of Justice.

        In my testimony, I want to explain why the CFAA presents a significant threat to civil liberties. I want to then offer two narrow and simple ways to amend the CFAA to respond to these problems. I will conclude by responding to arguments I anticipate the Justice Department officials might make in defense of the current statute."

But that would make sense. And everyone knows that sense and logic are antithetical to courtrooms.

This is the same justice system where psychotic evanglical christian-types convince judges not to allow D&D books or other roleplaying books because it uses dice ("OMG GAMBLING"), because it's "Satanic", and because it "encourages gang behavior." To wit: "The Dungeon Master is tasked with giving directions to other players, which Muraski testified mimics the organization of a gang." - despite the fact that this is NOTHING LIKE D&D, the testimony of Dumbass Muraski was accepted as "expert testimony" in court.

And the same justice system where our dumbass, inept, clueless judges actually BUY those lines of argument.

Patent thickets are common occurrences. Here's a nice post from a law-professor's blog on how industry has historically resolved them: http://volokh.com/posts/1241493210.shtml. No reason to think this is any different.

The link in glorious HTML

Patent thickets are common occurrences. Here's a nice post from a law-professor's blog on how industry has historically resolved them: http://volokh.com/posts/1241493210.shtml. No reason to think this is any different.

The link in glorious HTML

Interestingly, there is precedent that establishes fifth amendment protection against being required to provide an encryption key. The argument was that if using the key turns up anything incriminating, then the defendant would have been required to self-incriminate by providing the key.

The discussion I link below indicates that compelling you to turn over the password forces you to admit that you know the password, which is testimonial:

http://volokh.com/posts/1235508933.shtml

So like anything else with the police, a reasonable course of action seems to be to say nothing.

a recent ruling threw out evidence collected from a person computer because the cop moved the mouse which in turn disabled a screen saver which in turn revealed incriminatory evidence. So if your phone is not displaying anything it may not be able to be searched.

In other words, a pass code with a neutral background may be sufficient to protect you should it reach court and something on the phone was incriminating.

http://volokh.com/2011/09/27/taking-a-computer-out-of-screensaver-mode-to-see-suspects-facebook-wall-as-a-fourth-amendment-search/

Also this site, http://www.fourthamendment.com/blog/ is not a bad resource when you want to see what happens with search and seizure cases.

They might be nuanced considerations, but the considerations lead to some really, really stupid consequences. The VC blog has some more level-headed analysis of their proposal.

The end result is still that the proposed limitations on free speech will lead to some serious abuses. Not to mention that I find it strangely disturbing that a human being of 20 years, 11 months and 360 days is described as a child.

It's not complete crazy talk, and, unlike some others, find it an idea that should be discussed in the open. And then the idea should be shot into itty, bitty little philosophical pieces.

There's no story here. Here's the original report, from the Volokh Conspiracy, a card-carrying rightwing blog. That enough should discredit the story. Second, the entire point of this blog posting is to point out that the politicians involved were all Democrats, something the Techdirt article (correctly) discards from the narrative as irrelevant. So, this is just a hit piece, no story other than "scary Demoncrats", everybody can go on to the next article.

Both are common.

But these guys are:
http://volokh.com/2011/08/04/is-it-criminal-to-publish-parody-videos-that-use-lewd-language-meant-to-embarrass-and-emotionally-torment-police-officers/

Yes, the Renton (Wash.) city prosecutor’s office concludes, applying the Washington “cyberstalking” statute — an excellent example of the dangers of the broad “cyberbullying” and “harassment” statutes that I have often condemned. KIRO-TV reports:

The Renton City Prosecutor wants to send a cartoonist to jail for mocking the police department in a series of animated Internet videos.

The “South-Park”-style animations parody everything from officers having sex on duty to certain personnel getting promoted without necessary qualifications.... [Last week, the prosecutor filed] a search warrant accusing an anonymous cartoon creator, going by the name of Mr. Fiddlesticks, of cyberstalking (RCW 9.61.260). The Renton Police Department and the local prosecutor got a judge to sign off as a way to uncover the name of whoever is behind the parodies.... ...

Under the prosecutor’s view, any statement — including on a blog, in a YouTube video, in a newspaper article, on television, or whatever else — is a crime if it is made “with intent to harass, ... torment, or embarrass” the subject of the person “[u]sing any lewd, lascivious, indecent, or obscene words, images, or language.” A comedian’s joke that “lewd[ly]” or “lascivious[ly]” described President Clinton’s behavior with Monica Lewinsky, or for that matter Congressman Weiner’s behavior, would be a crime if it was made “with intent to ... embarrass” the President or the Congressman. The Hustler parody attacking Jerry Falwell, which the Supreme Court held to be protected against civil liability under the “intentional infliction of emotional distress tort,” would be a crime. Indeed, in this very case, the theory is that the videos are criminal because they described alleged police sexual misconduct using “lewd” or “indecent” words with the intent to torment or embarrass particular officers. (The theory expressed in the document — a search warrant application — is that the videos sufficiently identify the particular police officers who were involved in the incidents to which the video alludes.)

If the prosecutor is right that the statute should be interpreted this broadly, then it’s clearly unconstitutionally overbroad. Speech to the public doesn’t lose its constitutional protection because it’s intended to torment or embarrass. (It may lose such protection when it’s intended to be perceived as a true threat of criminal attack, but that’s not the issue here.) Nor does lose its constitutional protection because it uses “lewd” or “indecent” terms. And while one-to-one speech said to an unwilling listener may in some circumstances be restricted — which is the reason traditional telephone harassment laws, if properly crafted, may be constitutional — this rationale can’t be used to suppress speech said to the public, even if the people discussed in the speech are tormented or embarrassed by it.

Moreover, the statute would be clearly unconstitutional as applied to this video, and the prosecutor and the judge ought to know this. (The prosecutor is Renton Chief Prosecutor Shawn Arthur; the judge on an earlier warrant was James Cayce, but I don’t know what the affidavit said there, and I don’t know the name of the judge who apparently issued the warrant based on the affidavit included with the KIRO story.) A search warrant can onl

The FBI has been doing this for decades. That notorious threat to public safety, Lucille Ball, had an extensive FBI file.

Maybe they had a reason for looking?

America may have loved Lucy but she made the FBI suspicious when she registered with the Communist Party in 1936 at the insistence of her grandfather. Although the House Committee on Un-American Activities began their investigation in 1953, no evidence was ever shown that she had supported the Communist Party and her registration appeared to be only for the sake of pleasing her grandfather. --- Lucille Ball

-----

Things I didn't know about American Communism: -- David Bernstein

I'm reviewing Martin Redish's book, The Logic of Persecution, for the Northwestern Law Review. The book is an interesting look at the so-called "McCarthy era" (which both pre and post-dated McCarthy) from a First Amendment perspective. I'll post a link to the review soon.......

Here are some of the facts I learned from doing research for my review, some of which are just "fun facts," and others of which affected my view of the era in question (if you want footnotes, you will have to wait until I circulate the paper):

(1) The first chairman of the House committee that was the predecessor to HUAC, Samuel Dickstein, was probably a Soviet agent.

(2) Hollywood scriptwriters who were members of the Communist Party (CPUSA) were expected to use their positions to promote Communist doctrine and the Party's agenda, or, if that was not possible, at least to work to exclude anti-Soviet sentiment. (And I already knew, but you might not have, that each of the Hollywood Ten was a member of the CPUSA.)

(3) The first federal prosecution under the Smith Act (later used to prosecute CPUSA leaders) was the prosecution of eighteen leaders of the Trotskyist Socialist Workers Party 1941. The CPUSA not only applauded this action; Party leaders assisted in the prosecution.

(4) The Smith Act prosecutions of CPUSA leaders were largely a result of the fact that top government officials had recently learned from decoded "Venona cables" between the Soviet Union and its agents and affiliates abroad that the Soviet Union used American Communists to engage in wide scale espionage against the United States. The CPUSA leaders were not prosecuted for espionage and related charges (conspiracy) because that would have involved revealing that the U.S. had deciphered the Soviets' code, and also much of the additional evidence the government had was obtained in violation of the Fourth Amendment. Instead, the government resurrected the Smith Act, and proceeded with prosecutions of highly dubious constitutionality (though upheld by the Supreme Court, which implicitly recognized that these prosecutions were "special").

(5) Not only did the CPUSA recruit spies for the Soviet Union through its "secret apparatus," it was prepared to engage in violence on behalf of the Soviet Union.

(6) The Smith Act prosecutions and other government and private anti-Communist activity destroyed the usefulness of the CPUSA to the Soviet Union for espionage.

(7) Many of the questionable tactics used by the government against domestic Communists in the late 1940s and 1950s, including Smith Act prosecutions, were previously used by the government against domestic Nazis and fascists in the late 1930s and early 1940s by the Roosevelt Administration.

(8) Alger Hiss was not prosecuted for spying because the statute of limitations had expired.

(9) During the "Red Decade" of the 1930s, Hollywood Communists ran their own blacklist againist their polit

So how do I parse these "liberal guys" from CATO, published in Forbes, saying that oil and gas firms get special tax breaks?

"Another significant tax break allows companies to accelerate the deductions of the costs of labor and various other inputs associated with drilling oil or gas wells. Now, there's nothing wrong with deducting the cost of doing business from one's tax bill. In other industries these expenses would be capitalized and deducted over time as income is earned. But in the oil and gas sector, the tax code allows oil and gas firms to deduct 70% of these expenses in the very first year of a well's operation and the remainder over the next five years."

Or this guy over at The Volokh Conspiracy claiming that:

"The best example is the percentage depletion allowance which, as applied in some cases, enables oil companies greater depreciation than the value of the initial investment."

Because, I wouldn't want to look dumb and uneducated, thereby hurting my claim.

http://volokh.com/2011/03/11/60000-damages-for/

"...If the news story is accurate, and isn’t omitting some key facts, the result seems unconstitutional and quite wrong. Even if Hoff was trying to get Moore fired, people are constitutionally entitled to speak the truth about others, even with such a goal. (The tort actually requires either knowledge that such a result is practically certain or a purpose of producing such a result, but I take it that here the allegation is that Hoff wanted Moore to get fired.) The First Amendment constrains the interference with business relations tort, just as it constrains the infliction of emotional distress and other torts...."

TFS:

Worse, thanks to a recent California Supreme Court ruling, police officers may be able to search your smartphone for hours without a warrant if you're arrested for any reason.

First, not all Americans live in California. Other States can (and have) interpreted their 4A equivalents to provide more or less protection than the Federal one.

More to the point, it's probably not true that they can search your cellphone if you are arrested for any reason. Rather, the US Supreme Court explained recently in Gant[1], the idea is that the police can search for things "reasonably believed to contain evidence of the offense of arrest". So searching the cell phone of the CA drug dealer might come out differently than searching the cell phone of (say) a parole violator or a drunk driver.

To be fair, Gant was an automobile search and the court might distinguish a cellphone from a car in some important sense. Nevertheless, the blanket statement in the summary is not likely to hold up if the police do not have some nexus between the arresting crime and the cellphone.

And of course, Gant might be wrong as a matter of policy, although Orin Kerr has a very good writeup[2] of the extensive history of search incident to arrest in Anglo-Saxon law that's worth reading for some historical context.

[1] http://www.law.cornell.edu/supct/html/07-542.ZO.html
[2] http://volokh.com/2010/12/14/the-origins-of-the-search-incident-to-arrest-exception/

I was curious about this...particularly what it means to "reverse the polarity of a swimming pool"... um, I didn't know they had poles :) (clearly something to do with the wiring...)

Anyway: http://volokh.com/2011/01/04/interesting-example-of-the-use-of-computer-search-evidence

Apparently its an interesting case. I haven't read much yet, about to dive in, but, it does quickly raise the question of... who did the searching? Looks like the defense claim is suicide. I know that if I planed to kill myself by a posion, I would want to know quite a bit about how it worked and what to expect.

Though, I am not sure thats the one I would choose.... nicotine maybe.... or nitrous oxide... glycol tastes sweet if I remember, its why dogs sometimes die from drinking antifreeze, so seems like a good choice to slip in food or drink... so... hard to say. Have to read...

-Steve

Here's an interesting article that discusses exactly the issue you're raising:

White House Concedes Individual Mandate is not Severable

The long and short of it -- President Obama's people see the portions of the bill as linked inextricably.

Perhaps you should be more informed before you spout off.

Just so you know, this was originally published here, and very recently re-published here without proper attribution.

Why the cheap shot against the "left"? You could say I'm a "leftie" (especially by US standards), and I'm pissed off by this.

Because there has been an internal division among the left (of which I consider myself a proud member) about the limits of free speech. Some openly deride the value of free speech in favor of hate speech laws, campus/employer speech codes[3][5], laws prohibiting "defaming or insulting religion"[6]. Outside the US, there appears to be no limit to prosecutions for even trivial insults against Christianity[1] or Islam[2]. In a most bizarre ruling from Canada, apparently you can be sued for libel for calling someone an 'enemy of free speech' in response the plaintiff's initiation of various cases before the CHRC that were, in fact, attacks on speech[4].

Slashdot has a particular brand of leftism that is largely against these attacks on free speech but it would be silly to think that this represents a worldwide view. There are significant attacks on free speech from the left (and, as always, from the right as well on different issues) and it would behoove us to pay attention and confront our fellow lefties that are clamoring for European-style (or even Canadian-style) regulations of 'hate speech' and the like.

[1] http://www.independent.co.uk/news/uk/crime/atheist-given-asbo-for-leaflets-mocking-jesus-1952985.html
[2] http://en.wikipedia.org/wiki/Trial_of_Geert_Wilders
[3] http://volokh.com/tag/rodriguez-v-maricopa/
[4] http://www.nelligan.ca/e/PDF/Warman_Court_Decision.pdf
[5] http://www.tuftsdaily.com/2.5511/csl-hearing-turns-spotlight-on-controversial-source-pieces-1.590986
[6] http://theamericanmuslim.org/tam.php/features/articles/combating_defamation_of_religions/

I agree with this article, that while she may be a liberal candidate, she seems to be very willing to seriously consider alternative viewpoints.

You have to expect a liberal candidate is going to nominate someone with a liberal bent, so to nominate someone who can truly work with diverse viewpoints on an issue is, I think, a pretty thoughtful and intelligent nomination.

As to those wanting this story off Slashdot - just who do you think is going to be involved in the end-game of various copyright and FCC regulation? The largest issues will all end up in the supreme court. Like it or not, the future of what is possible with technology is intertwined with the laws that define what CAN be realistically presented to the market. In an ideal world, wouldn't you love to have her views on copyright extension, and the constitutionality of the ACTA treaty brought up?

You can chose to ignore politics and focus only on technology - but politics is in no way going to ignore YOU.