I read the case. At the border, on request of the Immigration and Customs Enforcement people, the guy decrypted his (he admitted possession) laptop's Z drive and let the border agent have a look. The border agent saw probable cause to believe that the guy had illegal images stored on his computer.
Now the guy is claiming that he can't be made to provide (once again) an unencrypted copy of the Z drive because the act of producing the unencrypted Z drive would tend to incriminate him.
The "act of production" is the key thing. The Fifth Amendment affords zero privacy protection for hard drives (look to the Fourth Amendment for that). If the act of production would tend to incriminate you, then the Fifth Amendment may be asserted.
The government won with the "cat is already out of the bag" attack. A higher court had already accepted that defense in a similar (non-computer) case. The District Court followed the reasoning in that case.
This is a grand jury proceeding--not a criminal case. The government has submitted that it will not use the defendant's act of production against him when they prosecute him.
I expect that this case will be finally resolved in the Court of Appeals.
He hung himself when he decrypted the disk and showed the computer to the border agent.
A tape is good (if legally obtained), but your testimony is enough to fuel a lawsuit. This lawsuit (or, more importantly, the threat of a lawsuit) would be an expensive pain for the company.
The benefits of keeping you around a couple of extra weeks would not outweigh the anxiety caused by the threat of a lawsuit.
From your post, it appears that you have received the following message: "Work for me or I'll say something that will embarass you professionally."
This meets the elements of extortion; not that it would ever be charged.
It is also the foundation of a tort--an intentional tort. Intentional torts, in many States, get punitive damages.
Here is where it gets funny. A threat has been communicated to you. This means that you could file a lawsuit. This means that they have to answer it. If they try for summary judgment, they will lose because you will say the threat was made and they will deny it. This means that there will be a trial. This means that the other side will have to hire lawyers and get witnesses and experience some anxiety over the fact that the jury just might believe you. This means that they will probably want to settle (although maybe not for much).
So, you have a potential piece of canned whoop-ass in your backpack. Your negotiating position with your employer is not inconsiderable. If the threat made to you was in writing, then you have a can of extra-strength woop-ass. This whoop-ass has a limited shelf-life (the statute of limitations), so you can't rely on its potential forever.
You ought to consider taking the threatening lawyer letter one step further. Offer to settle your extortion claim in exchange for a small severance package and an expressly defined (by settlement contract) absolutely INCANDESCENT letter of recommendation.
Make targeted requests. Get targeted results. Make shotgun requests. Get shotgun results.
You are ill-informed. The federal government has attorney fee provisions available for prevaling FOIA parties. These awards are made in the discretion of the trial court.
You are bashing something that you do not sufficiently understand.
The comment that "your FOIA requests will largely be ignored" is utter bullshit if it is applied to the States that have attorney fee provisions. In Washington State, for example, if a document is withheld, however innocently, the requestor is entitled to a daily penalty and to attorney fees. This can amount to over one hundred thousand dollars at the attorney's billing rate if the case is highly contested. You can bet these States take public disclosure requests very seriously.
Parent's comment also ignores the attorney fee provisions that apply in the federal FOIA statute. This dovetails nicely with the rant about "bulking" of FOIA requests. If bulking happens, often it is because the government is erring on the side of caution and/or because the requestor made a too-broad request. Furthermore, documents don't need to be copied--they can made available for inspection and the requestor can then determine what copies are needed. You can work with the FOIA officer and tailor your request if the requestor estimates a bulky response. Date limits and other boolean concepts can be used to narrow the search.
Parent's FOIA rant is unsupported and simply wrong. It could have the effect of discouraging people from using the FOIA process. It works for many, many people--not just journalists. The biased tone of Parent (although totally consonant with the Slashdot mod vibe)needed a counterpoint. FOIA is a good and useful tool. It works and people should use it.
The Gov't can probably require wi-fi people to keep logs when they use the people's radio frequencies. It seems like fair regulation of a public resource. I'd like to see some discussion about that, though. Dont' flame me for that, though; it's just an aside.
The real problem with with making the process workable is the 5th Amendment (the privilege against self-incrimination). A person can refuse to turn over any physical object if the act of turning that object over would tend to incriminate that person. A way to get around this would be a 'periodic log disclosure' that, simply speaking, would be the price of using the wi-fi network.
The problem with that is that there is no way Congressmen/Congresswomen would want their wireless logs and their lobbyist's wireless logs out in the public domain. You can be certain of that. Trust congressional self-interest to keep a bill such as this from ever seeing the light of day.
This indicates a publicity stunt to me. The Congressmen proposing this are just seeking publicity. They know this will never get passed. They really don't want it, either. This is just a political game that one party plays to try to say that the other party is 'soft on crime.'
An incompetent person cannot contract. The incompetent person must be able to prove their incompetence, though (usually with the help of a guardian and a lawyer). Incompetence is a defense--a person trying to prove a contract is not required to prove that the other party contracting was incompetent. The reason for this is probably practical--putting the burden of proving competence/incompentence is best placed on the party with the best access to the proof.
Am I getting you right? You're saying that if you click "I agree" when you really (in your own mind) "don't agree to it in the first place", then you don't have a contract? That's like crossing your fingers behind your back--an incompetent person can get away with that, but not a competent one.
The End User Licensing Agreement is typically an executory contract.
You accept the contract/license when you load the software onto your computer. This is always at the top of the contract. If you understand that much, then you have assented to the rest of the contract.
A person can't successfully argue that they should get out of their mortgage because they didn't really understand the mortgage paperwork. They signed it (they assented), and they're stuck with it.
The same thing applies to the executory contract. If you load the software, you're signifying your acceptance of the contract's terms. You won't later be able to claim that you did not understand those terms.
Think about it for a moment. I make a contract with you, then I have to prove that you understood it? How silly is that?
Encouraging somebody to commit murder--who then acts on the encouragement--is being an accomplice to committing murder. The encourager is just as liable as the killer for murder.
Conspiracy to commit murder is talking (combined with at least one step toward the murder) with one or more people with the purpose of committing murder. No actual killing is required. Conspiracy is often punished more lightly than the actual offense.
That's basic Anglo-Saxon common law.
Take the rest of parent's post with a big grain of salt.
I was using "strong" in a relative sense: In the sense that the prosecutor has a strong enough presentation to overcome the defense's presentation as it stands right now. Right now the actual quality of each side's case is a mystery.
The presumption of innocence is a rule that applies to criminal trials. All it means (ALL it means) is that the jury cannot convict you unless they find beyond a reasonable doubt that you committed the charged crime. Juries take this very seriously. "Every lawyer" knows that. Juries can be stupid, sometimes, but they very often are stupid on behalf of the defendant. In other words, if they're not sure then they cut the defendant a break. "Every lawyer" who actually does trials knows that, too.
In the U.S., less than five percent of cases go to trial. That means that less than five percent of people ever test the presumption of innocence. Why? Maybe because they're guilty . . .
Bail is a different issue. Judges have to assess danger to the community. Sometimes, people who can't make bail rot there before trial. Those people have a remedy, though. They can insist on a speedy trial. Most states have speedy trial rules just for that purpose.
Mr. Childs probably isn't pushing for a speedy trial because the State probably has a strong case against him and he wants to build an effective defense. Defense takes time and preparation. So, I guess that Mr. Childs is sitting in jail (1) because the judge thinks he's a danger to the community; (2) he can't make bail; and (3) he needs the time to prepare his complicated defense.
The presumption of innocence is not a fairy tale in the U.S. It is a plain reality.
Gunpowder and fire are not likely to wipe out the human race.
Nuclear weapons can wipe out the human race, but only if unleashed in massive quantities or in quantities sufficient to cause devastating climate change like nuclear winter. Someday, some whackjob is going to detonate a nuclear device, but the whackjob won't wipe out the whole human race in the process. Biological weapons can do just that.
Many people can't keep their hands off weapons. They love them. And what gets made eventually gets used.
First, the human race has to get past the fools who will genetically engineer something devastating just because they can. Second, the human race has to get past the madmen bent on self-destruction accompanied with the destruction of the human race. Third, the human race has to get past those people who will immunize their group from a devastating virus/bacteria that they unleash on the rest of the human race.
Can we get past all this? Can we get past all this without serious invasion of our personal liberty?
The administration of juvenile courts, including probation and detention facilities, is commonly run by juvenile court judges. This is different from the way most everything else is run in the USA. In most other scenarios, the legislature decides what the show is, the executive runs the show, and the judges resolve differences of opinion.
In the juvenile courts, judges get a budget and very little oversight. They're not just judging--they are contracting (sometimes on a big scale). This presents a fertile ground for corruption.
From what I've read, it looks like this corrupt judge was outrageous for years and that still a snitch was necessary to secure his prosecution. This doesn't bode well for catching other bad judges.
Why not separate judges from the contracting process?
Anything that you post on Facebook is like a letter you send to Facebook--unless Facebook promises to accord it more protection. The ONLY value Facebook has is the value that it can sell from mining the data that you send it. People who don't like it can leave.
I think that I can give you reasons for bothering.
First of all, the battle is better described as a a battle between creationism and empiricism.
Many fundamentalists are driven to suppress ideas that conflict with their religious belief-set. Evolutionary biology, along with geology and astronomy, have been challenged because they conflict with a religious belief-set. Fundamentalists are threatened by the thought process that spawns those conflicts--the scientific method. A lasting victory over heresy depends upon the suppression of the scientific method. Otherwise, all sorts of pesky ideas will keep sprouting up. The fundamentalists want to rip out the roots of heresy--and empiricism (including freedom of scientific thought)--is the root of scientific heresy.
NO ONE EXPECTS THE SPANISH INQUISITION!
If you care about the future of science after your lifetime, the battle against empiricism and free-ranging scientific freedom, then you must care about the battle the creationists are waging. Forget the rigid ignorant people with whom discussion or argument is entirely futile. But be concerned about the children--future scientists and supporters of scientists that need to be educated.
If you only care about the development of science within your lifetime, then the battle against the creationists is still worthwhile. Creationism is awful because it is an all out attack on empiricism, and empiricism is the foundation of all science. The suppression of empiricism and free scientific thought can happen in your lifetime.
If this DNA collection is legal, then it must pass muster under both STATE and FEDERAL constitutions. It may be OK under the federal constitution (where the US Supreme Court is the last word), but it will NEVER pass muster under the Washington Constitution (where the State Supreme Court has the last word). The Washington Supreme court has a strong libertarian component (I'm not exaggerating). Compelled collection from convicted felons is OK per the Wash. Supreme Court (State v. Surge, 160 Wn.2d 65), but they're not going to approve compelled collection from pretrial detainees. No way.
It's going to take a state constitutional amendment or a recomposition of the Washington Supreme Court before DNA samples can be taken from pretrial detainees.
Slashdot Mirror
I read the case. At the border, on request of the Immigration and Customs Enforcement people, the guy decrypted his (he admitted possession) laptop's Z drive and let the border agent have a look. The border agent saw probable cause to believe that the guy had illegal images stored on his computer.
Now the guy is claiming that he can't be made to provide (once again) an unencrypted copy of the Z drive because the act of producing the unencrypted Z drive would tend to incriminate him.
The "act of production" is the key thing. The Fifth Amendment affords zero privacy protection for hard drives (look to the Fourth Amendment for that). If the act of production would tend to incriminate you, then the Fifth Amendment may be asserted.
The government won with the "cat is already out of the bag" attack. A higher court had already accepted that defense in a similar (non-computer) case. The District Court followed the reasoning in that case.
This is a grand jury proceeding--not a criminal case. The government has submitted that it will not use the defendant's act of production against him when they prosecute him.
I expect that this case will be finally resolved in the Court of Appeals.
He hung himself when he decrypted the disk and showed the computer to the border agent.
Oh, the fickle tastes of consumers. . . and the frenzied manufacturers who chase them.
I appreciate the ironic fantasy of your post.
A tape is good (if legally obtained), but your testimony is enough to fuel a lawsuit. This lawsuit (or, more importantly, the threat of a lawsuit) would be an expensive pain for the company.
The benefits of keeping you around a couple of extra weeks would not outweigh the anxiety caused by the threat of a lawsuit.
From your post, it appears that you have received the following message: "Work for me or I'll say something that will embarass you professionally."
This meets the elements of extortion; not that it would ever be charged.
It is also the foundation of a tort--an intentional tort. Intentional torts, in many States, get punitive damages.
Here is where it gets funny. A threat has been communicated to you. This means that you could file a lawsuit. This means that they have to answer it. If they try for summary judgment, they will lose because you will say the threat was made and they will deny it. This means that there will be a trial. This means that the other side will have to hire lawyers and get witnesses and experience some anxiety over the fact that the jury just might believe you. This means that they will probably want to settle (although maybe not for much).
So, you have a potential piece of canned whoop-ass in your backpack. Your negotiating position with your employer is not inconsiderable. If the threat made to you was in writing, then you have a can of extra-strength woop-ass. This whoop-ass has a limited shelf-life (the statute of limitations), so you can't rely on its potential forever.
You ought to consider taking the threatening lawyer letter one step further. Offer to settle your extortion claim in exchange for a small severance package and an expressly defined (by settlement contract) absolutely INCANDESCENT letter of recommendation.
Make targeted requests. Get targeted results.
Make shotgun requests. Get shotgun results.
You are ill-informed. The federal government has attorney fee provisions available for prevaling FOIA parties. These awards are made in the discretion of the trial court.
You are bashing something that you do not sufficiently understand.
The comment that "your FOIA requests will largely be ignored" is utter bullshit if it is applied to the States that have attorney fee provisions. In Washington State, for example, if a document is withheld, however innocently, the requestor is entitled to a daily penalty and to attorney fees. This can amount to over one hundred thousand dollars at the attorney's billing rate if the case is highly contested. You can bet these States take public disclosure requests very seriously.
Parent's comment also ignores the attorney fee provisions that apply in the federal FOIA statute. This dovetails nicely with the rant about "bulking" of FOIA requests. If bulking happens, often it is because the government is erring on the side of caution and/or because the requestor made a too-broad request. Furthermore, documents don't need to be copied--they can made available for inspection and the requestor can then determine what copies are needed. You can work with the FOIA officer and tailor your request if the requestor estimates a bulky response. Date limits and other boolean concepts can be used to narrow the search.
Parent's FOIA rant is unsupported and simply wrong. It could have the effect of discouraging people from using the FOIA process. It works for many, many people--not just journalists. The biased tone of Parent (although totally consonant with the Slashdot mod vibe)needed a counterpoint. FOIA is a good and useful tool. It works and people should use it.
Congress would rather not pass such a bill than do something so naked.
The Gov't can probably require wi-fi people to keep logs when they use the people's radio frequencies. It seems like fair regulation of a public resource. I'd like to see some discussion about that, though. Dont' flame me for that, though; it's just an aside.
The real problem with with making the process workable is the 5th Amendment (the privilege against self-incrimination). A person can refuse to turn over any physical object if the act of turning that object over would tend to incriminate that person. A way to get around this would be a 'periodic log disclosure' that, simply speaking, would be the price of using the wi-fi network.
The problem with that is that there is no way Congressmen/Congresswomen would want their wireless logs and their lobbyist's wireless logs out in the public domain. You can be certain of that. Trust congressional self-interest to keep a bill such as this from ever seeing the light of day.
This indicates a publicity stunt to me. The Congressmen proposing this are just seeking publicity. They know this will never get passed. They really don't want it, either. This is just a political game that one party plays to try to say that the other party is 'soft on crime.'
So the restaurants would be buying protection from negative reviews? Interesting . . .
Paying protection money . . .
Wow.
You persuasively argue that good evidence is available to Childs. We'll see what actually gets introduced into evidence at trial.
It's unlikely that the taxpayers will have to pay for his trial and prosecution. Lots of immunities there (prosecutorial and judicial).
I can't see why his bail hasn't been reduced by now, though. I can't see the danger he presents.
An incompetent person cannot contract. The incompetent person must be able to prove their incompetence, though (usually with the help of a guardian and a lawyer). Incompetence is a defense--a person trying to prove a contract is not required to prove that the other party contracting was incompetent. The reason for this is probably practical--putting the burden of proving competence/incompentence is best placed on the party with the best access to the proof.
Am I getting you right? You're saying that if you click "I agree" when you really (in your own mind) "don't agree to it in the first place", then you don't have a contract? That's like crossing your fingers behind your back--an incompetent person can get away with that, but not a competent one.
Thanks for correcting me about the EULA.
The End User Licensing Agreement is typically an executory contract.
You accept the contract/license when you load the software onto your computer. This is always at the top of the contract. If you understand that much, then you have assented to the rest of the contract.
A person can't successfully argue that they should get out of their mortgage because they didn't really understand the mortgage paperwork. They signed it (they assented), and they're stuck with it.
The same thing applies to the executory contract. If you load the software, you're signifying your acceptance of the contract's terms. You won't later be able to claim that you did not understand those terms.
Think about it for a moment. I make a contract with you, then I have to prove that you understood it? How silly is that?
No. No. No. No. No.
Encouraging somebody to commit murder--who then acts on the encouragement--is being an accomplice to committing murder. The encourager is just as liable as the killer for murder.
Conspiracy to commit murder is talking (combined with at least one step toward the murder) with one or more people with the purpose of committing murder. No actual killing is required. Conspiracy is often punished more lightly than the actual offense.
That's basic Anglo-Saxon common law.
Take the rest of parent's post with a big grain of salt.
I was using "strong" in a relative sense: In the sense that the prosecutor has a strong enough presentation to overcome the defense's presentation as it stands right now. Right now the actual quality of each side's case is a mystery.
The presumption of innocence really works.
The presumption of innocence is a rule that applies to criminal trials. All it means (ALL it means) is that the jury cannot convict you unless they find beyond a reasonable doubt that you committed the charged crime. Juries take this very seriously. "Every lawyer" knows that. Juries can be stupid, sometimes, but they very often are stupid on behalf of the defendant. In other words, if they're not sure then they cut the defendant a break. "Every lawyer" who actually does trials knows that, too.
In the U.S., less than five percent of cases go to trial. That means that less than five percent of people ever test the presumption of innocence. Why? Maybe because they're guilty . . .
Bail is a different issue. Judges have to assess danger to the community. Sometimes, people who can't make bail rot there before trial. Those people have a remedy, though. They can insist on a speedy trial. Most states have speedy trial rules just for that purpose.
Mr. Childs probably isn't pushing for a speedy trial because the State probably has a strong case against him and he wants to build an effective defense. Defense takes time and preparation. So, I guess that Mr. Childs is sitting in jail (1) because the judge thinks he's a danger to the community; (2) he can't make bail; and (3) he needs the time to prepare his complicated defense.
The presumption of innocence is not a fairy tale in the U.S. It is a plain reality.
Gunpowder and fire are not likely to wipe out the human race.
Nuclear weapons can wipe out the human race, but only if unleashed in massive quantities or in quantities sufficient to cause devastating climate change like nuclear winter. Someday, some whackjob is going to detonate a nuclear device, but the whackjob won't wipe out the whole human race in the process. Biological weapons can do just that.
Many people can't keep their hands off weapons. They love them. And what gets made eventually gets used.
First, the human race has to get past the fools who will genetically engineer something devastating just because they can.
Second, the human race has to get past the madmen bent on self-destruction accompanied with the destruction of the human race.
Third, the human race has to get past those people who will immunize their group from a devastating virus/bacteria that they unleash on the rest of the human race.
Can we get past all this?
Can we get past all this without serious invasion of our personal liberty?
The administration of juvenile courts, including probation and detention facilities, is commonly run by juvenile court judges. This is different from the way most everything else is run in the USA. In most other scenarios, the legislature decides what the show is, the executive runs the show, and the judges resolve differences of opinion.
In the juvenile courts, judges get a budget and very little oversight. They're not just judging--they are contracting (sometimes on a big scale). This presents a fertile ground for corruption.
From what I've read, it looks like this corrupt judge was outrageous for years and that still a snitch was necessary to secure his prosecution. This doesn't bode well for catching other bad judges.
Why not separate judges from the contracting process?
Anything that you post on Facebook is like a letter you send to Facebook--unless Facebook promises to accord it more protection. The ONLY value Facebook has is the value that it can sell from mining the data that you send it. People who don't like it can leave.
I left. The heck with them!
I think that I can give you reasons for bothering.
First of all, the battle is better described as a a battle between creationism and empiricism.
Many fundamentalists are driven to suppress ideas that conflict with their religious belief-set. Evolutionary biology, along with geology and astronomy, have been challenged because they conflict with a religious belief-set. Fundamentalists are threatened by the thought process that spawns those conflicts--the scientific method. A lasting victory over heresy depends upon the suppression of the scientific method. Otherwise, all sorts of pesky ideas will keep sprouting up. The fundamentalists want to rip out the roots of heresy--and empiricism (including freedom of scientific thought)--is the root of scientific heresy.
NO ONE EXPECTS THE SPANISH INQUISITION!
If you care about the future of science after your lifetime, the battle against empiricism and free-ranging scientific freedom, then you must care about the battle the creationists are waging. Forget the rigid ignorant people with whom discussion or argument is entirely futile. But be concerned about the children--future scientists and supporters of scientists that need to be educated.
If you only care about the development of science within your lifetime, then the battle against the creationists is still worthwhile. Creationism is awful because it is an all out attack on empiricism, and empiricism is the foundation of all science. The suppression of empiricism and free scientific thought can happen in your lifetime.
From a worm's-eye perspective, that's one really benevolent creator!
People may be walking sideways, pretending that they're leaving.
But rock is not dead!
LONG LIVE ROCK!
Willing to kill and die . . . for pop music?
Be sure to keep your firearms WAY separate from your ammo, dude.
This simply will not happen in its present form.
If this DNA collection is legal, then it must pass muster under both STATE and FEDERAL constitutions. It may be OK under the federal constitution (where the US Supreme Court is the last word), but it will NEVER pass muster under the Washington Constitution (where the State Supreme Court has the last word). The Washington Supreme court has a strong libertarian component (I'm not exaggerating). Compelled collection from convicted felons is OK per the Wash. Supreme Court (State v. Surge, 160 Wn.2d 65), but they're not going to approve compelled collection from pretrial detainees. No way.
It's going to take a state constitutional amendment or a recomposition of the Washington Supreme Court before DNA samples can be taken from pretrial detainees.