That is incorrect. You are not using "reliance" correctly.
"Reliance" is a term of art in contract law. It refers to the case in which I do something because I have reasonably relied on you to do or not do something else. If you tell me that you want me to be the best man at your formal wedding and I rent a tux, I spend money in reliance on your promise to make me best man. If you later revoke that offer, I could sue you for the money I spent on the tux because I spent that money in reliance on you and your promise to make me best man. You could have foreseen that I would spend money on the tux in reliance on your promise, so you're on the hook for the rental fee if you revoke that promise.
If I also hire skydivers to jump out of a plane with a banner that says, "Russ is getting married," also in reliance on your promise to make me best man, you are not on the hook for the money I spend doing that. You are not on the hook for money that I spend in reliance on your promise, but that you could not reasonably foresee. Here, it would be highly unusual for you to foresee that I would hire skydivers in my role as best man.
In your example, if you pull the rug out from under someone by revoking the license, that person could sue you for any damages he suffers because he reasonably relied on your representation that you were granting him a license.
What if someone else led you to the reasonable belief that he had given you a license and then you discovered that, for whatever reason, that was untrue? Then you still get sued for reliance and you still lose, but you "join" (i.e., drag into the lawsuit) the party who purported to give you the license (see Federal Rules of Civil Procedure 14 and 18-20), you sue him as part of the same proceeding, and then he pays you.
Rule of evidence 702: "If scientific, technical, or other specialized knowledge will assist... a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto..."
There is no requirement to be a member of the leading professional body for the field. This rule, which came about from Daubert [v. Dow Merrill Pharmaceuticals], Kumho Tire, Joiner, and others has generally been interpreted broadly by the courts because judges do not want to exclude valuable evidence and because they are too stupid to understand the falsifiability language in Daubert.
Judges are guided in their admissibility decision by the requirement of rule 702 that "the testimony is based on sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case."
For states in which there are meaningful qualifications to becoming a PI, one could reasonably argue that the PI license provides a (rebuttable) presumption that the holder of the license knows reliable methods and how to apply them. The question of whether a particular PI actually did correctly apply the proper methods is a fact-specific determination to be made at trial.
(As a side note, it's entirely possible based on what you've told us that someone took the code from your company and posted it on the web, thus making your guy blameless and the web site the infringer.)
Do you want practical advice or legal advice? As a practical matter, if the original author posted his code with no license and no way to contact him and no instructions about how to get rights to make a copy, he doesn't care. He intends that people will use the code however they use it and that's the end of the matter. If the version that you have at work has deleted the name of the author from the comments then that probably wasn't what the original author would have wanted, but other than that leave it alone.
So if you want practical advice, that's it. Case closed, stop reading. If you want legal advice then do you want practical legal advice or theoretical legal advice? If you want practical legal advice, start with 17 USC 501(b): The legal or beneficial owner of an exclusive right under a copyright is entitled... to institute an action for any infringement of that particular right committed while he or she is the owner of it.
That means that the police aren't going to come knocking on your door. You get in trouble only if the copyright owner "institutes an action," meaning files a lawsuit. As a practical matter, it isn't going to happen, case closed, stop reading.
Why isn't that going to happen? Because the remedy (the cash that the copyright owner gets *IF* he wins) is defined in 17 USC 504(c) and could be as low as $200. It could be in the range of "not less than $750 or more than $30,000 as the court considers just." However, the key there is not "$30,000." The key is "as the court considers just." Does the court want to encourage every bozo who ever posted something to the web to clog the courts with paper? No. Here, what "the court considers just" is more likely to be "the court considers just having the bailiff throw all of your asses out of here and smack you upside yo' heads just for good measure to be a damned fine idea."
Also, "[i]n a case where the infringer... was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200." This is an interesting clause because it uses what is called a subjective standard. That means that the court does not look to some objective measure of reasonableness, but rather considers what the subject thought. It talks about whether the "infringer was not aware" and whether the infringer "had no reason to believe." Is your colleague a copyright lawyer? If he is, he probably had reason to know the details of copyright protection for things on the web. If not, there's a decent chance that the judge is going to drop the penalty to $200 (see discussion above about the judge wanting to send a message about the likelihood of getting rich by clogging his courtroom with borderline frivolous claims).
So that's your practical legal advice.
Do you want ironclad legal advice on how to absolutely avoid liability? Here it is: go kill yourself now. If you do anything else, there's going to be some legal theory somewhere that will allow someone to impose some sort of legal liability for something at some time.
From the story to which the link goes: /=============
Another magistrate judge, who has denied about a dozen such requests in the past six months, said some agents attach affidavits to their applications that merely assert that the evidence offered is "consistent with the probable cause standard" of Rule 41 of the Federal Rules of Criminal Procedure. The judge spoke on condition of anonymity because of the sensitivity of the issue.
\=============
Regardless of which side of the question you're on, how can you not frightened by the idea that judges will talk about important current issues of law only under cover to anonymity?
Life was good then.;-) These days, it might not even be possible to identify the central exchange in use. For that matter, there might not even be a central exchange (e.g., unmanaged VoIP).
Comcast carries a lot of VoIP traffic. In the circuit switch days to which you refer, calls traveled over a dedicated circuit, meaning that there were two endpoints and every part of the call traversed exactly the same path through the system. (Dedicated circuit is different from a dedicated wire - obviously, you don't get your own wire from you to anyone. But once the path through the system is set up, the call traverses that path until the call is ended.) So it was an if-and-only-if setup. Everything in the call went through that circuit, and everything in that circuit related to the call.
With VoIP, there's all sorts of data moving along the line. The restrictions that law enforcement folk are only allowed to see exactly what the warrant covers creates an interesting problem for them. Without looking at each packet, they can't tell if a particular packet is one of the VoIP packets that they're allowed to see, and if they look at each packet then they are certain to see things that they aren't allowed to see. Open a packet... goodie, it's a VoIP packet from the target of the tap; open another packet... OOPS! it's part of an email message, quick, everyone close your eyes!
Further, they've got to get their tap in place before the packets have a chance to do that random-path-through-the-internet thing that they do. Add in TOR, encryption, chaffing, Slurper-looking-things spreading the packets over multiple networks and you've got interesting problems (if you're law enforcement) or opportunities (if you're not particular interested in solving law enforcement's problems).
They have to get exactly the right data, neither more nor less. So if they have a tap/trace warrant, they can get only the phone number that the target calls or is called from. If they have a content warrant then they can have the content of the call, but not the content of any other calls. In some cases, they can tap based on content. So they can listen for a short period of time, say for example one minute, and then if they hear nothing related to the subject of the wiretap then they have to break the connection.
It's all pretty interesting. Let's say that The Man has a warrant that lets Him find the number being called from a particular phone. Easy, no? No. What if the target has a calling card that he uses to call an 800 number, then keys in the number of his calling card and the actual destination of the call. Are those post-dial digits part of the call content, in which case a tap/trace will not allow them to gather that data, or is it part of the call destination, in which case law enforcement is permitted to collect those because it relates to the destination of the call? What if he sets call forwarding on a particular phone and then calls that phone. Can law enforcement get the out-of-band signalling that would tell them where the call is really going?
Let me know if you'd like me to post, oh, 37 GB on this topic.;-) I've been researching the legal implications of various wiretap-related things as part of another project and it's really complex and interesting.
Page 58 of http://www.usdoj.gov/oig/reports/FBI/a0613/final.pdf shows that $1K is pretty reasonable, depending on the type of wiretap. On page 56 of the report, it notes that $250 is typical for easy taps. However, the table on page 58 shows that $2200 is a lot more in line with certain types.
Wiretapping is harder than it looks. The telecomm provider is typically responsible for making sure that the law enforcement agency (LEA) gets exactly what it is supposed to get, neither more nor less. They have to provide 24/7 support. In some cases, the LEA tries to prevent them from doing routine maintenance because doing things like rebooting switches drops taps. Depending on the particular type of tap, they're working for their $1000.
Those steaming sacks of shit are requiring that I opt out by calling an automated system and entering my phone number, billing zip code, and last four digits of my social security number. However, because I don't remember the random number I would have given any phone company who asked for my SSN, I can't enter it!
It does depend on the document. There are docs that can be kept from the court with or without encryption. However, on point with your question, Federal Rule of Civil Procedure 34(a) states that "[a]ny party may [cause any other party to cough up] any designated documents (including writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form)". (This is a rule of civil procedure; I don't have my crim proc book handy and of course criminal procedure would be directly on point here.)
As to disclosing the location of a body versus providing encryption keys, I'd think along these lines: People have to surrender potentially incriminating evidence against themselves all the time (contrary text in the Fourth Amendment notwithstanding). For example, it is well-established that even before being charged, people may often (but not always) have to allow their fingerprints to be taken even though that will place them at the scene of a crime; hand over their IDs, even though that will establish that they are the ones who jumped bail; and occasionally surrender DNA samples even though that will tend to incriminate them in various ways. Once the court knows that you've got something interesting, the court will often want to take a peek. Some things (e.g., privileged communications with an attorney) are off-limits, but a surprising amount is not.
If the court knows that you know where the body is, the court will try to compel you to tell and bad things will happen to you if you do not. However, if the court merely strongly suspects, even US courts will not punish you until you produce the body because of the possibility that you actually don't know where it is.
Federal Rules of Civil Procedure 26-36 are perfectly clear - the US can demand your crypto keys as part of discovery in litigation, end of story. Fed. R. Civ. P. 37 spells out what happens if you don't comply, and the basic idea is that you get the choice that Steve James offers the unnamed punching bag in The Soldier: "Duck or bleed." If you get served with a subpoena or ordered to comply with discovery, you can comply (duck) or resist (bleed).
Having said that, I'm immune. I have numerous files and directories on my computer that are encrypted with strong crypto and to which I do not have the password. I created them, assigned them random passwords that I never knew, filled them with random garbage that I never saw, and there they sit. I do not need to produce decrypted versions of those files or directories in court or anywhere else because they are not under my control.
So far, so good, but who cares about files with no useful information? I do. Ordinarily, the fact that there's a decrypted file on my computer establishes a ludicrously-hard-to-rebut presumption that I have "possession, custody, or control" of the data therein. (Fed. R. Civ. P. 34(a)(1)) However, because I can establish that I have many files and directories that are not in my possession, custody, or control (for decryption purposes), that presumption does not apply to me. The party seeking disclosure must establish, file by file, that I can decrypt the file. And that's damned hard to do.
A few notes: if you do this to circumvent judicial process, you're not going to get away with it. The judge is just going to allow the other party to draw the worst reasonable inferences about the contents of the file and force you to rebut. I, however, am not doing this to circumvent the law; I am doing it to make it hard for hackers who break into my system to figure out what they have to crack to get my important business data. The fact that the net result is that it has the potential to make discovery harder is only a side-effect for which I cannot be sanctioned.
Second, if someone can establish that you should be able to produce something, this system isn't going to protect you. Crypto is just a high-tech shovel and a hard drive is just a high-tech back yard. Saying that you aren't going to produce an encrypted document is no different than saying that you aren't going to tell someone where in the back yard you buried that document. The court is not without tools to deal with uncooperative parties.
Last, if you get involved with subpoenas or discovery, seek advice from something stronger than this posting.
First, I apologize to the Slashdot community for moronically making my previous posting under this same title without using preview. If I had, I'd have seen that all of my spacing was lost and I thereby made the post almost unintelligible. Moderators, if you would be so kind as to delete the previous post then I would be in your debt. Second, here's the post as it should have appeared:
>"It doesn't make any sense," said Terry Francke, general counsel of Californians Aware. "First of all, I doubt that it's a fact that the city copyrights the pay stubs. I don't know why it would."
They wouldn't. Why not? Because it's no longer necessary to register something for the author to claim copyright. That does not mean that it's not copyrighted.
>"And secondly, it's not clear to me that the display of the pay stubs would violate the copyright act anyway. It's simply displaying an image of them, it's not making a copy of them."
An image *is* a copy.
>Francke added that if the documents are indeed copyrighted, the posting by the blog of the pay stubs would qualify as a "fair use" - meaning it would pass legal muster - because there is no market value lost by the publication.
Fair use is defined by 17 U.S.C. 107 and by various judicial decisions. 17 U.S.C. 107 sayeth, in part:/==========...the fair use of a copyrighted work... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work. \==========
This may or may not be "fair use", but it's easy to use the statutory definition to make an argument against. If the blogger accepts advertising or otherwise profits from his blogging then this can be construed as a commercial use; he nature of the pay stubs, or of any pay stub, is typically private; and the entirety of each stub is used rather than quoting a subsection such as stating only the name of the employee and the compensation.
I don't know the whole story on this one, but it's not just government-oppresses-blogger.
>"It doesn't make any sense," said Terry Francke, general counsel of Californians Aware. "First of all, I doubt that it's a fact that the city copyrights the pay stubs. I don't know why it would."
They wouldn't. Why not? Because it's no longer necessary to register something for the author to claim copyright. That does not mean that it's not copyrighted.
>"And secondly, it's not clear to me that the display of the pay stubs would violate the copyright act anyway. It's simply displaying an image of them, it's not making a copy of them."
An image *is* a copy.
>Francke added that if the documents are indeed copyrighted, the posting by the blog of the pay stubs would qualify as a "fair use" - meaning it would pass legal muster - because there is no market value lost by the publication.
Fair use is defined by 17 U.S.C. 107 and by various judicial decisions. 17 U.S.C. 107 sayeth, in part:/==========...the fair use of a copyrighted work... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
\==========
This may or may not be "fair use", but it's easy to use the statutory definition to make an argument against. If the blogger accepts advertising or otherwise profits from his blogging then this can be construed as a commercial use; he nature of the pay stubs, or of any pay stub, is typically private; and the entirety of each stub is used rather than quoting a subsection such as stating only the name of the employee and the compensation.
I don't know the whole story on this one, but it's not just government-oppresses-blogger.
This seems like as good a time as any to remind ourselves about EFF's http://stopthespying.org/ web site. McConnell did not just lie to the press. He had to call Senator Lieberman to "clarify" his testimony because he lied to Congress. It hardly needs to be restated to this audience that we can tell when these guys are lying because their lips are moving, but it is worth remembering that there's something that we can and should be doing right now, which is backing up the EFF efforts.
The RIM lawyers pissed off the judge so badly in that case that they're lucky the judge just approved the $600M settlement. I think his preference would have been the death penalty. By the time it got to the appeals level, the facts established in the trial phase were basically impossible to overcome. Presumably, current defendants will have learned. Although NTP has a >$600M war chest, so don't look for them to be pushovers.
We've hired Russians, Indians, Chinese, and my current team includes members from Argentina. The American programmers have no worries. In terms of raw skill, it's hard to beat the Russians but it rarely comes down to raw skill. In terms of $/hour paid to the programmer, it's hard to beat the Indians but it never comes down to $/hour paid to the programmer. It's a business decision and intelligent business decisions factor in all of the costs. What are the costs of having colleagues on the other side of the world? What are the costs of cultural translation?
Just to give one example: we opened a test center in China. The first time we asked them to do release testing, they asked us what the test results were. Hm. We didn't know. We hired them to run tests. How could we know what the results were if they hadn't run the tests yet? Turns out that it's not always a good idea to report that tests have failed when management has already decided that they've passed, so they weren't willing to give us the test results from the software until we gave them the test results from the management meeting. How much is it worth to be able to tell your testers to test something and have them give you the actual test results?
On the other hand, to use a phrase popularized when NAFTA was coming on line, if you do the work of a Mexican peasant, you get the pay of a Mexican peasant. Keep your skills current, demand to be put in front of customers at least a few times per year, and stay in touch with the field and you'll have no problems. Retire in place and you retire as a Mexican peasant.
>If it were illegal to make free copies of digital media then you wouldn't be able to buy DVD burners.
It's illegal to murder people, but you can still buy guns.
>The Audio Home Recording Act of 1992...
I'm reasonably sure that you have your citation wrong here. AHRA (P.L. 102-563) states as its purpose the following:
An Act to amend title 17, United States Code, to implement a
royalty payment system and a serial copy management system for
digital audio recording, to prohibit certain copyright
infringement actions, and for other purposes.
The closest the Act comes to saying what you say it says is 17 USC 1008:
/========= No action may be brought under this title alleging infringement of copyright based on the... noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings. \=========
However, there were laws passed after 1992 and the 1992 Act covers only noncommercial copying for space shifting and backup. Once you change from talking about copying to talking about distribution, the doctrine of Fair Use comes into play (17 USC 107) and your argument starts to fall apart.
Slashdot Mirror
That is incorrect. You are not using "reliance" correctly.
"Reliance" is a term of art in contract law. It refers to the case in which I do something because I have reasonably relied on you to do or not do something else. If you tell me that you want me to be the best man at your formal wedding and I rent a tux, I spend money in reliance on your promise to make me best man. If you later revoke that offer, I could sue you for the money I spent on the tux because I spent that money in reliance on you and your promise to make me best man. You could have foreseen that I would spend money on the tux in reliance on your promise, so you're on the hook for the rental fee if you revoke that promise.
If I also hire skydivers to jump out of a plane with a banner that says, "Russ is getting married," also in reliance on your promise to make me best man, you are not on the hook for the money I spend doing that. You are not on the hook for money that I spend in reliance on your promise, but that you could not reasonably foresee. Here, it would be highly unusual for you to foresee that I would hire skydivers in my role as best man.
In your example, if you pull the rug out from under someone by revoking the license, that person could sue you for any damages he suffers because he reasonably relied on your representation that you were granting him a license.
What if someone else led you to the reasonable belief that he had given you a license and then you discovered that, for whatever reason, that was untrue? Then you still get sued for reliance and you still lose, but you "join" (i.e., drag into the lawsuit) the party who purported to give you the license (see Federal Rules of Civil Procedure 14 and 18-20), you sue him as part of the same proceeding, and then he pays you.
Rule of evidence 702: "If scientific, technical, or other specialized knowledge will assist... a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto..."
There is no requirement to be a member of the leading professional body for the field. This rule, which came about from Daubert [v. Dow Merrill Pharmaceuticals], Kumho Tire, Joiner, and others has generally been interpreted broadly by the courts because judges do not want to exclude valuable evidence and because they are too stupid to understand the falsifiability language in Daubert.
Judges are guided in their admissibility decision by the requirement of rule 702 that "the testimony is based on sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case."
For states in which there are meaningful qualifications to becoming a PI, one could reasonably argue that the PI license provides a (rebuttable) presumption that the holder of the license knows reliable methods and how to apply them. The question of whether a particular PI actually did correctly apply the proper methods is a fact-specific determination to be made at trial.
(As a side note, it's entirely possible based on what you've told us that someone took the code from your company and posted it on the web, thus making your guy blameless and the web site the infringer.)
... was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200." This is an interesting clause because it uses what is called a subjective standard. That means that the court does not look to some objective measure of reasonableness, but rather considers what the subject thought. It talks about whether the "infringer was not aware" and whether the infringer "had no reason to believe." Is your colleague a copyright lawyer? If he is, he probably had reason to know the details of copyright protection for things on the web. If not, there's a decent chance that the judge is going to drop the penalty to $200 (see discussion above about the judge wanting to send a message about the likelihood of getting rich by clogging his courtroom with borderline frivolous claims).
Do you want practical advice or legal advice? As a practical matter, if the original author posted his code with no license and no way to contact him and no instructions about how to get rights to make a copy, he doesn't care. He intends that people will use the code however they use it and that's the end of the matter. If the version that you have at work has deleted the name of the author from the comments then that probably wasn't what the original author would have wanted, but other than that leave it alone.
So if you want practical advice, that's it. Case closed, stop reading. If you want legal advice then do you want practical legal advice or theoretical legal advice? If you want practical legal advice, start with 17 USC 501(b): The legal or beneficial owner of an exclusive right under a copyright is entitled... to institute an action for any infringement of that particular right committed while he or she is the owner of it.
That means that the police aren't going to come knocking on your door. You get in trouble only if the copyright owner "institutes an action," meaning files a lawsuit. As a practical matter, it isn't going to happen, case closed, stop reading.
Why isn't that going to happen? Because the remedy (the cash that the copyright owner gets *IF* he wins) is defined in 17 USC 504(c) and could be as low as $200. It could be in the range of "not less than $750 or more than $30,000 as the court considers just." However, the key there is not "$30,000." The key is "as the court considers just." Does the court want to encourage every bozo who ever posted something to the web to clog the courts with paper? No. Here, what "the court considers just" is more likely to be "the court considers just having the bailiff throw all of your asses out of here and smack you upside yo' heads just for good measure to be a damned fine idea."
Also, "[i]n a case where the infringer
So that's your practical legal advice.
Do you want ironclad legal advice on how to absolutely avoid liability? Here it is: go kill yourself now. If you do anything else, there's going to be some legal theory somewhere that will allow someone to impose some sort of legal liability for something at some time.
From the story to which the link goes:
/=============
Another magistrate judge, who has denied about a dozen such requests in the past six months, said some agents attach affidavits to their applications that merely assert that the evidence offered is "consistent with the probable cause standard" of Rule 41 of the Federal Rules of Criminal Procedure. The judge spoke on condition of anonymity because of the sensitivity of the issue.
\=============
Regardless of which side of the question you're on, how can you not frightened by the idea that judges will talk about important current issues of law only under cover to anonymity?
Life was good then. ;-) These days, it might not even be possible to identify the central exchange in use. For that matter, there might not even be a central exchange (e.g., unmanaged VoIP).
Comcast carries a lot of VoIP traffic. In the circuit switch days to which you refer, calls traveled over a dedicated circuit, meaning that there were two endpoints and every part of the call traversed exactly the same path through the system. (Dedicated circuit is different from a dedicated wire - obviously, you don't get your own wire from you to anyone. But once the path through the system is set up, the call traverses that path until the call is ended.) So it was an if-and-only-if setup. Everything in the call went through that circuit, and everything in that circuit related to the call.
With VoIP, there's all sorts of data moving along the line. The restrictions that law enforcement folk are only allowed to see exactly what the warrant covers creates an interesting problem for them. Without looking at each packet, they can't tell if a particular packet is one of the VoIP packets that they're allowed to see, and if they look at each packet then they are certain to see things that they aren't allowed to see. Open a packet... goodie, it's a VoIP packet from the target of the tap; open another packet... OOPS! it's part of an email message, quick, everyone close your eyes!
Further, they've got to get their tap in place before the packets have a chance to do that random-path-through-the-internet thing that they do. Add in TOR, encryption, chaffing, Slurper-looking-things spreading the packets over multiple networks and you've got interesting problems (if you're law enforcement) or opportunities (if you're not particular interested in solving law enforcement's problems).
They have to get exactly the right data, neither more nor less. So if they have a tap/trace warrant, they can get only the phone number that the target calls or is called from. If they have a content warrant then they can have the content of the call, but not the content of any other calls. In some cases, they can tap based on content. So they can listen for a short period of time, say for example one minute, and then if they hear nothing related to the subject of the wiretap then they have to break the connection.
;-) I've been researching the legal implications of various wiretap-related things as part of another project and it's really complex and interesting.
It's all pretty interesting. Let's say that The Man has a warrant that lets Him find the number being called from a particular phone. Easy, no? No. What if the target has a calling card that he uses to call an 800 number, then keys in the number of his calling card and the actual destination of the call. Are those post-dial digits part of the call content, in which case a tap/trace will not allow them to gather that data, or is it part of the call destination, in which case law enforcement is permitted to collect those because it relates to the destination of the call? What if he sets call forwarding on a particular phone and then calls that phone. Can law enforcement get the out-of-band signalling that would tell them where the call is really going?
Let me know if you'd like me to post, oh, 37 GB on this topic.
Page 58 of http://www.usdoj.gov/oig/reports/FBI/a0613/final.pdf shows that $1K is pretty reasonable, depending on the type of wiretap. On page 56 of the report, it notes that $250 is typical for easy taps. However, the table on page 58 shows that $2200 is a lot more in line with certain types. Wiretapping is harder than it looks. The telecomm provider is typically responsible for making sure that the law enforcement agency (LEA) gets exactly what it is supposed to get, neither more nor less. They have to provide 24/7 support. In some cases, the LEA tries to prevent them from doing routine maintenance because doing things like rebooting switches drops taps. Depending on the particular type of tap, they're working for their $1000.
Those steaming sacks of shit are requiring that I opt out by calling an automated system and entering my phone number, billing zip code, and last four digits of my social security number. However, because I don't remember the random number I would have given any phone company who asked for my SSN, I can't enter it!
It does depend on the document. There are docs that can be kept from the court with or without encryption. However, on point with your question, Federal Rule of Civil Procedure 34(a) states that "[a]ny party may [cause any other party to cough up] any designated documents (including writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form)". (This is a rule of civil procedure; I don't have my crim proc book handy and of course criminal procedure would be directly on point here.)
As to disclosing the location of a body versus providing encryption keys, I'd think along these lines: People have to surrender potentially incriminating evidence against themselves all the time (contrary text in the Fourth Amendment notwithstanding). For example, it is well-established that even before being charged, people may often (but not always) have to allow their fingerprints to be taken even though that will place them at the scene of a crime; hand over their IDs, even though that will establish that they are the ones who jumped bail; and occasionally surrender DNA samples even though that will tend to incriminate them in various ways. Once the court knows that you've got something interesting, the court will often want to take a peek. Some things (e.g., privileged communications with an attorney) are off-limits, but a surprising amount is not.
If the court knows that you know where the body is, the court will try to compel you to tell and bad things will happen to you if you do not. However, if the court merely strongly suspects, even US courts will not punish you until you produce the body because of the possibility that you actually don't know where it is.
Federal Rules of Civil Procedure 26-36 are perfectly clear - the US can demand your crypto keys as part of discovery in litigation, end of story. Fed. R. Civ. P. 37 spells out what happens if you don't comply, and the basic idea is that you get the choice that Steve James offers the unnamed punching bag in The Soldier: "Duck or bleed." If you get served with a subpoena or ordered to comply with discovery, you can comply (duck) or resist (bleed).
Having said that, I'm immune. I have numerous files and directories on my computer that are encrypted with strong crypto and to which I do not have the password. I created them, assigned them random passwords that I never knew, filled them with random garbage that I never saw, and there they sit. I do not need to produce decrypted versions of those files or directories in court or anywhere else because they are not under my control.
So far, so good, but who cares about files with no useful information? I do. Ordinarily, the fact that there's a decrypted file on my computer establishes a ludicrously-hard-to-rebut presumption that I have "possession, custody, or control" of the data therein. (Fed. R. Civ. P. 34(a)(1)) However, because I can establish that I have many files and directories that are not in my possession, custody, or control (for decryption purposes), that presumption does not apply to me. The party seeking disclosure must establish, file by file, that I can decrypt the file. And that's damned hard to do.
A few notes: if you do this to circumvent judicial process, you're not going to get away with it. The judge is just going to allow the other party to draw the worst reasonable inferences about the contents of the file and force you to rebut. I, however, am not doing this to circumvent the law; I am doing it to make it hard for hackers who break into my system to figure out what they have to crack to get my important business data. The fact that the net result is that it has the potential to make discovery harder is only a side-effect for which I cannot be sanctioned.
Second, if someone can establish that you should be able to produce something, this system isn't going to protect you. Crypto is just a high-tech shovel and a hard drive is just a high-tech back yard. Saying that you aren't going to produce an encrypted document is no different than saying that you aren't going to tell someone where in the back yard you buried that document. The court is not without tools to deal with uncooperative parties.
Last, if you get involved with subpoenas or discovery, seek advice from something stronger than this posting.
First, I apologize to the Slashdot community for moronically making my previous posting under this same title without using preview. If I had, I'd have seen that all of my spacing was lost and I thereby made the post almost unintelligible. Moderators, if you would be so kind as to delete the previous post then I would be in your debt. Second, here's the post as it should have appeared:
/========== ...the fair use of a copyrighted work... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
>"It doesn't make any sense," said Terry Francke, general counsel of Californians Aware. "First of all, I doubt that it's a fact that the city copyrights the pay stubs. I don't know why it would."
They wouldn't. Why not? Because it's no longer necessary to register something for the author to claim copyright. That does not mean that it's not copyrighted.
>"And secondly, it's not clear to me that the display of the pay stubs would violate the copyright act anyway. It's simply displaying an image of them, it's not making a copy of them."
An image *is* a copy.
>Francke added that if the documents are indeed copyrighted, the posting by the blog of the pay stubs would qualify as a "fair use" - meaning it would pass legal muster - because there is no market value lost by the publication.
Fair use is defined by 17 U.S.C. 107 and by various judicial decisions. 17 U.S.C. 107 sayeth, in part:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
\==========
This may or may not be "fair use", but it's easy to use the statutory definition to make an argument against. If the blogger accepts advertising or otherwise profits from his blogging then this can be construed as a commercial use; he nature of the pay stubs, or of any pay stub, is typically private; and the entirety of each stub is used rather than quoting a subsection such as stating only the name of the employee and the compensation.
I don't know the whole story on this one, but it's not just government-oppresses-blogger.
>"It doesn't make any sense," said Terry Francke, general counsel of Californians Aware. "First of all, I doubt that it's a fact that the city copyrights the pay stubs. I don't know why it would." They wouldn't. Why not? Because it's no longer necessary to register something for the author to claim copyright. That does not mean that it's not copyrighted. >"And secondly, it's not clear to me that the display of the pay stubs would violate the copyright act anyway. It's simply displaying an image of them, it's not making a copy of them." An image *is* a copy. >Francke added that if the documents are indeed copyrighted, the posting by the blog of the pay stubs would qualify as a "fair use" - meaning it would pass legal muster - because there is no market value lost by the publication. Fair use is defined by 17 U.S.C. 107 and by various judicial decisions. 17 U.S.C. 107 sayeth, in part: /========== ...the fair use of a copyrighted work... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
\==========
This may or may not be "fair use", but it's easy to use the statutory definition to make an argument against. If the blogger accepts advertising or otherwise profits from his blogging then this can be construed as a commercial use; he nature of the pay stubs, or of any pay stub, is typically private; and the entirety of each stub is used rather than quoting a subsection such as stating only the name of the employee and the compensation.
I don't know the whole story on this one, but it's not just government-oppresses-blogger.
Where'd you get the bridges?
This seems like as good a time as any to remind ourselves about EFF's http://stopthespying.org/ web site. McConnell did not just lie to the press. He had to call Senator Lieberman to "clarify" his testimony because he lied to Congress. It hardly needs to be restated to this audience that we can tell when these guys are lying because their lips are moving, but it is worth remembering that there's something that we can and should be doing right now, which is backing up the EFF efforts.
The RIM lawyers pissed off the judge so badly in that case that they're lucky the judge just approved the $600M settlement. I think his preference would have been the death penalty. By the time it got to the appeals level, the facts established in the trial phase were basically impossible to overcome. Presumably, current defendants will have learned. Although NTP has a >$600M war chest, so don't look for them to be pushovers.
We've hired Russians, Indians, Chinese, and my current team includes members from Argentina. The American programmers have no worries. In terms of raw skill, it's hard to beat the Russians but it rarely comes down to raw skill. In terms of $/hour paid to the programmer, it's hard to beat the Indians but it never comes down to $/hour paid to the programmer. It's a business decision and intelligent business decisions factor in all of the costs. What are the costs of having colleagues on the other side of the world? What are the costs of cultural translation?
Just to give one example: we opened a test center in China. The first time we asked them to do release testing, they asked us what the test results were. Hm. We didn't know. We hired them to run tests. How could we know what the results were if they hadn't run the tests yet? Turns out that it's not always a good idea to report that tests have failed when management has already decided that they've passed, so they weren't willing to give us the test results from the software until we gave them the test results from the management meeting. How much is it worth to be able to tell your testers to test something and have them give you the actual test results?
On the other hand, to use a phrase popularized when NAFTA was coming on line, if you do the work of a Mexican peasant, you get the pay of a Mexican peasant. Keep your skills current, demand to be put in front of customers at least a few times per year, and stay in touch with the field and you'll have no problems. Retire in place and you retire as a Mexican peasant.
>If it were illegal to make free copies of digital media then you wouldn't be able to buy DVD burners.
/========= ... noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.
It's illegal to murder people, but you can still buy guns.
>The Audio Home Recording Act of 1992...
I'm reasonably sure that you have your citation wrong here. AHRA (P.L. 102-563) states as its purpose the following:
An Act to amend title 17, United States Code, to implement a
royalty payment system and a serial copy management system for
digital audio recording, to prohibit certain copyright
infringement actions, and for other purposes.
The closest the Act comes to saying what you say it says is 17 USC 1008:
No action may be brought under this title alleging infringement of copyright based on the
\=========
However, there were laws passed after 1992 and the 1992 Act covers only noncommercial copying for space shifting and backup. Once you change from talking about copying to talking about distribution, the doctrine of Fair Use comes into play (17 USC 107) and your argument starts to fall apart.