DNS is recursive, right? Starting with the TLD servers, then downwards. Someone upstream of Bell is returning a 'domain not found' and Bell is intercepting that and modifying it.
I understand that you're using Bell's local DNS servers to start the search, but the effect is the same as them intercepting and modifying your communications.
ISPs doing this kind of crap should get sued under whatever law most closely applies.
IANAL, and I'm even less familiar with Canadian laws on the subject, but if a U.S. ISP were doing this, it's not clear that any U.S. law applies to this behavior. Although modifying DNS responses for profit seems intuitively "fraudulent", the Computer Fraud and Abuse Act (18 USC 1030 et seq) speaks in terms of "access", "authorization" and "damage". It's pretty hard to force this behavior into that framework (are the ISPs nameservers "damaging" the client? "accessing" the client? what's their "authorization") in a way that actually passes the Laugh Test.
NXDOMAIN spoofing/redirection is inexcusable, but "resolver failover on NXDOMAIN" behavior is broken too. Cisco once again proves that it is clueless about the fundamentals of DNS (any of their customers with the GSS product already knows this of course).
Can we agree that the media and political opportunists feed and amplify the revulsion that the vast majority of adults have at the thought of adults having sex with children?
The "think of the children" cynicism is, in my opinion, directed at that feeding and amplification, and the translation of the resulting hysteria into (arguably bad) public policy, not at the base emotional reaction itself.
I didn't bring up genetics; you did. Frankly, I don't think genetics is relevant here, unless you're willing to take this to its logical conclusion, leapfrog over the whole primal-versus-merely-psycho-social-fear distinction, and state for the record that the huge amount of attention given to the "pedophile problem" in public policy is justified because pedophilia causes "weak genes" (the argument you put forward earlier, not necessarily as your own).
If you don't actually believe the "weak genes" argument, then why bring it up? Are you in the habit of giving unproven, illogical arguments and/or irrational fears, as justifications for public policy positions?
We've made peace with this aspect of human nature.
What we haven't made peace with, is the translation of this "primal instinct" into a dramatic skewing of our public-policy priorities.
Also, we're a little bit skeptical of this "primal instinct" argument, since the same sort of thing was trotted out to justify mistreatment of racial minorities, of women, of gays, etc. It's awfully convenient to say "my primal instinct causes me to do X" therefore X should be enshrined in public policy.
Part of the whole reason we form societies in the first place is to rein in our primal instincts for the greater good.
you do realize that some of you sound more hysterical than the "won't somebody think of the children" tired meme you are supposedly skewering, right?
let's put it this way: underneath all of the teenagers emailing each other naked pictures, there actually exists actual pedophiles who actually harm children, and society has every logical and moral reason to do something about them. btw, they are also highly recidivist: you murder once for certain reasons, then you may never murder again, but once a pedophile, always a pedophile
so here's a clue for the whole lot of the slashdot high holy indignation brigade: you figure out a better way to deal with pedophiles. until then, criticizing without proposing a superior alternative means nothing will change. and no, i'm sorry, doing nothing is not a viable alternative
because, believe it or not, there are parents out there who aren't sex-phobic social conservatives who are genuinely and rightfully worried about their children's exposure to actual, real pedophiles who prey on prepubescent kids. yes, you heard it here first (apparently): believe it or not, pedophiles aren't made up bogeymen, pedophiles actually exist, and are actually a danger to children in their communities
you may now say they are few and rare, that exposure to sex with an adult is harmless, etc., etc.
and completely miss the point of my comment
and therefore continue to exist in the same useless hysterical population of people you are supposedly standing against
No, I think you're the one missing the point. As a society, we have a lot of problems to deal with. We rank those problems in terms of seriousness and the long-term consequences of ignoring or not adequately addressing the problem. Given that only a tiny sliver of the population consists of "real pedophiles who prey on prepubescent kids", and only a small percentage of those will actually commit a crime, because of all the protections already in place against murder/kidnapping/rape, and given -- let's be brutally honest here -- that a lot of victims mostly recover, at least to the point of being productive and relatively-happy citizens, where do you think this "problem" falls in the ranking of problems we have to deal with? Pretty damn low, I'd say. Many of our other problems have many more victims, and often those victims never recover. Think terrorist bombs. Think polluted air/water/food, leading to cancer. Think gang violence.
Yet, a hugely-disproportionate amount of time/effort/energy/focus/resources/money is spent on the "pedophile problem" -- each measure more expansive in its scope, and more draconian with respect to its targets -- compared to more pressing issues. Why? Because it's politically productive to do so. That's where the application of "think of the children" meme to anti-pedophilia efforts derives, and the understandable cynicism which it expresses. Not simply because we think the measures often misfire with respect to e.g. teenagers mailing each other nude photos and the like, or because such measures intrude too heavily on the civil rights of those it targets (e.g. Freedom of Association and whatnot). Those are concerns, certainly, but the main point is that the "pedophilia problem" is being treated disproportionately, and other larger problems aren't being addressed properly. It's a matter of priorities.
P.S. Don't you think "underneath" is a bit of a strange choice of preposition, especially given the context of the discussion?
I still maintain that proper Due Process should be observed when incarcerating someone indefinitely, it doesn't matter what you call the procedure or the offense -- it's a significant, open-ended loss of liberty (not to mention wealth, if you are deprived of the means of making a living), and deserves the proper protections and safeguards that have been developed based on Constitutional Law.
I also think that punishments involving long periods of incarceration should automatically raise the state's burden of proof to "beyond reasonable doubt", regardless of what class of crime is being charged, or even if the charge has the "crime" label on it at all.
Now, if you go through all of that, cross all of the t's, dot all of the i's, and the defendant is found to be wilfully disobeying a valid court order, as may be the case here (based on some of the comments I'm reading), then sure, let him rot in jail. And I don't even have a problem with the jail term being open-ended, since -- as they say -- the defendant "carries the key to the jail cell in his own pocket", i.e. he can end his "sentence" at any time by complying with the court order. If, at any time, however, it becomes literally impossible to comply with the court order, e.g. the person to whom one owes money dies without any heirs (IANAL, is the debt erased in this case?), then I would say the contempt status evaporates and the defendant should be released.
"But what if an 80-year-old wants to marry a 10-year-old girl?" Then he's committing statutory rape. We don't need separate laws.
Well, conjugal relations weren't something you mentioned previously as a necessary element of marriage, so theoretically, an 80-year-old and 10-year-old could enter into a platonic marriage without breaking any laws. But, I highly doubt that any religion would sanction such a union, and that only leaves "personal commitment" , which is questionable, at best, with respect to the relationship between individuals of such disparate ages.
Though courts have inherent power through civil contempt to enforce compliance with their lawful orders, the justification for coercive imprisonment as applied to such contempt depends upon the contemnor's ability to comply with the court's order.
. That's from Shillitani v. United States, 384 U.S. 364 (1966).
this would make a complete mockery of the protections that the Framers intended.
AFAIK Contempt is a common law principle you inherited from us here in the UK. Your framers would have been quite aware of it.
Oh, I'm sure they were aware of it. But, you know, part of the reason we went through the whole American Revolution thing (did you hear about that? it was in all the papers), wrote and ratified a Constitution, a Bill of Rights, etc. was to establish greater personal freedoms and liberties than the English legal system permitted at the time.
Or, translated even more loosely, "fantasy themed" ("magical beasts" being more descriptive of that setting than, say, a sci-fi setting, an Old West setting, a Victorian London setting, or any other popular settings in which MMORPGs have been placed).
No, fundamentally anything that results in prolonged incarceration by the legal system must go through an orderly legal process, with appropriate checks and balances, whether you pin the "crime" label on it or not. If the constitutional requirement of "Due Process of Law" can be negated simply by affixing a label other than "crime" to a particular legal process, then this would make a complete mockery of the protections that the Framers intended.
Law, and the practioners thereof, are supposed to look at the substance of things, not merely at labels or forms. Incarcerating someone for months or years, or indefinitely, is, in substance, a constitutionally-significant outcome, and constitutional protections must not be evadable simply by playing label games. You can call the procedure "fred" if you want, but Due Process of Law must be observed.
Didn't the "enemy combatant" failed experiment teach us anything? Don't play silly label games with indefinite incarceration. Any judges of integrity will see through that deception, sooner or later. In this case it was "later"; it took 14 years for the injustice to be corrected. Hopefully this has set a precedent which will allow the vindication of other victims of judicial abuse in a much more timely fashion.
Judges make decisions of law, juries make decisions of fact. If the judge thought this guy was lying about his financial situation, that's a decision of fact, and it's not his place to make it unilaterally, at least not in a way that results in the defendant's loss of liberty for 14 years.
I have no fundamental problem, conceptually, with the crime of Contempt, but if the penalty is incarceration, then it needs to follow the usual legal process, i.e. effective representation, presenting evidence in accordance with the usual rules of evidence, presenting testimony in accordance with those respective rules, opportunity for rebuttal, respect for the decisions-of-law/decisions-of-fact distinction, proper instruction/composition/integrity of the jury, etc. Also, the judge presiding over a Contempt trial should not be the same judge against whom the Contempt was allegedly perpetrated. That's such an obvious, flagrant conflict of interest it shouldn't even be considered as an option.
Do keep in mind that the legal definition is really, past all the smoke and mirrors, whatever the judge personally finds distasteful. Deciding what the population doesn't need or want to view for them has no place in a free society.
Then of course, we're not a free society.
The law often makes up legal principles (usually giving them Latin names to try to make them seem magical and justified) to override other legal principles. Obscenity is a great way to override freedom of speech by taking speech, labeling it "obscenity," and then claiming that it's "not really speech." A problem with the constitution colliding with the rights of minors and school? No problem! "En loco parentis," is right up your alley (whether you agree with the concept or not).
Mmmmm... pretty bad example there. You imply that In loco parentis (note spelling) was made up by the U.S. Federal Courts, but actually the concept has a long pedigree, back to English Common Law. The only thing "new" about it is that the concept has been applied to primary and secondary educational settings to set tighter limits than usual on Free Speech "free expression". Frankly, even though I consider myself somewhat of a First Amendment advocate, I don't have a problem with this general doctrine. The purpose of these educational settings is, after all, to educate, not just to be a open forum for "free expression". Until they are educated, children and teens aren't really capable, in constitutional terms, of proper "free expression", and any claims of same are almost certainly just rationalizations for acting out or bad behavior. You know it, I know it, when a teenager is caught in disruptive behavior and says they're "freely expressing" himself/herself, 9 times out of 10 it's just a cover for something else. The Constitutional Law doctrine actually has some common sense here. For tertiary education, the doctrine does not apply, since those settings are supposed to be more about a free exchange of ideas.
The "community standards" excuse is, even if it is applied as per the name, is a violation of individual rights which the legal system has been more than happy to sacrifice in the name of a sort of vicious populism. Why community standards in obscenity, and not political opinion? Obscenity, political opinion, all of it is simply how one takes it.
No, there's a big difference. If a political majority can silence or limit the opinions of a political minority, then they can use that to maintain power indefinitely. You can't really say the same about obscenity. Obscenity doesn't, in the constitutional view, give one power over others. Political expression does, by directly influencing how people vote in elections.
A. She's not a murderer, no-one has seriously and plausibly alleged that. Good luck proving that beyond a reasonable doubt.
B. If the price of freedom is that occasionally we have to let evil people go unpunished, then that's a price we as a society have agreed to bear. Does it "improve" the world to let Lori Drew escape criminal prosecution? No. But neither does it "improve" the world to set a precedent effectively criminalizing all violations of website ToS'es, in a blind anger against the actions of one despicable individual. This isn't a case of "world improvement", it's a tragic case of which among multiple options, does the least amount of damage to society in the long term.
Having said that, I think society in general has let Lori Drew know how much we disapprove of her actions, through social condemnation and ostracization, and I also hope that, at least from a financial standpoint, she may be punished severely through a civil lawsuit, Wrongful Death or the like. She's not going to get through this unscathed. Not by a long shot. Any maybe, just maybe, our wise and far-sighted legislators (eyes rolling), might craft some narrowly-tailored legislation to criminalize this sort of behavior, if and when it occurs in the future. But twisting Computer Privacy laws in the way that these prosecutors tried to twist it, was wrongheaded, and precedentially dangerous, and it is a relief that the judge took action to stop the madness.
In light of the dangerous expansion of the CFAA and the serious First Amendment and due process concerns raised by the case, a coalition of public interest organizations and individual Internet law professors today filed an amicus curiae brief in support of Drew's motion to dismiss the indictment. Some of the coalition members include EFF, Public Citizen, Center for Democracy & Technology, Lauren Gelman, Eric Goldman, Mark A. Lemley, and Daniel J. Solove. Phil Malone of the Berkman Cyberlaw Clinic and Jennifer Granick of EFF represent the coalition.
Feel free to indulge your primal "WE MUST PUNISH HER!" emotions, but some of us are ruled by reason and logic and a sense of proportion and caution with regard to the long-term consequences of our actions.
the legal strategy the prosecuters used to try to punish this woman is retarded. i don't know why they just didn't go with some sort of laws pertaining to the psychological abuse of a minor
IANAL, but I suspect those laws have never been applied outside of a parental/custodial/guardianship/in-loco-parentis context. The state prosecutors apparently didn't think much of their chances of prevailing with that approach and perhaps wanted to avoid setting a negative precedent that might limit their prosecutorial options in the future.
The federal prosecutors, on the other hand, thought nothing of establishing a ridiculous precedent that basically amounted to criminalizing any violations of a website's ToS. That's a difference in the mindset between state and federal Law Enforcement
Actually, I don't think anyone proved that she specifically intended Megan to kill herself. She intended severe emotional pain, and may have known of Megan's diagnosed depression, but it may have been difficult to prove, beyond a reasonable doubt, that she combined those things and formed a plan in her mind with Megan's suicide as the goal.
She's already been socially stigmatized, as she should be. All that remains is to remove her worldly possessions through a Wrongful Death suit. Unfortunately, if she's acquitted of all criminal charges against her, that may (IANAL btw) become marginally more difficult to pull off. I'd imagine the Wrongful Death case would need to be established from start to finish, without the benefit of a criminal conviction to lay the groundwork.
There has been so much Slashdot coverage of the Lori Drew/Megan Meier so-called "cyberbullying" case over the past several months, I suppose the summary writer simply assumed that these people were "well-known figures" on this site, albeit perhaps slightly less so than Gates/Ballmer/McBride/Obama/Stevens/Thompson/Lessig/Doctorow/Stallman/Torvalds et al....
I work for the DoD. There are those of us that work on "black" projects that have covert everything, including travel. It would be absolutely intolerable to have a record of where a car has been, either personal or rental, for an enemy agent to exploit. If there's a meeting of folks hammering out the requirements for a new fighter jet or littoral cruiser, who goes to the meeting, where the meeting was, what time the meeting was, etc. are all way too valuable to be recorded.
No, this idea is a non-starter for National security reasons. We won't even talk about organized crime getting ahold of it in order to track likely kidnap candidates' usual movements.
Translation: we (the government) can't trust ourselves to keep "black project" information secret. But you can trust us to wisely spend billions of dollars for the development of new fighter jets and littoral cruisers
IANAL, but I think maybe the strongest claim here was "false light publicity", which is a well-established tort theory-of-recovery This is sometimes defined as "publicity that invades a person's privacy by a false statement or representation that places the person in a false light that would be highly offensive to a reasonable person." The "false representation" here is that Cynthia Moreno sent a Letter to the Editor, disparaging the whole community -- a very provocative and confrontational act -- which was intended to be seen not only by Internet users (which might very well be a minority of the inhabitants of Coalinga), but by anyone who receives the Coalinga Record, or is shown the Letter to the Editor by any means. In other words, while the content of the Ode is the same regardless, a falsehood is created -- that she deliberately and intentionally used it to provoke and outrage the inhabitants of Coalinga, even the non-Internet-using inhabitants. This was not her doing.
The Superior Court doesn't even consider this line of reasoning, since it declares "Having been published on myspace.com, the Ode was not private". Yet, one of the decisions it cites while coming to that conclusion involved a subtle distinction between "secret" and "private". In that decision (M. G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623), a Little League team photograph, taken on the baseball field, was included in a television broadcast looking into allegations of sexual abuse by Little League coaches. The team members in that photograph sued for invasion of privacy because it was not "public" knowledge that they were members of the team, until the photograph was broadcast. Because of the broadcast, they were viewed as victims, perpetrators, and/or collaborators in sexual abuse, which led to great mental anguish, etc., hence the lawsuit
Yet, how are the situations fundamentally different? Cynthia Moreno's "Ode" was on myspace.com for all of 6 days before she took it down (not before her former High School Principal found it, unfortunately for her and her family). While the Little League team in the other case wasn't permanently located on any particular baseball field, if someone had been shooting random photographs of baseball fields at random places and times, they might have just as easily captured that "team photograph" and it would have been easy to deduce the members of the Little League team from the photographic evidence. Perhaps the judge(s) in this case simply don't understand what a vast wasteland myspace.com is, and how unlikely it is that anyone would find anything of particular interest there, unless they were specifically aiming to find it (as apparently this High School Principal was). Yet again, judges need to get more up to speed with Internet technology and community, in order to render proper decisions in cases that touch on the Internet, even if only indirectly.
I suppose one (relatively weak) argument could be made that posts to myspace.com are indexed automatically so that, for instance, the Ode might have shown up on a Google search for "Coalinga". But there is no discussion of that "indexing" angle in the court opinion, and no factual evidence, that I can see, that the High School Principal found Cynthia's "Ode" through any kind of index or search engine.
I was going to post something similar. Richard Posner isn't just "a U.S. Court of Appeals Judge". He's a law professor, author of several very influential books on various aspects of the law; one of the pre-eminent legal minds of our time. I have to admit, as an amateur legal theorist with a particular penchant for Con Law, I'm a bit of a Posner groupie
He may have it wrong on this copyright issue -- I need to delve further into the facts and circumstances -- but don't doubt that his view on this carries a huge amount of weight in the legal community, up to and including the Supreme Court.
Slashdot Mirror
DNS is recursive, right? Starting with the TLD servers, then downwards. Someone upstream of Bell is returning a 'domain not found' and Bell is intercepting that and modifying it.
I understand that you're using Bell's local DNS servers to start the search, but the effect is the same as them intercepting and modifying your communications.
ISPs doing this kind of crap should get sued under whatever law most closely applies.
IANAL, and I'm even less familiar with Canadian laws on the subject, but if a U.S. ISP were doing this, it's not clear that any U.S. law applies to this behavior. Although modifying DNS responses for profit seems intuitively "fraudulent", the Computer Fraud and Abuse Act (18 USC 1030 et seq) speaks in terms of "access", "authorization" and "damage". It's pretty hard to force this behavior into that framework (are the ISPs nameservers "damaging" the client? "accessing" the client? what's their "authorization") in a way that actually passes the Laugh Test.
NXDOMAIN spoofing/redirection is inexcusable, but "resolver failover on NXDOMAIN" behavior is broken too. Cisco once again proves that it is clueless about the fundamentals of DNS (any of their customers with the GSS product already knows this of course).
Can we agree that the media and political opportunists feed and amplify the revulsion that the vast majority of adults have at the thought of adults having sex with children?
The "think of the children" cynicism is, in my opinion, directed at that feeding and amplification, and the translation of the resulting hysteria into (arguably bad) public policy, not at the base emotional reaction itself.
I didn't bring up genetics; you did. Frankly, I don't think genetics is relevant here, unless you're willing to take this to its logical conclusion, leapfrog over the whole primal-versus-merely-psycho-social-fear distinction, and state for the record that the huge amount of attention given to the "pedophile problem" in public policy is justified because pedophilia causes "weak genes" (the argument you put forward earlier, not necessarily as your own).
If you don't actually believe the "weak genes" argument, then why bring it up? Are you in the habit of giving unproven, illogical arguments and/or irrational fears, as justifications for public policy positions?
We've made peace with this aspect of human nature.
What we haven't made peace with, is the translation of this "primal instinct" into a dramatic skewing of our public-policy priorities.
Also, we're a little bit skeptical of this "primal instinct" argument, since the same sort of thing was trotted out to justify mistreatment of racial minorities, of women, of gays, etc. It's awfully convenient to say "my primal instinct causes me to do X" therefore X should be enshrined in public policy.
Part of the whole reason we form societies in the first place is to rein in our primal instincts for the greater good.
you do realize that some of you sound more hysterical than the "won't somebody think of the children" tired meme you are supposedly skewering, right?
let's put it this way: underneath all of the teenagers emailing each other naked pictures, there actually exists actual pedophiles who actually harm children, and society has every logical and moral reason to do something about them. btw, they are also highly recidivist: you murder once for certain reasons, then you may never murder again, but once a pedophile, always a pedophile
so here's a clue for the whole lot of the slashdot high holy indignation brigade: you figure out a better way to deal with pedophiles. until then, criticizing without proposing a superior alternative means nothing will change. and no, i'm sorry, doing nothing is not a viable alternative
because, believe it or not, there are parents out there who aren't sex-phobic social conservatives who are genuinely and rightfully worried about their children's exposure to actual, real pedophiles who prey on prepubescent kids. yes, you heard it here first (apparently): believe it or not, pedophiles aren't made up bogeymen, pedophiles actually exist, and are actually a danger to children in their communities
you may now say they are few and rare, that exposure to sex with an adult is harmless, etc., etc.
and completely miss the point of my comment
and therefore continue to exist in the same useless hysterical population of people you are supposedly standing against
No, I think you're the one missing the point. As a society, we have a lot of problems to deal with. We rank those problems in terms of seriousness and the long-term consequences of ignoring or not adequately addressing the problem. Given that only a tiny sliver of the population consists of "real pedophiles who prey on prepubescent kids", and only a small percentage of those will actually commit a crime, because of all the protections already in place against murder/kidnapping/rape, and given -- let's be brutally honest here -- that a lot of victims mostly recover, at least to the point of being productive and relatively-happy citizens, where do you think this "problem" falls in the ranking of problems we have to deal with? Pretty damn low, I'd say. Many of our other problems have many more victims, and often those victims never recover. Think terrorist bombs. Think polluted air/water/food, leading to cancer. Think gang violence.
Yet, a hugely-disproportionate amount of time/effort/energy/focus/resources/money is spent on the "pedophile problem" -- each measure more expansive in its scope, and more draconian with respect to its targets -- compared to more pressing issues. Why? Because it's politically productive to do so. That's where the application of "think of the children" meme to anti-pedophilia efforts derives, and the understandable cynicism which it expresses. Not simply because we think the measures often misfire with respect to e.g. teenagers mailing each other nude photos and the like, or because such measures intrude too heavily on the civil rights of those it targets (e.g. Freedom of Association and whatnot). Those are concerns, certainly, but the main point is that the "pedophilia problem" is being treated disproportionately, and other larger problems aren't being addressed properly. It's a matter of priorities.
P.S. Don't you think "underneath" is a bit of a strange choice of preposition, especially given the context of the discussion?
"Arranged at birth" doesn't mean "married from birth". The actual marriage happens much later.
I still maintain that proper Due Process should be observed when incarcerating someone indefinitely, it doesn't matter what you call the procedure or the offense -- it's a significant, open-ended loss of liberty (not to mention wealth, if you are deprived of the means of making a living), and deserves the proper protections and safeguards that have been developed based on Constitutional Law.
I also think that punishments involving long periods of incarceration should automatically raise the state's burden of proof to "beyond reasonable doubt", regardless of what class of crime is being charged, or even if the charge has the "crime" label on it at all.
Now, if you go through all of that, cross all of the t's, dot all of the i's, and the defendant is found to be wilfully disobeying a valid court order, as may be the case here (based on some of the comments I'm reading), then sure, let him rot in jail. And I don't even have a problem with the jail term being open-ended, since -- as they say -- the defendant "carries the key to the jail cell in his own pocket", i.e. he can end his "sentence" at any time by complying with the court order. If, at any time, however, it becomes literally impossible to comply with the court order, e.g. the person to whom one owes money dies without any heirs (IANAL, is the debt erased in this case?), then I would say the contempt status evaporates and the defendant should be released.
"But what if an 80-year-old wants to marry a 10-year-old girl?" Then he's committing statutory rape. We don't need separate laws.
Well, conjugal relations weren't something you mentioned previously as a necessary element of marriage, so theoretically, an 80-year-old and 10-year-old could enter into a platonic marriage without breaking any laws. But, I highly doubt that any religion would sanction such a union, and that only leaves "personal commitment" , which is questionable, at best, with respect to the relationship between individuals of such disparate ages.
Though courts have inherent power through civil contempt to enforce compliance with their lawful orders, the justification for coercive imprisonment as applied to such contempt depends upon the contemnor's ability to comply with the court's order.
. That's from Shillitani v. United States, 384 U.S. 364 (1966).
this would make a complete mockery of the protections that the Framers intended.
AFAIK Contempt is a common law principle you inherited from us here in the UK. Your framers would have been quite aware of it.
Oh, I'm sure they were aware of it. But, you know, part of the reason we went through the whole American Revolution thing (did you hear about that? it was in all the papers), wrote and ratified a Constitution, a Bill of Rights, etc. was to establish greater personal freedoms and liberties than the English legal system permitted at the time.
Or, translated even more loosely, "fantasy themed" ("magical beasts" being more descriptive of that setting than, say, a sci-fi setting, an Old West setting, a Victorian London setting, or any other popular settings in which MMORPGs have been placed).
No, fundamentally anything that results in prolonged incarceration by the legal system must go through an orderly legal process, with appropriate checks and balances, whether you pin the "crime" label on it or not. If the constitutional requirement of "Due Process of Law" can be negated simply by affixing a label other than "crime" to a particular legal process, then this would make a complete mockery of the protections that the Framers intended.
Law, and the practioners thereof, are supposed to look at the substance of things, not merely at labels or forms. Incarcerating someone for months or years, or indefinitely, is, in substance, a constitutionally-significant outcome, and constitutional protections must not be evadable simply by playing label games. You can call the procedure "fred" if you want, but Due Process of Law must be observed.
Didn't the "enemy combatant" failed experiment teach us anything? Don't play silly label games with indefinite incarceration. Any judges of integrity will see through that deception, sooner or later. In this case it was "later"; it took 14 years for the injustice to be corrected. Hopefully this has set a precedent which will allow the vindication of other victims of judicial abuse in a much more timely fashion.
Judges make decisions of law, juries make decisions of fact. If the judge thought this guy was lying about his financial situation, that's a decision of fact, and it's not his place to make it unilaterally, at least not in a way that results in the defendant's loss of liberty for 14 years.
I have no fundamental problem, conceptually, with the crime of Contempt, but if the penalty is incarceration, then it needs to follow the usual legal process, i.e. effective representation, presenting evidence in accordance with the usual rules of evidence, presenting testimony in accordance with those respective rules, opportunity for rebuttal, respect for the decisions-of-law/decisions-of-fact distinction, proper instruction/composition/integrity of the jury, etc. Also, the judge presiding over a Contempt trial should not be the same judge against whom the Contempt was allegedly perpetrated. That's such an obvious, flagrant conflict of interest it shouldn't even be considered as an option.
It's just Sarah "Bailin'" Palin's brain cells, trying to evolve on their own to the point that she can form a coherent sentence or political strategy.
Do keep in mind that the legal definition is really, past all the smoke and mirrors, whatever the judge personally finds distasteful. Deciding what the population doesn't need or want to view for them has no place in a free society.
Then of course, we're not a free society.
The law often makes up legal principles (usually giving them Latin names to try to make them seem magical and justified) to override other legal principles. Obscenity is a great way to override freedom of speech by taking speech, labeling it "obscenity," and then claiming that it's "not really speech." A problem with the constitution colliding with the rights of minors and school? No problem! "En loco parentis," is right up your alley (whether you agree with the concept or not).
Mmmmm... pretty bad example there. You imply that In loco parentis (note spelling) was made up by the U.S. Federal Courts, but actually the concept has a long pedigree, back to English Common Law. The only thing "new" about it is that the concept has been applied to primary and secondary educational settings to set tighter limits than usual on Free Speech "free expression". Frankly, even though I consider myself somewhat of a First Amendment advocate, I don't have a problem with this general doctrine. The purpose of these educational settings is, after all, to educate, not just to be a open forum for "free expression". Until they are educated, children and teens aren't really capable, in constitutional terms, of proper "free expression", and any claims of same are almost certainly just rationalizations for acting out or bad behavior. You know it, I know it, when a teenager is caught in disruptive behavior and says they're "freely expressing" himself/herself, 9 times out of 10 it's just a cover for something else. The Constitutional Law doctrine actually has some common sense here. For tertiary education, the doctrine does not apply, since those settings are supposed to be more about a free exchange of ideas.
The "community standards" excuse is, even if it is applied as per the name, is a violation of individual rights which the legal system has been more than happy to sacrifice in the name of a sort of vicious populism. Why community standards in obscenity, and not political opinion? Obscenity, political opinion, all of it is simply how one takes it.
No, there's a big difference. If a political majority can silence or limit the opinions of a political minority, then they can use that to maintain power indefinitely. You can't really say the same about obscenity. Obscenity doesn't, in the constitutional view, give one power over others. Political expression does, by directly influencing how people vote in elections.
A. She's not a murderer, no-one has seriously and plausibly alleged that. Good luck proving that beyond a reasonable doubt.
B. If the price of freedom is that occasionally we have to let evil people go unpunished, then that's a price we as a society have agreed to bear. Does it "improve" the world to let Lori Drew escape criminal prosecution? No. But neither does it "improve" the world to set a precedent effectively criminalizing all violations of website ToS'es, in a blind anger against the actions of one despicable individual. This isn't a case of "world improvement", it's a tragic case of which among multiple options, does the least amount of damage to society in the long term.
Having said that, I think society in general has let Lori Drew know how much we disapprove of her actions, through social condemnation and ostracization, and I also hope that, at least from a financial standpoint, she may be punished severely through a civil lawsuit, Wrongful Death or the like. She's not going to get through this unscathed. Not by a long shot. Any maybe, just maybe, our wise and far-sighted legislators (eyes rolling), might craft some narrowly-tailored legislation to criminalize this sort of behavior, if and when it occurs in the future. But twisting Computer Privacy laws in the way that these prosecutors tried to twist it, was wrongheaded, and precedentially dangerous, and it is a relief that the judge took action to stop the madness.
In light of the dangerous expansion of the CFAA and the serious First Amendment and due process concerns raised by the case, a coalition of public interest organizations and individual Internet law professors today filed an amicus curiae brief in support of Drew's motion to dismiss the indictment. Some of the coalition members include EFF, Public Citizen, Center for Democracy & Technology, Lauren Gelman, Eric Goldman, Mark A. Lemley, and Daniel J. Solove. Phil Malone of the Berkman Cyberlaw Clinic and Jennifer Granick of EFF represent the coalition.
Feel free to indulge your primal "WE MUST PUNISH HER!" emotions, but some of us are ruled by reason and logic and a sense of proportion and caution with regard to the long-term consequences of our actions.
the legal strategy the prosecuters used to try to punish this woman is retarded. i don't know why they just didn't go with some sort of laws pertaining to the psychological abuse of a minor
IANAL, but I suspect those laws have never been applied outside of a parental/custodial/guardianship/in-loco-parentis context. The state prosecutors apparently didn't think much of their chances of prevailing with that approach and perhaps wanted to avoid setting a negative precedent that might limit their prosecutorial options in the future.
The federal prosecutors, on the other hand, thought nothing of establishing a ridiculous precedent that basically amounted to criminalizing any violations of a website's ToS. That's a difference in the mindset between state and federal Law Enforcement
Actually, I don't think anyone proved that she specifically intended Megan to kill herself. She intended severe emotional pain, and may have known of Megan's diagnosed depression, but it may have been difficult to prove, beyond a reasonable doubt, that she combined those things and formed a plan in her mind with Megan's suicide as the goal.
She's already been socially stigmatized, as she should be. All that remains is to remove her worldly possessions through a Wrongful Death suit. Unfortunately, if she's acquitted of all criminal charges against her, that may (IANAL btw) become marginally more difficult to pull off. I'd imagine the Wrongful Death case would need to be established from start to finish, without the benefit of a criminal conviction to lay the groundwork.
("Not I" you mean...)
There has been so much Slashdot coverage of the Lori Drew/Megan Meier so-called "cyberbullying" case over the past several months, I suppose the summary writer simply assumed that these people were "well-known figures" on this site, albeit perhaps slightly less so than Gates/Ballmer/McBride/Obama/Stevens/Thompson/Lessig/Doctorow/Stallman/Torvalds et al....
RTFA. The Commission that came up with this idea had its first meeting on May 26, 2006.
I love the Conservative kneejerk response of "Obama wants to tax us to death!", but it doesn't really stick in this case. Better luck next time
I work for the DoD. There are those of us that work on "black" projects that have covert everything, including travel. It would be absolutely intolerable to have a record of where a car has been, either personal or rental, for an enemy agent to exploit. If there's a meeting of folks hammering out the requirements for a new fighter jet or littoral cruiser, who goes to the meeting, where the meeting was, what time the meeting was, etc. are all way too valuable to be recorded.
No, this idea is a non-starter for National security reasons. We won't even talk about organized crime getting ahold of it in order to track likely kidnap candidates' usual movements.
Translation: we (the government) can't trust ourselves to keep "black project" information secret. But you can trust us to wisely spend billions of dollars for the development of new fighter jets and littoral cruisers
IANAL, but I think maybe the strongest claim here was "false light publicity", which is a well-established tort theory-of-recovery This is sometimes defined as "publicity that invades a person's privacy by a false statement or representation that places the person in a false light that would be highly offensive to a reasonable person." The "false representation" here is that Cynthia Moreno sent a Letter to the Editor, disparaging the whole community -- a very provocative and confrontational act -- which was intended to be seen not only by Internet users (which might very well be a minority of the inhabitants of Coalinga), but by anyone who receives the Coalinga Record, or is shown the Letter to the Editor by any means. In other words, while the content of the Ode is the same regardless, a falsehood is created -- that she deliberately and intentionally used it to provoke and outrage the inhabitants of Coalinga, even the non-Internet-using inhabitants. This was not her doing.
The Superior Court doesn't even consider this line of reasoning, since it declares "Having been published on myspace.com, the Ode was not private". Yet, one of the decisions it cites while coming to that conclusion involved a subtle distinction between "secret" and "private". In that decision (M. G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623), a Little League team photograph, taken on the baseball field, was included in a television broadcast looking into allegations of sexual abuse by Little League coaches. The team members in that photograph sued for invasion of privacy because it was not "public" knowledge that they were members of the team, until the photograph was broadcast. Because of the broadcast, they were viewed as victims, perpetrators, and/or collaborators in sexual abuse, which led to great mental anguish, etc., hence the lawsuit
Yet, how are the situations fundamentally different? Cynthia Moreno's "Ode" was on myspace.com for all of 6 days before she took it down (not before her former High School Principal found it, unfortunately for her and her family). While the Little League team in the other case wasn't permanently located on any particular baseball field, if someone had been shooting random photographs of baseball fields at random places and times, they might have just as easily captured that "team photograph" and it would have been easy to deduce the members of the Little League team from the photographic evidence. Perhaps the judge(s) in this case simply don't understand what a vast wasteland myspace.com is, and how unlikely it is that anyone would find anything of particular interest there, unless they were specifically aiming to find it (as apparently this High School Principal was). Yet again, judges need to get more up to speed with Internet technology and community, in order to render proper decisions in cases that touch on the Internet, even if only indirectly.
I suppose one (relatively weak) argument could be made that posts to myspace.com are indexed automatically so that, for instance, the Ode might have shown up on a Google search for "Coalinga". But there is no discussion of that "indexing" angle in the court opinion, and no factual evidence, that I can see, that the High School Principal found Cynthia's "Ode" through any kind of index or search engine.
I was going to post something similar. Richard Posner isn't just "a U.S. Court of Appeals Judge". He's a law professor, author of several very influential books on various aspects of the law; one of the pre-eminent legal minds of our time. I have to admit, as an amateur legal theorist with a particular penchant for Con Law, I'm a bit of a Posner groupie
He may have it wrong on this copyright issue -- I need to delve further into the facts and circumstances -- but don't doubt that his view on this carries a huge amount of weight in the legal community, up to and including the Supreme Court.