But obviously, if it was obtained illegally then whoever was responsible would also find themselves in the dock, in the courtroom next door.
There are two ways to deal with illegally obtained evidence; that way and the way U.S. courts handle it, which is to exclude it. The U.S. Supreme Court compared the two and decided to go with the latter way. It's about upholding the integrity of the system as a whole.
From Mapp v. Ohio:
There are those who say, as did Justice (then Judge) Cardozo, that under our constitutional exclusionary doctrine "[t]he criminal is to go free because the constable has blundered." People v. Defore, 242 N. Y., at 21, 150 N. E., at 587. In some cases this will undoubtedly be the result. 9 But, as was said in Elkins, "there is another consideration - the imperative of judicial integrity." 364 U.S., at 222 . The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr. Justice Brandeis, dissenting, said in Olmstead v. United States, 277 U.S. 438, 485 (1928): "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. . . . If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."
What would happen, for example, if in the aftermath of a well-publicized murder, someone robbed a house and in the process found a blood-soaked knife and turned it over to the police? Would it then be returned to the owner, no questions asked, on the grounds that under the 4th amendment the robber had no right to search the house and seize the weapon? Or does that apply only to police officers?
It only applies to agents of the government, like police officers.
What happens if a police officer pays someone else to break in?
Inadmissible.
By the way, just having looked at the text of the 4th amendment, "persons, houses, papers, and effects". It seems reasonable to me that 'papers' here should refer to pretty much any communications, including telegraph, phone, email, etc. But I'm not sure that it does? Can you clarify?
This explanation was posted on Autoadmit:
Plaintiffs can't issue a subpoena without the court's permission since discovery hasn't began. That's the whole nature of the motion for expedited discovery.
Makes sense, but still the attorney themselves will still be issuing the subpoena, not the court, which was my admittedly limited point.
Unless there is some sort of local rule or local law I'm not noticing that's not right at all. For parties attorneys can make requests without going to a court. But, for non-parties, which these miscellaneous ISPs would be, they need a subpoena from the court to get the info. If the holders of the info are parties then yes the attorneys could get it by just asking. Assuming the other side doesn't refuse for whatever reason they might have, then a judge would be called in to settle the fight.
Under Federal Rule of Civil Procedure 45 an attorney can sign and issue subpoenas for third parties, as an officer of the court. I know it's the same for my state, and considering most states base their rules to a large extent on the Federal ones, I'm assuming it's the same for most jurisdictions.
They don't have to ask the court to issue a subpoena, the attorney can just issue one themselves. And the link isn't to the motion for expedited discovery, it's to an attorney's declaration in support of that motion.
I wonder if anyone has tried to bring up the notion that the legality of an action should be decided by the majority of the people. Once a P2P site gets to a certain point, doesn't the sheer size of its membership say something about whether or not it should be legal?
Perhaps there should be some kind of requirement for a 'young' specialist advisement team on modern technological issues or something.
I don't know about the UK, but in the US judges are usually empowered to seek expert advice on their own initiative. Obviously, the parties in a lawsuit can introduce expert testimony as well.
You do have a very good point, but at least you can publicize the threat. Of course, when dealing with someone who's already threatening to sue you for defamation, you have a vested interest in being VERY accurate when paraphrasing their letter.
If someone sends me a threatening letter, I should be able to make the threat public in order to get help for myself.
You can, even under this ruling. You just can't post a copy of the letter. Just say "X sent me a ridiculous cease and desist letter, which said [paraphrased letter]."
I respect Public Citizen and I'm glad they're out there fighting the good fight, but I would never rely on their legal judgement alone. I've been in conversations with some of the lawyers there and they were obsessed with finding a way to "prove" that practically any P2P use is "fair use".
What are they, the EFF?
If you get into trouble and your bottom is on the line, make sure you get a lawyer with enough political sense to figure out how everyone thinks about the case.
Every lawyers main goal should be the client. The problem with some of these organizations is they're more concerned with creating precedent than getting the best result for their client.
These guys will be smashed into paste by hordes of the highest paid lawyers on planet Earth first thing Monday morning.
They're hoping that the defendants will simply just pay them a million bucks or so to go away instead of a few million to defend. I think they chose too many targets though, if I were one of the defendants I'd just move to have the lawsuits consolidated into one class action, and then pool resources and have one defense team handle everything. Would be pretty cheap, comparatively.
Before touchscreen voting, our area in Maryland had an optical paper system, which resembled some sort of Star Wars fan video version of R2D2. Why didn't they hold onto these machines, just in case the touchscreen voting devices didn't work out?
And to think a few years ago people were talking about how odd it was to see someone walking down the street talking to themselves with no phone in sight.
Nothing unusual about that to me, even before cell phones. Then again, I'm from NYC so maybe my experiences have been skewed a bit.
On three level 70s and one level 61, I still have trouble breaking 3,000 gold between them. How does one get that much gold together in the first place?
It's called the Wal-Mart strategy; buy it cheap from China.
In chess you don't have to die young to leave a good looking corpse you just have to get out of the spotlight while you're ahead. (Britney Spears take note.)
I think Britney Spears' chess career isn't over by a long shot. Remember that brilliant opening she made in her first game in last year's USCF championship?
In the Name of the King bombed? Even when they appended "A Dungeon Siege tale" to the end of the name? I figured referencing an obscure game that the average moviegoer never heard of would be a surefire marketing strategy.
Americans do something differently than Europeans? Cue the European slashdotters who will find some way to paint this as a moral and intellectual failing on the part of Americans.
Since we made the whole damned ball of wax for our own amusement, and Joe Public decided to tag along for the free porn,
Alright, first of all unless you're one of a very small number of people, you didn't help make the internet. You can't take credit for something that someone else did, chances are before you were born. Secondly ARPAnet/the Internet were created because of Joe Public's tax dollars. Joe Public paid his dues, and the whole ball of wax belongs to him as well.
So, Big Brother, what is so difficult about getting a warrant? Also, I don't want you wasting your time reading people's email. When there is a crime, there is always evidence after the fact. Take said evidence, get a warrant, and abide by the law, like everybody else is supposed to do.
Big Brother isn't reading this, and won't answer you. The real depressing thing about these issues is I see so many people passionately arguing the point on slashdot, but these arguments aren't going to help anything. Everyone's preaching to the choir.
o, I take it that "true geeks" don't place much value in the concepts of "honesty, individualism, no spying, and a real community?"
That isn't conservatism.
What exactly in this person's post do you object to, aside from the fact he stated he was a Republican? Hell, he could have stated he was a member of the Amish and it would have made just as much sense in the context of his other points.
What I was criticizing is his belief that a) the so-called leftist reputation of open source for most people doesn't exist because they don't know what the hell open source even is, let alone associate with any ideology, and b) disabuse him of the notion that here, where people DO know what open source is, most people don't associate it with left-wing ideology like he asserts.
The OP made a post which, to me, seemed to be about how to REMOVE political factors from the argument in order to convince people of a more conservative mindset.
Nuh uh. He was trying to inject more political factors in, in an attempt to counterbalance what he sees as a leftist reputation.
It seems to me that for open source to advance, we need to get past this notion of FOSS as a "liberal" thing. There are plenty of us conservative neo-nazi fascist trying to take over the world Republicans that love Linux and it is incumbent upon us to communicate that using Linux is not an endorsement of Joseph Stalin.
First of all I don't think you realize how few people even know what the term "open source" means, which I think is one of the points of the article. Secondly, yes, we are all fully aware about you conservative types, because you're a very loud minority who has spent the past few years on slashdot and other IT sites trying to convince everyone that true geeks are conservative. Look at what that fruitcake ESR did to the Jargon File, for example.
Slashdot Mirror
There are two ways to deal with illegally obtained evidence; that way and the way U.S. courts handle it, which is to exclude it. The U.S. Supreme Court compared the two and decided to go with the latter way. It's about upholding the integrity of the system as a whole.
From Mapp v. Ohio:
There are those who say, as did Justice (then Judge) Cardozo, that under our constitutional exclusionary doctrine "[t]he criminal is to go free because the constable has blundered." People v. Defore, 242 N. Y., at 21, 150 N. E., at 587. In some cases this will undoubtedly be the result. 9 But, as was said in Elkins, "there is another consideration - the imperative of judicial integrity." 364 U.S., at 222 . The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr. Justice Brandeis, dissenting, said in Olmstead v. United States, 277 U.S. 438, 485 (1928): "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. . . . If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."
What would happen, for example, if in the aftermath of a well-publicized murder, someone robbed a house and in the process found a blood-soaked knife and turned it over to the police? Would it then be returned to the owner, no questions asked, on the grounds that under the 4th amendment the robber had no right to search the house and seize the weapon? Or does that apply only to police officers?
It only applies to agents of the government, like police officers.
What happens if a police officer pays someone else to break in?
Inadmissible.
By the way, just having looked at the text of the 4th amendment, "persons, houses, papers, and effects". It seems reasonable to me that 'papers' here should refer to pretty much any communications, including telegraph, phone, email, etc. But I'm not sure that it does? Can you clarify?
Yes, it applies basically to anything.
This explanation was posted on Autoadmit: Plaintiffs can't issue a subpoena without the court's permission since discovery hasn't began. That's the whole nature of the motion for expedited discovery.
Makes sense, but still the attorney themselves will still be issuing the subpoena, not the court, which was my admittedly limited point.
You forgot to add on "IANAL".
IAAL, actually, so I'd have to add the IAALBNYL.
Unless there is some sort of local rule or local law I'm not noticing that's not right at all. For parties attorneys can make requests without going to a court. But, for non-parties, which these miscellaneous ISPs would be, they need a subpoena from the court to get the info. If the holders of the info are parties then yes the attorneys could get it by just asking. Assuming the other side doesn't refuse for whatever reason they might have, then a judge would be called in to settle the fight.
Under Federal Rule of Civil Procedure 45 an attorney can sign and issue subpoenas for third parties, as an officer of the court. I know it's the same for my state, and considering most states base their rules to a large extent on the Federal ones, I'm assuming it's the same for most jurisdictions.
They don't have to ask the court to issue a subpoena, the attorney can just issue one themselves. And the link isn't to the motion for expedited discovery, it's to an attorney's declaration in support of that motion.
All I know is that if we keep repeatedly predicting it on /., we'll only look like a bunch of retarded penguins. ;^)
Too late by this point.
I wonder if anyone has tried to bring up the notion that the legality of an action should be decided by the majority of the people. Once a P2P site gets to a certain point, doesn't the sheer size of its membership say something about whether or not it should be legal?
No.
Perhaps there should be some kind of requirement for a 'young' specialist advisement team on modern technological issues or something.
I don't know about the UK, but in the US judges are usually empowered to seek expert advice on their own initiative. Obviously, the parties in a lawsuit can introduce expert testimony as well.
You do have a very good point, but at least you can publicize the threat. Of course, when dealing with someone who's already threatening to sue you for defamation, you have a vested interest in being VERY accurate when paraphrasing their letter.
If someone sends me a threatening letter, I should be able to make the threat public in order to get help for myself.
You can, even under this ruling. You just can't post a copy of the letter. Just say "X sent me a ridiculous cease and desist letter, which said [paraphrased letter]."
I respect Public Citizen and I'm glad they're out there fighting the good fight, but I would never rely on their legal judgement alone. I've been in conversations with some of the lawyers there and they were obsessed with finding a way to "prove" that practically any P2P use is "fair use".
What are they, the EFF?
If you get into trouble and your bottom is on the line, make sure you get a lawyer with enough political sense to figure out how everyone thinks about the case.
Every lawyers main goal should be the client. The problem with some of these organizations is they're more concerned with creating precedent than getting the best result for their client.
These guys will be smashed into paste by hordes of the highest paid lawyers on planet Earth first thing Monday morning.
They're hoping that the defendants will simply just pay them a million bucks or so to go away instead of a few million to defend. I think they chose too many targets though, if I were one of the defendants I'd just move to have the lawsuits consolidated into one class action, and then pool resources and have one defense team handle everything. Would be pretty cheap, comparatively.
Before touchscreen voting, our area in Maryland had an optical paper system, which resembled some sort of Star Wars fan video version of R2D2. Why didn't they hold onto these machines, just in case the touchscreen voting devices didn't work out?
I think they tried, but the Jawas stole them.
And to think a few years ago people were talking about how odd it was to see someone walking down the street talking to themselves with no phone in sight.
Nothing unusual about that to me, even before cell phones. Then again, I'm from NYC so maybe my experiences have been skewed a bit.
On three level 70s and one level 61, I still have trouble breaking 3,000 gold between them. How does one get that much gold together in the first place?
It's called the Wal-Mart strategy; buy it cheap from China.
In chess you don't have to die young to leave a good looking corpse you just have to get out of the spotlight while you're ahead. (Britney Spears take note.)
I think Britney Spears' chess career isn't over by a long shot. Remember that brilliant opening she made in her first game in last year's USCF championship?
In the Name of the King bombed? Even when they appended "A Dungeon Siege tale" to the end of the name? I figured referencing an obscure game that the average moviegoer never heard of would be a surefire marketing strategy.
Forgive me for sounding American, But that sounds like a stupid law to me...
And lord knows we know stupid laws...
Americans do something differently than Europeans? Cue the European slashdotters who will find some way to paint this as a moral and intellectual failing on the part of Americans.
Since we made the whole damned ball of wax for our own amusement, and Joe Public decided to tag along for the free porn,
Alright, first of all unless you're one of a very small number of people, you didn't help make the internet. You can't take credit for something that someone else did, chances are before you were born. Secondly ARPAnet/the Internet were created because of Joe Public's tax dollars. Joe Public paid his dues, and the whole ball of wax belongs to him as well.
Wouldn't it be IANASL? I think of the lawyers who read/post here, a very very small minority are licensed to practice in Sweden.
TI994A!
So, Big Brother, what is so difficult about getting a warrant? Also, I don't want you wasting your time reading people's email. When there is a crime, there is always evidence after the fact. Take said evidence, get a warrant, and abide by the law, like everybody else is supposed to do.
Big Brother isn't reading this, and won't answer you. The real depressing thing about these issues is I see so many people passionately arguing the point on slashdot, but these arguments aren't going to help anything. Everyone's preaching to the choir.
o, I take it that "true geeks" don't place much value in the concepts of "honesty, individualism, no spying, and a real community?"
That isn't conservatism.
What exactly in this person's post do you object to, aside from the fact he stated he was a Republican? Hell, he could have stated he was a member of the Amish and it would have made just as much sense in the context of his other points.
What I was criticizing is his belief that a) the so-called leftist reputation of open source for most people doesn't exist because they don't know what the hell open source even is, let alone associate with any ideology, and b) disabuse him of the notion that here, where people DO know what open source is, most people don't associate it with left-wing ideology like he asserts.
The OP made a post which, to me, seemed to be about how to REMOVE political factors from the argument in order to convince people of a more conservative mindset.
Nuh uh. He was trying to inject more political factors in, in an attempt to counterbalance what he sees as a leftist reputation.
It seems to me that for open source to advance, we need to get past this notion of FOSS as a "liberal" thing. There are plenty of us conservative neo-nazi fascist trying to take over the world Republicans that love Linux and it is incumbent upon us to communicate that using Linux is not an endorsement of Joseph Stalin.
First of all I don't think you realize how few people even know what the term "open source" means, which I think is one of the points of the article. Secondly, yes, we are all fully aware about you conservative types, because you're a very loud minority who has spent the past few years on slashdot and other IT sites trying to convince everyone that true geeks are conservative. Look at what that fruitcake ESR did to the Jargon File, for example.