This document is still technically a part of the United States Code,
No, the Articles of Confederation are not part of the US Code. They were superseded by the current US Constitution. They are not law in any way shape or form, except perhaps as an occasional interpretive guide to the current constitution when in court cases we try to compare it to the current document to argue that the new language means something different.
Repeat: The Articles of Confederation are not part of the US Code.
(But what would I know? I'm just a law prof who has taught constitutional law...)
Democracy 21 has the correct facts. Bloggers are fine, unless they are paid astroturf shills:
Q. Who is covered and who is exempted from the ''Astroturf'' disclosure provision?
A. The ''Astroturf'' disclosure provisions would require professional ''Astroturf'' lobbying firms to register and report the amounts they receive to conduct ''Astroturf'' lobbying campaigns, and would also require lobbying organizations already registered under the law to report the aggregate amount they spend on ''Astroturf'' lobbying efforts, if the amount spent is significant -- more than $25,000 per quarter.
The disclosure provision would not apply to any individual or organization that is not otherwise required to register and report as a lobbyist or lobbying organization, other than currently unregistered professional ''Astroturf'' lobbying firms.
The provision also would not require registered lobbying organizations to report any of the money they spend to communicate with their own members urging them to lobby Congress (traditional grassroots lobbying campaigns).
Instead, the disclosure provision would only apply to money spent by professional ''Astroturf'' lobbying firms and registered lobbying organizations on paid media and other public communication campaigns to urge the gene l public to lobby Congress on legislation. (professional ''Astroturf'' lobbying campaigns).
The Communications Decency Act, sec. 230(c)(1) says,
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
And, in sect. 230 (f)(3),
"The term ''information content provider'' means any person or
entity that is responsible, in whole or in part, for the creation
or development of information provided through the Internet or
any other interactive computer service.
Why a blog with comments would be treated differently from, say, a BBS or a chat room escapes me. And I teach this stuff for a living. So much for the defamation claims.
The trade secret claim is a little harder. It's probably the case that Congress didn't have trade secrets in mind when it wrote sec. 230. On the other hand, if you read the full text of sec. 230 you will see that Congress intended fairly broad protection; in sec. 230(f)(3) it certainly wrote in very broad terms. In law there are few certainties until after a court rules, but I think the balance here points towards a finding of non-liability both on CDA grounds and traditional trade secret grounds (where innocent receivers of information, and especially journalists who receive information, are not usually liable).
The most important conclusion in the report is that it lays to rest, once and for all, any lingering technical controversies about the addition of new top-level domains.
The Committee did not find any purely technical reasons that the root name servers could not provide the same level of response with a much larger root zone file. Indeed, the ability of the.com name servers to respond to billions of queries a day against the.com zone file, with over 20 million entries, is a demonstration of the technical capacity that could be applied to the root zone, if necessary.
The only technical arguments put forward against new TLDs suggested that it was necessary to limit the rate of addition. The committee agreed that the acceptable rate is tens of TLDs - which means anywhere from 20 to 90 per period. The committee thus arrived at the following conclusion:
Considering technical and operational performance alone, the addition of tens of gTLDs per year for several years would pose minimal risk to the stability of the root.
Old hands in the DNS wars will immediately be reminded of two pieces of ancient history: First, that Jon Postel himself proposed adding 50 new TLDs per year to the root. Second, that in all the years of its operation, ICANN - - which claims to be a technical coordination body (when that suits it) - - and which is single-handedly responsible for the current artificial cap on new TLDs never once dared commission a study of what would be technologically safe...perhaps because it feared the answer.
So if nothing can travel faster than the speed of light, and the universe is supposed to be 7-15 billion years old (depending on who you ask), how ca n it be 70 billion light years across?
I'm afraid that you are wrong as a matter of law: If you are denied due process rights at an Army art. 15 hearing -- e.g. ordered to incriminate yourself -- you have a federal case, and you'll win. What you don't understand is that the "process that is due" is much reduced in the military; which is probably as it should be. Nevertheless, it remains that case that the constitution applies at all times; it just happens that in the circumstances you mention the Constitution doesn't do much for you in a routine case; indeed you may not even have a right to go to court at all to correct routine error. In part this is because the courts have held that art. 15 punishements are "administrative" and not "criminal" in nature. Middendorf v. Henry, 425 U.S. at 31; Dumas v. U. S. 620 F.2d 247 (Ct.Cl. 1980).
What the Constitution does is protect you against non-routine mistreatment: For example, suppose your CO orders you to convert to {fill in religion}, or penalizes you extra for a failure to pray. That's a First Amendment violation, and would be illegal even if military regulations permitted it (I'm sure they don't). Have a look at Weiss v. U.S.. The theory (right or wrong) is that if you wanted the additional constituitional protections that attach even to criminal prosecutions in military trials, you should have exercised your right to reject the art. 15 and demand a full court martial [a right that AFAIK exists for all military personnel except those serving on board ships at sea]. Yes, I understand that in practice the punishments get worse if you are seen to be wasting more people's time.
As for the defendant's perception that all he has left to bargain for is the level of punishment, this isn't actually so different from the civilian system: prosecutors have so many more things they might do than they have time for, they tend to charge the ones they think are most guilty or serious. Unless you have something exculpatory the police missed, you're reduced to plea bargaining: which is just another form of "trying to minimize the punishment you get for whatever you were accused of, guilty or not."
Note, however, that if you are caught red-handed it's ok to punish you more for failing to confess. That's done in the civilian courts (both by higher charges, since you didn't plea bargain, and by higher sentencing for 'failure to take responsibility'). I don't necessarily agree with that, but that's the law, and I can't see why it couldn't be done in the military.
Now you are going to tell me that any idiot who thinks he can win such a federal case and have a military career afterwards has no sense. That's probably true, but that goes to the tendency of all organizations to retaliate against whistle-blowers, not what the rules say.
Here's a (farily) simple rule: The US Constitution applies to everything the US government does, not just court cases. It applies to all three branches of government including the executive (which includes the military). But "due process" is not a one size fits all standard. Rather, it's the start of an inquiry, 'What process is due under these circumstances?'
sayth the poster: Soldiers fall under the UCMJ not the Constitution when it comes to legal rights.
Not so. The UCMJ is subject to the Constituition, including the bill of rights. Rostker v. Goldberg, 453 U.S. 57 (1981); Middendorf v. Henry, 425 U.S. 25 (1976). "[M]en and women in the Armed Forces do not leave constitutional safeguards and judicial protection behind when they enter military service." Weiss v. U.S. 510 U.S. 163, 194 (1994) (Justice Ginsburg, concurring). Indeed, many appeals from military courts on constitutional questions have been heard by the Supreme Court.
Rather, the UCMJ arises from the Constitution giving Congress the power to define a military code of justice, U.S. Const. Art. I 8, cl. 14, which it has done. Congress chose to exempt the military from civilian rules of procedure and evidence but NOT basic Constitutional requirements of due process, right against forced self-incrimination etc. Indeed, as those rights are based in the Constitution, Congress lacks the power to write a UCMJ violating those rights.
Alas, the strong trend today is to find contracts of adhesion enforceable, at least if the market in which the contract is presented can be said to be a competitive one (on the theory that even if you can't really bargain for the terms, you can go elsewhere; and if everyone has the same terms they must be efficient. Or at least so Judge Easterbrook tells us...)
-Michael Froomkin
U.Miami School of Law
It's true that "Used in commerce" may not mean the same as "commercial". Here, however, you need to read all the way to the end of the sentence. On your way there, you will find phrases like "in connection with the sale, offering for sale, distribution, or advertising of any goods or services" which surely do mean "commercial" in the context of prohibited uses. Not to mention the pile of case law reading it that way.
None of this has anything else to do with other statutes, or the relationship between federal and state drug laws... or anything else you may be smoking, drinking, or ingesting while posting.
P.S. I teach this stuff. But you can have the last word - I'm done with this thread.
--Michael Froomkin
Professor of Law
University of Miami School of Law
Amazing analysis. Have you looked at the trademark infringement statute? No? I didn't think so. Here's a link for you. Note, in the definition of infringement (not just dilution), the commercial activities requirement in section (1)(a):
Any person who shall, without the consent of the registrant -
(a)
use
in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or
(b)
reproduce, counterfeit, copy, or colorably imitate a registered mark and apply such reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive,
shall be liable in a civil action by the registrant for the remedies hereinafter provided.
For extra credit, explain how Congress could have passed the rule you allege it passed without running into serious First Amendment problems (TM law, after all, comes from the Commerce Clause, and not from the Copyright clause).
If your site is *totally* non-commercial, almost none of the trademark laws in the US apply to you. The major exception is "tarnishment," which these days means associating the mark with kiddie pr0n or the like. With that exception, trademark laws protect marks from **COMMERCIAL** confusion, not from criticism or parody.
The NYT article is in error, I believe, when it quotes a lawyer as saying the use of the school's colors is relevant to the outcome of this case. It is not. What is relevant is whether the use is commercial or non-commercial. The test for "commercial" is perhaps more hair-trigger than it ought to be: some cases have found asking for donations, selling a t-shirt, or running banner ads to be 'commercial' although it's unlikely we'd treat at least the donations as 'commercial' activity in any other context.
Much more info available at ICANNWatch.org
on
Who To Oversee Internet?
·
· Score: 4, Informative
Oh I [the submitter] read it. Did you? Lynn wants a structure with minimal public input into the decision process -- the Board. All public input will be at the 3rd level (2nd level reserved for pay-to-play groups). And ICANN wants the two things that currently act as a brake on it removed: the independence of the root server operators (read all the way to the end to find this) and the contractual power of the US government.
I'll have a more detailed analysis up at ICANNWatch in a day or so.
The Internet relies on an underlying centralized hierarchy built into the domain name system (DNS) to control the routing for the vast majority of Internet traffic. At its heart is a single data file, known as the "root." Control of the root provides singular power in cyberspace.
This Article first describes how the United States government found itself in control of the root. It then describes how, in an attempt to meet concerns that the United States could so dominate an Internet chokepoint, the U.S. Department of Commerce (DoC) summoned into being the Internet Corporation for Assigned Names and Numbers (ICANN), a formally private nonprofit California corporation. DoC then signed contracts with ICANN in order to clothe it with most of the U.S. government's power over the DNS, and convinced other parties to recognize ICANN's authority. ICANN then took regulatory actions that the U.S. Department of Commerce was unable or unwilling to make itself, including the imposition on all registrants of Internet addresses of an idiosyncratic set of arbitration rules and procedures that benefit third-party trademark holders.
Professor Froomkin then argues that the use of ICANN to regulate in the stead of an executive agency violates fundamental values and policies designed to ensure democratic control over the use of government power, and sets a precedent that risks being expanded into other regulatory activities. He argues that DoC's use of ICANN to make rules either violates the APA's requirement for notice and comment in rulemaking and judicial review, or it violates the Constitution's nondelegation doctrine. Professor Froomkin reviews possible alternatives to ICANN, and ultimately proposes a decentralized structure in which the namespace of the DNS is spread out over a transnational group of "policy partners" with DoC.
I've written a paper ("ICANN's "Uniform Dispute Resolution Policy"- Causes and (Partial) Cures") that discusses the history of the UDPR and some possible improvements. I'm afraid there's only a.pdf version at present, however.
I also want to plug ICANNWatch as a place to go for discussion of all ICANN-related issues, including domain name arbitrations.
Meanwhile, we have a brief even more recent update at ICANNWatch: the Dept. of Commerce reiterates that the RFQ on.us will close this Friday at 5pm eastern. Take that, Senators!
There's also a story over at The Boston Globe but it doesn't add much if you've been following along.
The full text is online in.pdf at the U.S. District Court for the Southern District of NY.
While this is certainly an anti-"web wrap" decision, it's important to understand that the court gets there in part by suggesting that "clickwrap" is OK, then contrasting webwrap unfavorably with clickwrap.
A.Michael Froomkin
Professor, University of Miami School of Law
Coral Gables, FL, USA
For two legal views on ICANN's Legitimacy, see
Jonathan Weinberg, ICANN and the Problem of Legitimacy (.pdf), and my (long) article, Wrong Turn in Cyberspace: Using ICANN to Route
Around the APA and the Constitution, available in HTML or.pdf formats.
They claim that public archives introduce errors into the articles, making them unreliable!
If this is a real issue, the solution is for the journal to either digitally sign the archives, or publish a hash of the online version(s) in the paper copy. Anyone concerned that the online version has been changed since the publication date can checksum for themselves.
We ran this one, plus some commentary, at http://www.icannwatch.org/article.php?sid=102 about 24 hours ago. If you are interested in ICANN and the DNS, you may want to know that the site is now updated daily, sometimes more often, and has a slashdot-like interface (PHP nuke). We do have a very slightly more restrictive posting policy than slashdot, but it is explained in our FAQ.
Ongoing coverage of ICANN issues in a Slashdot-like format can be found at ICANNWatch.org. In addition to today's coverage, note the interesting letters from Senator Burns to the Dept. of Commerce and to the GAO.
Slashdot Mirror
This document is still technically a part of the United States Code,
No, the Articles of Confederation are not part of the US Code. They were superseded by the current US Constitution. They are not law in any way shape or form, except perhaps as an occasional interpretive guide to the current constitution when in court cases we try to compare it to the current document to argue that the new language means something different.
Repeat: The Articles of Confederation are not part of the US Code.
(But what would I know? I'm just a law prof who has taught constitutional law...)
Democracy 21 has the correct facts. Bloggers are fine, unless they are paid astroturf shills:
The Communications Decency Act, sec. 230(c)(1) says,
And, in sect. 230 (f)(3),Why a blog with comments would be treated differently from, say, a BBS or a chat room escapes me. And I teach this stuff for a living. So much for the defamation claims.The trade secret claim is a little harder. It's probably the case that Congress didn't have trade secrets in mind when it wrote sec. 230. On the other hand, if you read the full text of sec. 230 you will see that Congress intended fairly broad protection; in sec. 230(f)(3) it certainly wrote in very broad terms. In law there are few certainties until after a court rules, but I think the balance here points towards a finding of non-liability both on CDA grounds and traditional trade secret grounds (where innocent receivers of information, and especially journalists who receive information, are not usually liable).
It begins:
The most important conclusion in the report is that it lays to rest, once and for all, any lingering technical controversies about the addition of new top-level domains. The only technical arguments put forward against new TLDs suggested that it was necessary to limit the rate of addition. The committee agreed that the acceptable rate is tens of TLDs - which means anywhere from 20 to 90 per period. The committee thus arrived at the following conclusion: Old hands in the DNS wars will immediately be reminded of two pieces of ancient history: First, that Jon Postel himself proposed adding 50 new TLDs per year to the root. Second, that in all the years of its operation, ICANN - - which claims to be a technical coordination body (when that suits it) - - and which is single-handedly responsible for the current artificial cap on new TLDs never once dared commission a study of what would be technologically safe...perhaps because it feared the answer.
No that was me, Froomkin, not Andy. Andy applied to continue but was rejected.
What the Constitution does is protect you against non-routine mistreatment: For example, suppose your CO orders you to convert to {fill in religion}, or penalizes you extra for a failure to pray. That's a First Amendment violation, and would be illegal even if military regulations permitted it (I'm sure they don't). Have a look at Weiss v. U.S.. The theory (right or wrong) is that if you wanted the additional constituitional protections that attach even to criminal prosecutions in military trials, you should have exercised your right to reject the art. 15 and demand a full court martial [a right that AFAIK exists for all military personnel except those serving on board ships at sea]. Yes, I understand that in practice the punishments get worse if you are seen to be wasting more people's time.
As for the defendant's perception that all he has left to bargain for is the level of punishment, this isn't actually so different from the civilian system: prosecutors have so many more things they might do than they have time for, they tend to charge the ones they think are most guilty or serious. Unless you have something exculpatory the police missed, you're reduced to plea bargaining: which is just another form of "trying to minimize the punishment you get for whatever you were accused of, guilty or not."
Note, however, that if you are caught red-handed it's ok to punish you more for failing to confess. That's done in the civilian courts (both by higher charges, since you didn't plea bargain, and by higher sentencing for 'failure to take responsibility'). I don't necessarily agree with that, but that's the law, and I can't see why it couldn't be done in the military.
Now you are going to tell me that any idiot who thinks he can win such a federal case and have a military career afterwards has no sense. That's probably true, but that goes to the tendency of all organizations to retaliate against whistle-blowers, not what the rules say.
Here's a (farily) simple rule: The US Constitution applies to everything the US government does, not just court cases. It applies to all three branches of government including the executive (which includes the military). But "due process" is not a one size fits all standard. Rather, it's the start of an inquiry, 'What process is due under these circumstances?'
PS. I'm not a veteran. I'm a law professor.
Soldiers fall under the UCMJ not the Constitution when it comes to legal rights.
Not so. The UCMJ is subject to the Constituition, including the bill of rights. Rostker v. Goldberg, 453 U.S. 57 (1981); Middendorf v. Henry, 425 U.S. 25 (1976). "[M]en and women in the Armed Forces do not leave constitutional safeguards and judicial protection behind when they enter military service." Weiss v. U.S. 510 U.S. 163, 194 (1994) (Justice Ginsburg, concurring). Indeed, many appeals from military courts on constitutional questions have been heard by the Supreme Court.
Rather, the UCMJ arises from the Constitution giving Congress the power to define a military code of justice, U.S. Const. Art. I 8, cl. 14, which it has done. Congress chose to exempt the military from civilian rules of procedure and evidence but NOT basic Constitutional requirements of due process, right against forced self-incrimination etc. Indeed, as those rights are based in the Constitution, Congress lacks the power to write a UCMJ violating those rights.
Alas, the strong trend today is to find contracts of adhesion enforceable, at least if the market in which the contract is presented can be said to be a competitive one (on the theory that even if you can't really bargain for the terms, you can go elsewhere; and if everyone has the same terms they must be efficient. Or at least so Judge Easterbrook tells us...) -Michael Froomkin U.Miami School of Law
Or you can browse the whole ICANNWatch .org archive.
None of this has anything else to do with other statutes, or the relationship between federal and state drug laws ... or anything else you may be smoking, drinking, or ingesting while posting.
P.S. I teach this stuff. But you can have the last word - I'm done with this thread.
--Michael Froomkin
Professor of Law
University of Miami School of Law
For extra credit, explain how Congress could have passed the rule you allege it passed without running into serious First Amendment problems (TM law, after all, comes from the Commerce Clause, and not from the Copyright clause).
The NYT article is in error, I believe, when it quotes a lawyer as saying the use of the school's colors is relevant to the outcome of this case. It is not. What is relevant is whether the use is commercial or non-commercial. The test for "commercial" is perhaps more hair-trigger than it ought to be: some cases have found asking for donations, selling a t-shirt, or running banner ads to be 'commercial' although it's unlikely we'd treat at least the donations as 'commercial' activity in any other context.
Also keep an eye on the ICANN Blog.
I'll have a more detailed analysis up at ICANNWatch in a day or so.
Here is the abstract:
I also want to plug ICANNWatch as a place to go for discussion of all ICANN-related issues, including domain name arbitrations.
It will be interesting to see if any australians challenge this action by filing an ICANN reconsideration request during the next
There's also a story over at The Boston Globe but it doesn't add much if you've been following along.
While this is certainly an anti-"web wrap" decision, it's important to understand that the court gets there in part by suggesting that "clickwrap" is OK, then contrasting webwrap unfavorably with clickwrap.
A.Michael Froomkin
Professor, University of Miami School of Law
Coral Gables, FL, USA
For two legal views on ICANN's Legitimacy, see Jonathan Weinberg, ICANN and the Problem of Legitimacy (.pdf), and my (long) article, Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution , available in HTML or .pdf formats.
Also, Bert-Jaap Koops's Crypto Law Survey.
Since then, we've run stories on
Ongoing coverage of ICANN issues in a Slashdot-like format can be found at ICANNWatch.org. In addition to today's coverage, note the interesting letters from Senator Burns to the Dept. of Commerce and to the GAO.