I am 100% convinced that cats hate humans. I am certain that if my cat was scaled up to large dog size I would be eaten within 24 hours. No.. cuz then it would be a Dog. Dogs like the people they live with.
Given the rapid rate of technological change, is there a more practical way to interface emergent technology with our legal system while retaining civil rights over corporate rights?" File more suits, refuse more settlements, roll out appeals.
The courts are informed by precedence more than experts. Experts will alert a single judge -- who will be limited by his understanding of the material, the talent for communication in the expert, and the persuasive abilities of a the lawyers before the court. Judges prefer case law - nice simple black and white text that tells them what to do. Building case law takes appellate decisions. So... we have to take it on the chin and eat more appeals to establish the cyber-equivalents of our material rights.
WIthin the current structure of the system -- there really isn't a better way.
Yeah, I get that. My point was, simply: does increased availability result in increased production? It seems to me that there's X number of people in the world producing kiddie porn for Y number of people. If Y doubles, does X double? If X does double, then you have more children being molested for profit. As the War on Drugs has shown, going after the consumers of the product does not lessen its consumption. I would argue that the damage being done to the children is greater than the harm being done to "society" by more pedophiles viewing kiddie porn. There is a certain percentage that can be pacified by passively viewing the porn and won't necessarily escalate to actual molestation, just as there's a certain percentage of people that will watch regular porn and escalate to rape. The overwhelming majority, media claims to the contrary, will just continue to watch the porn.
I'm sorry.. I failed to make that point clearly.
What I meant is not only that the number of Y might double, but as the number of Y double, the field of persons who are more likely to act on their pedophiliac emotions increases.
I should mention that this is a dangerous slippery slope. It explains the rise of many "aberrant" sexualities (fetishim, etc) and it has been used to explain the rise in homosexuality -- though I personally feel that the evidence of significantly altered body chemistry has more to do with it than a learned behavior (born, not learned). That is mainly a political rather than evidence based decision on my part.
The problem is connecting the increased availability of an illicit substance with the increased prevalence of an illicit act. Because both are illegal, actual numbers of consumers and actors are unavailable. We can hold opinions on the rise or fall in pediophillac actors, but the records just aren't real (I'm not concerned with those who observe child porn, I agree with you that the producers cause the harm, but those who molest or abuse children do even more harm).
So the balance to be struck is between freedom to act in anonymity, and a possibility of harm to children. The right to privacy has different levels of protection within the home, within your car, within your workplace, in public, etc. Internet access here-to-fore has been dealt with as representative of each of those activities, ad hoc solutions provided by the courts, which are... less than consistent.
Here's what I suggest - we create a new network that is separate from the fiber up (it need not be re-run, but each node should be declared a member of one network or the other) to play on the 2nd network you must submit to public scrutiny. It would be legally classified as the public square - banks could go there, government institutions, stores, political blogs, etc - could play on this secured network. I'm not enough of an engineer to suggest specific methods of security, but vastly limiting the types of traffic and requiring a certification to run a site on that network spring to mind. Then, pull the trigger, and get the credit cards to pull support from sites which use only the old network.
I focused on money, and not pornography. Why? Because all organized crime is about money. If you're going to take the risk of building a site and filling it with illegal content, you'll want to be paid for that. The lone actors are difficult to track, and probably cannot be stopped, but the agents of collection and distribution are the ones that make the material available. We want to take away their incentive. Also, I think the far more common crime on the internet is credit fraud (sorry, the buzz word is "identity theft"). We want to strip the value out of that as well - remove all the profitable sources of illicit income from the network - discourage the devotion of time and money into anonamyzing sites and tools - strike down the cash motive for writing spoofing tools and other means and methods to hide who you are and move. They won't work where they money is, and they won't make you
So, does the Internet increase the amount of kiddie porn, or the access to it? If it increases the number of kids who are molested on film, I can stand behind trying to invoke extra measures to stop the growth. If, however, it just makes it easier for more pedophiles to view the same images, then the problem isn't the Internet. The problem is the kiddie porn and "fixing" the Internet isn't going to change anything. Of course, the real solution of finding a "cure" for pedophilia would be a better alternative, but that's just me... Some research has suggested that the mere availability of pornography of increases the demand for it, and conditions the brain to seek out similar stimulus. As the need for greater stimulus presents itself this produces an increase in objectionable behavior.
This is evidently a side-effect of the way the amygdala records emotional-stimulus responses. If you look at child porn and have a positive (arousing) experience, you are more likely to be aroused next time you are exposed to similar stimulus (a naked child). This has obvious detrimental effects on society.
They'll need a few more cases to go one way or the other before the court will freeze a plaintiff from trying out his argument against a given defendant.
This is actually pretty stupid. If I set up a stand outside my house with a sign that says "pirated movies: $5" and didn't sell any, I bet someone would still arrest/sue me. Just because I burned copies of it and set up shop doesn't mean I distributed any so nothing can happen to me under that ruling. No.. they would send someone over to BUY from you... THEN arrest or sue your dumb ass into the floor.
The problem here is that I don't have to have the file to have it listed as present in a p2p service.. I don't have to have my tool configured to share.. I just have to be some dumbass that runs software my teenage son installed on my box when he wanted to impresses his girlfriend.
Now.. if you download a song off me... that's a whole different story.
It IS a series of tubes.
If you're trying to explain how the network of interconnected nodes that we call the internet works - a series of tubes is a great straight-forward analogy that damn near everyone can understand. It's an analogy I used to use to explain concepts to grandfathers before that poor sod said it in front of a camera, and it remains true.
Other points aside - the series of tubes mocking should stop.
-GiH
I understand what you mean. There is a desire to strip down the system and make it work for the best result.
For better or for worse, the system is designed to move slowly from side to side, and to alter its motion only when it hits a seriously unconscionable result. (See the Chicago covenant cases.)
Personally, I'd like to see the telecoms lose their limited monopolies and get locked out of the wireless market as a result of their past behavior... but.. they're owned by people with rights too and the court is sympathetic to all comers.
You raise alot of issues that were on my last Civil Rights Law exam:).
The short answer is none of these questions have a clear answer. There are few solid lines in the law when it comes to suing government actors or those who are cooperating with government actors. I'll try to hammer through these with some thoughts on each - please don't read them as statements of a final position, just my thoughts in response to your questions.
(IA still NAL) Actually - I have wondered about this retroactive immunity from the perspective of the 1st amendment "Redress of Grievances" clause.
I am also not a lawyer, just a law student yet.
Congress shall make no law . . . and to petition the Government for a redress of grievances.
noted...
Typically, although Congress has retroactively immunized companies from lawsuits in the past, it has done so while creating an alternative route - i.e., creating a fund to compensate the families of those killed from the WTC while protecting the airlines, and I believe they did something similar to asbestos victims (or maybe that's been considered - not sure).
The first distinction I would make is that those are the results of unauthorized tortious acts by companies against private individuals. Government interaction with the companies granted immunity (grantees) was light, providing on the ground security, etc.
The U.S. Government does not fear granting total immunity under certain conditions - For instance sovereign immunity is regularly declared by the U.S. Navy and the United States against asbestos cases from naval facilities - they made a clear eyed choice to risk the health of sailors over time in order to save their lives at war (fire on ships is bad, asbestos helps stop and control fires) and there is no recourse at law to recover damages from the Navy for that harm. Likewise judges are immune from any tortious recovery stemming from their role as judges, even when they're clearly biased, wrong, and abusing their authority for any purpose, no matter how immoral. As far as the private manufacturers of asbestos go - as far as I know the FAIR act never got passed - so that program of setting up a trust to pay out benefits was never put in place. Similar programs are often set up at the resolution of class action suits - which may be what you're thinking of? I've never studied the history of asbestos cases closely, so it's possible there is a wide gulf I don't know about.
Back to my point though - what is sought here is to classify the cooperative act as a type of gov't action (at least that's what it looks like to me). In the same way that you cannot recover for harm caused to you by a police officer who was acting within a reasonable belief that the act was constitutional (a limited form of immunity for state actors) these telecoms were functioning as quasi-state actors (similar to privately controlled prison complexes). Quasi-governmental actors are usually subject to liability under the theory that they are motivated by a profit motive, whereas government actors are credited with a justice motive - a desire to act within the law (and to avoid termination).
I believe the idea is that since the gov't cannot wiretap without the cooperation of the phone companies - they are owed a special protection.
Historically (according to Jonathan Turley IIRC), they have *not* immunized a company against lawsuit while not allowing some other means of redress. Changing the law does not actually make it constitutional, and if you have a valid constitutional argument on the claim that it wasn't legal, this would be a valid argument that Congress can't keep you from suing.
I think that's muddying the water between revoking the court's jurisdiction (which congress cannot do when a constitutional question is at stake) vs. creating an affirmative defense. I know that when the court analyzes the constitutionality of executive
Passing immunity changes the harmed party from the eavesdropping victims to the carriers. Can the law retroactively redefine the injured party? I certainly hope not.
The difference is that one (creating a criminal act) changes a past state - the act which was not criminal becomes criminal - while creating an immunity invests the accused with an affirmative defense that can be raised now. One has its effect in the past, the other in the present.
The goal of the senate legislation is to insulate companies that cooperated with gov't actors from civil liability for their acts. The goal of the lawsuits (idealist point of view) is to vindicate the rights of the individuals and to discourage future cooperation between the private and public actors in the future. Bear in mind that congress has acted to wrap the specific acts (wiretapping) in legislative protection already - currently wiretaps can be conducted through FISA (warantless for a fixed period of time) or the Protect America Act (warntless for a longer period). Wiretaps conducted under the Protect America Act are valid until 1 year after the expiration of the bill... which was extend 15 days from January 29th - a.k.a. February 14th. Future wiretaps can be added to the list so long as the target can be associated with a known "terrorist group" (as defined by the act).
What the court will see is that congress has created a legitimate method to go about the behavior that is at issue in the civil trials. They will certainly look to the concept of the inherent power of the presidency (famously highlighted in Youngstown Sheet & Tube Co. v Sawyer in which President Truman tried to assert the inherent power to seize military supplies in preparation for Korea. ) The issue is rarely visited, although the acts of Bush 43 will probably lead to the development of a good deal of law here. Essentially - the court looks to the connection between the act and the enumerated powers of the president, and the acts of congress in relation to the questioned act. Where the president is acting in concert with the congress he is at the apex of his power - when acting in a manner opposed to the established law he is at the lowest point of his powers. When Bush's administration called for the wiretaps they were arguably against the FISA act, congress had established a method, Bush thought it was inefficient or insufficient and decided to create a new method under an inherent powers argument. Congress has since blessed the act. Since the congress hasn't explicitly rejected the method by enacting a law - but their silence and refusal to extend the act speaks loudly in its own way.
When it arrives at the supreme court - Bush 43 will probably be out of office. Unless something drastic happens in the meantime a Democrat will have inherited whatever power Bush has invested in the office of the president. It will make an interesting case I'm sure.
What I'm trying to highlight is that the Telcoms had room to reasonably believe that their acts were protected. The court when it evaluates the constitutionality of any congressional immunity will likely look both to the reasonableness of that belief, and whether or not those same acts would be illegal now. Policy wise they're going to want to balance the value of the constitutional right to privacy (an unenumerated right drawn from the protection against unlawful search and seizure) against the harm done by discouraging Telcoms from cooperating with government actors (their silent compliance is an essential element of the FISA law - it they challenged every warrantless wiretap that came from within the Gov't [still legal under FISA] then the secrecy of those wiretaps would be abrogated thus the purpose of FISA would be defeated). If the telecoms know that every warntless wiretap they assist in renders them liable for a court battle - they will be resistant to compliance without exercising eno
I'm not sympathetic to the interests of the phone companies... BUT
If they fear not losses at court but the expense of defending themselves in court - it makes sense to offer them immunity which is a straightforward defense. Any claim that can get past a summary judgement for failure to state a claim, or a jurisdictional challenge will have to go through the process of discovery. In discovery ATT etc, would need to complie and produce whatever relevant information the opposing attorneys request. They can either bear the costs of preparing those materials, or go before the court to challenge that cost - which involves paying teams of attorney to draft a brief and argue it before the court, also not cheap. Now, multiply that by the number of cases.
They can also challenge the opponents right to discovery of certain irrelevant material - but the standard on discovery is loose. If discovery is likely to lead to facts which will make the factual basis for the legal claims at issue more or less believable, then it's okay. That's a very broad standard. And of course, every motion to block discovery means another brief, another day in court, another bill from the lawyers.
Immunity on the other hand will allow them to hand-waive the entire case - no research into the facts, no questions of law outside of the limits of the immunity... a nice neat and tidy battleground that can be briefed once, and used against many cases.
As always - this should not be read as legal advice, merely opinion, your mileage may vary, check with your local lawyer.
Bad companies have a habit of outlasting their usefulness as a target of litigation - and 100 million dollars has a bad habit of attracting quality legal talent.
The best result for Novell was for this legal battle to stop - probably better even than collecting their 20 mil. Given the choice I doubt their (novell's) legal advisors would suggest jumping up to let another court take a swing at getting something wrong.
The more I read the writings of men like Jefferson the more clear it becomes that they were, essentially, only men. Men who did not forsee the weaknesses in the system the constructed, or in the acts the performed. Jefferson, by forming a political party, did more to split the nation in half than Bush ever has or could (short of declaring cesession), Adams tried to institute a religious test to block Jefferson's bid for office, etc.
What they did was undoutably remarkable, but their words are not sacred, and we should take them off the damn altar and put them back on the bookshelf. They need to be read and analyzed, not idolized.
Why do you think we use the electoral college system? In brief - horses and federalism, or rather the lack of sufficient horses to allow a candidate to visit enough of the country for the people living there to make a fair judgement of his worth. The electoral college could ride to washington and meet with the candidates, and then elect the one they felt best.
The last thing they wanted was mob-rule (which is what they considered pure democracy to be). Well.. it might be a close call between mob-rule and insurrection by the slaves that were then legally owned in the north and the south. But hey, the founders always know best.
Where was it that allowed paying members to see the content earlier? Only if they give gold members the chance to play with bugs included in the demo. Then it's an apt comparison.
No, Facebook is NOT public - the default is limited access - which you may ramp up fruther. Unless you are on my friends list all you can see is my name and the picture I choose for my face. If you ARE my friend, you can see all my pictures, my e-mail and phone, my likes, my hates, and the fact that I induldge my brother by commuting zombiecide with him occasionally, and a fairly spotty account of what I've been up to for the last two years.
I am not willing to make that information public - but I want my friends to have it - and Facebook does this.
Call ahead and ask for directions? Sure - why not. Of course you need to be able to hear them, write them down, and hope they're acurate enough to get you there - instead of say - using google maps to bring up a satelite image of your directions so you can spot roads and landmarks. The only reason I have web acess on my verizon account is on-the-go directions. I hate being lost - I love being able to fix that MYSELF without having to get out and ASK. Does anyone enjoy asking for directions? Placing yourself in somebody else's hands - hoping the guy running the gas station is competent enough to know where you're going - yeah - thats better than googlemaps.
That's why I wish I could do the whole Iphone thing - for that matter, screw the phone part, I'll use a flip phone - we need mico-handhelds. With the inclusion of a cell link for internet access, their day has finally come.
As usual, those who are paid to watch what's hapening now can't see what will be hapening then.
What part of "Death to America" do you not understand? It's pretty unambiguous. Good point - find me one instance where President Asshole said that about the U.S. and you might have some gleeming of intellect in there.
Further, in violation of the Nuclear Nonproliferation Treaty (which Iran voluntarily signed), Iran has embarked on an enormous covert nuclear program. Do "secret" programs usually involve brass bands and press conferences? CNN article (April 2006).
Oh wait, I forgot, Trolls don't need facts when bullshit and bluster is available - how very Chenny of you.
And I save the cost of having to upgrade my machine every, what, six months. Yes yes.. very relavent to conversations FROM THE LAST DECADE. Dude.. computers don't change anywhere near as fast as they used to - I can get a machine now for $1000 dollars that will last me through the end of this decade, and probably into 2011.
I assembled my current box from parts of the old with a few upgrades - new proc and mobo, 1.5 gig of ram, and a new video card. I remember looking at this seething pile of power with a wistful sorrow - because I was leaving for a year in Europe a month later, and my box was staying home - and would be useless when I returned. When I got back - my specs were still above the recomended minimums.. fast forward another year - I'm just starting to think I may need more ram and a new graphics card - to stay way above spec.
I'll admit, I don't vigourously pursue the newest graphics card - those come out with trivial upgrades much more often - but the performance growth isn't significant. (IM~HO).
Anyway - the point is the upgrade cycle is the same as a console about 1x every 2.5 years.
Slashdot Mirror
-GiH
The courts are informed by precedence more than experts. Experts will alert a single judge -- who will be limited by his understanding of the material, the talent for communication in the expert, and the persuasive abilities of a the lawyers before the court. Judges prefer case law - nice simple black and white text that tells them what to do. Building case law takes appellate decisions. So... we have to take it on the chin and eat more appeals to establish the cyber-equivalents of our material rights.
WIthin the current structure of the system -- there really isn't a better way.
Yeah, I get that. My point was, simply: does increased availability result in increased production? It seems to me that there's X number of people in the world producing kiddie porn for Y number of people. If Y doubles, does X double? If X does double, then you have more children being molested for profit. As the War on Drugs has shown, going after the consumers of the product does not lessen its consumption. I would argue that the damage being done to the children is greater than the harm being done to "society" by more pedophiles viewing kiddie porn. There is a certain percentage that can be pacified by passively viewing the porn and won't necessarily escalate to actual molestation, just as there's a certain percentage of people that will watch regular porn and escalate to rape. The overwhelming majority, media claims to the contrary, will just continue to watch the porn.
I'm sorry.. I failed to make that point clearly.
What I meant is not only that the number of Y might double, but as the number of Y double, the field of persons who are more likely to act on their pedophiliac emotions increases.
I should mention that this is a dangerous slippery slope. It explains the rise of many "aberrant" sexualities (fetishim, etc) and it has been used to explain the rise in homosexuality -- though I personally feel that the evidence of significantly altered body chemistry has more to do with it than a learned behavior (born, not learned). That is mainly a political rather than evidence based decision on my part.
The problem is connecting the increased availability of an illicit substance with the increased prevalence of an illicit act. Because both are illegal, actual numbers of consumers and actors are unavailable. We can hold opinions on the rise or fall in pediophillac actors, but the records just aren't real (I'm not concerned with those who observe child porn, I agree with you that the producers cause the harm, but those who molest or abuse children do even more harm).
So the balance to be struck is between freedom to act in anonymity, and a possibility of harm to children. The right to privacy has different levels of protection within the home, within your car, within your workplace, in public, etc. Internet access here-to-fore has been dealt with as representative of each of those activities, ad hoc solutions provided by the courts, which are... less than consistent.
Here's what I suggest - we create a new network that is separate from the fiber up (it need not be re-run, but each node should be declared a member of one network or the other) to play on the 2nd network you must submit to public scrutiny. It would be legally classified as the public square - banks could go there, government institutions, stores, political blogs, etc - could play on this secured network. I'm not enough of an engineer to suggest specific methods of security, but vastly limiting the types of traffic and requiring a certification to run a site on that network spring to mind. Then, pull the trigger, and get the credit cards to pull support from sites which use only the old network.
I focused on money, and not pornography. Why? Because all organized crime is about money. If you're going to take the risk of building a site and filling it with illegal content, you'll want to be paid for that. The lone actors are difficult to track, and probably cannot be stopped, but the agents of collection and distribution are the ones that make the material available. We want to take away their incentive. Also, I think the far more common crime on the internet is credit fraud (sorry, the buzz word is "identity theft"). We want to strip the value out of that as well - remove all the profitable sources of illicit income from the network - discourage the devotion of time and money into anonamyzing sites and tools - strike down the cash motive for writing spoofing tools and other means and methods to hide who you are and move. They won't work where they money is, and they won't make you
This is evidently a side-effect of the way the amygdala records emotional-stimulus responses. If you look at child porn and have a positive (arousing) experience, you are more likely to be aroused next time you are exposed to similar stimulus (a naked child). This has obvious detrimental effects on society.
-GiH
Waaay too earlier for that.
They'll need a few more cases to go one way or the other before the court will freeze a plaintiff from trying out his argument against a given defendant.
-GiH
The problem here is that I don't have to have the file to have it listed as present in a p2p service.. I don't have to have my tool configured to share.. I just have to be some dumbass that runs software my teenage son installed on my box when he wanted to impresses his girlfriend.
Now.. if you download a song off me... that's a whole different story.
Which is the whole point here.
-GiH
It IS a series of tubes. If you're trying to explain how the network of interconnected nodes that we call the internet works - a series of tubes is a great straight-forward analogy that damn near everyone can understand. It's an analogy I used to use to explain concepts to grandfathers before that poor sod said it in front of a camera, and it remains true. Other points aside - the series of tubes mocking should stop. -GiH
I understand what you mean. There is a desire to strip down the system and make it work for the best result.
For better or for worse, the system is designed to move slowly from side to side, and to alter its motion only when it hits a seriously unconscionable result. (See the Chicago covenant cases.)
Personally, I'd like to see the telecoms lose their limited monopolies and get locked out of the wireless market as a result of their past behavior... but.. they're owned by people with rights too and the court is sympathetic to all comers.
-GiH
The short answer is none of these questions have a clear answer. There are few solid lines in the law when it comes to suing government actors or those who are cooperating with government actors. I'll try to hammer through these with some thoughts on each - please don't read them as statements of a final position, just my thoughts in response to your questions.
(IA still NAL) Actually - I have wondered about this retroactive immunity from the perspective of the 1st amendment "Redress of Grievances" clause.
I am also not a lawyer, just a law student yet.
noted...
Typically, although Congress has retroactively immunized companies from lawsuits in the past, it has done so while creating an alternative route - i.e., creating a fund to compensate the families of those killed from the WTC while protecting the airlines, and I believe they did something similar to asbestos victims (or maybe that's been considered - not sure).
The first distinction I would make is that those are the results of unauthorized tortious acts by companies against private individuals. Government interaction with the companies granted immunity (grantees) was light, providing on the ground security, etc.
The U.S. Government does not fear granting total immunity under certain conditions - For instance sovereign immunity is regularly declared by the U.S. Navy and the United States against asbestos cases from naval facilities - they made a clear eyed choice to risk the health of sailors over time in order to save their lives at war (fire on ships is bad, asbestos helps stop and control fires) and there is no recourse at law to recover damages from the Navy for that harm. Likewise judges are immune from any tortious recovery stemming from their role as judges, even when they're clearly biased, wrong, and abusing their authority for any purpose, no matter how immoral. As far as the private manufacturers of asbestos go - as far as I know the FAIR act never got passed - so that program of setting up a trust to pay out benefits was never put in place. Similar programs are often set up at the resolution of class action suits - which may be what you're thinking of? I've never studied the history of asbestos cases closely, so it's possible there is a wide gulf I don't know about.
Back to my point though - what is sought here is to classify the cooperative act as a type of gov't action (at least that's what it looks like to me). In the same way that you cannot recover for harm caused to you by a police officer who was acting within a reasonable belief that the act was constitutional (a limited form of immunity for state actors) these telecoms were functioning as quasi-state actors (similar to privately controlled prison complexes). Quasi-governmental actors are usually subject to liability under the theory that they are motivated by a profit motive, whereas government actors are credited with a justice motive - a desire to act within the law (and to avoid termination).
I believe the idea is that since the gov't cannot wiretap without the cooperation of the phone companies - they are owed a special protection.
Historically (according to Jonathan Turley IIRC), they have *not* immunized a company against lawsuit while not allowing some other means of redress. Changing the law does not actually make it constitutional, and if you have a valid constitutional argument on the claim that it wasn't legal, this would be a valid argument that Congress can't keep you from suing.
I think that's muddying the water between revoking the court's jurisdiction (which congress cannot do when a constitutional question is at stake) vs. creating an affirmative defense. I know that when the court analyzes the constitutionality of executive
Passing immunity changes the harmed party from the eavesdropping victims to the carriers. Can the law retroactively redefine the injured party? I certainly hope not.
The difference is that one (creating a criminal act) changes a past state - the act which was not criminal becomes criminal - while creating an immunity invests the accused with an affirmative defense that can be raised now. One has its effect in the past, the other in the present.
... which was extend 15 days from January 29th - a.k.a. February 14th. Future wiretaps can be added to the list so long as the target can be associated with a known "terrorist group" (as defined by the act).
The goal of the senate legislation is to insulate companies that cooperated with gov't actors from civil liability for their acts. The goal of the lawsuits (idealist point of view) is to vindicate the rights of the individuals and to discourage future cooperation between the private and public actors in the future. Bear in mind that congress has acted to wrap the specific acts (wiretapping) in legislative protection already - currently wiretaps can be conducted through FISA (warantless for a fixed period of time) or the Protect America Act (warntless for a longer period). Wiretaps conducted under the Protect America Act are valid until 1 year after the expiration of the bill
What the court will see is that congress has created a legitimate method to go about the behavior that is at issue in the civil trials. They will certainly look to the concept of the inherent power of the presidency (famously highlighted in Youngstown Sheet & Tube Co. v Sawyer in which President Truman tried to assert the inherent power to seize military supplies in preparation for Korea. ) The issue is rarely visited, although the acts of Bush 43 will probably lead to the development of a good deal of law here. Essentially - the court looks to the connection between the act and the enumerated powers of the president, and the acts of congress in relation to the questioned act. Where the president is acting in concert with the congress he is at the apex of his power - when acting in a manner opposed to the established law he is at the lowest point of his powers. When Bush's administration called for the wiretaps they were arguably against the FISA act, congress had established a method, Bush thought it was inefficient or insufficient and decided to create a new method under an inherent powers argument. Congress has since blessed the act. Since the congress hasn't explicitly rejected the method by enacting a law - but their silence and refusal to extend the act speaks loudly in its own way.
When it arrives at the supreme court - Bush 43 will probably be out of office. Unless something drastic happens in the meantime a Democrat will have inherited whatever power Bush has invested in the office of the president. It will make an interesting case I'm sure.
What I'm trying to highlight is that the Telcoms had room to reasonably believe that their acts were protected. The court when it evaluates the constitutionality of any congressional immunity will likely look both to the reasonableness of that belief, and whether or not those same acts would be illegal now. Policy wise they're going to want to balance the value of the constitutional right to privacy (an unenumerated right drawn from the protection against unlawful search and seizure) against the harm done by discouraging Telcoms from cooperating with government actors (their silent compliance is an essential element of the FISA law - it they challenged every warrantless wiretap that came from within the Gov't [still legal under FISA] then the secrecy of those wiretaps would be abrogated thus the purpose of FISA would be defeated). If the telecoms know that every warntless wiretap they assist in renders them liable for a court battle - they will be resistant to compliance without exercising eno
The bar is against creating a law which causes a past act to become criminal, or creating civil liability for past (legal at the time) acts.
Retroactive immunity is pretty well tested law.
-GiH
I'm not sympathetic to the interests of the phone companies... BUT
If they fear not losses at court but the expense of defending themselves in court - it makes sense to offer them immunity which is a straightforward defense. Any claim that can get past a summary judgement for failure to state a claim, or a jurisdictional challenge will have to go through the process of discovery. In discovery ATT etc, would need to complie and produce whatever relevant information the opposing attorneys request. They can either bear the costs of preparing those materials, or go before the court to challenge that cost - which involves paying teams of attorney to draft a brief and argue it before the court, also not cheap. Now, multiply that by the number of cases.
They can also challenge the opponents right to discovery of certain irrelevant material - but the standard on discovery is loose. If discovery is likely to lead to facts which will make the factual basis for the legal claims at issue more or less believable, then it's okay. That's a very broad standard. And of course, every motion to block discovery means another brief, another day in court, another bill from the lawyers.
Immunity on the other hand will allow them to hand-waive the entire case - no research into the facts, no questions of law outside of the limits of the immunity... a nice neat and tidy battleground that can be briefed once, and used against many cases.
As always - this should not be read as legal advice, merely opinion, your mileage may vary, check with your local lawyer.
-GiH
Bad companies have a habit of outlasting their usefulness as a target of litigation - and 100 million dollars has a bad habit of attracting quality legal talent.
The best result for Novell was for this legal battle to stop - probably better even than collecting their 20 mil. Given the choice I doubt their (novell's) legal advisors would suggest jumping up to let another court take a swing at getting something wrong.
-GiH
...that sucks.
-GiH
The more I read the writings of men like Jefferson the more clear it becomes that they were, essentially, only men. Men who did not forsee the weaknesses in the system the constructed, or in the acts the performed. Jefferson, by forming a political party, did more to split the nation in half than Bush ever has or could (short of declaring cesession), Adams tried to institute a religious test to block Jefferson's bid for office, etc.
What they did was undoutably remarkable, but their words are not sacred, and we should take them off the damn altar and put them back on the bookshelf. They need to be read and analyzed, not idolized.
-GiH
-GiH
I think what you're looking for is instant runoff voting.
-GiH
Oil, or young nubile women.
-GiH
-GiH
Free the spectrum. . . Save the world. . . Make $$$
-GiH
When you do it from an internet cafe?
-GiH
No, Facebook is NOT public - the default is limited access - which you may ramp up fruther. Unless you are on my friends list all you can see is my name and the picture I choose for my face. If you ARE my friend, you can see all my pictures, my e-mail and phone, my likes, my hates, and the fact that I induldge my brother by commuting zombiecide with him occasionally, and a fairly spotty account of what I've been up to for the last two years.
I am not willing to make that information public - but I want my friends to have it - and Facebook does this.
-GiH
Call ahead and ask for directions? Sure - why not. Of course you need to be able to hear them, write them down, and hope they're acurate enough to get you there - instead of say - using google maps to bring up a satelite image of your directions so you can spot roads and landmarks. The only reason I have web acess on my verizon account is on-the-go directions. I hate being lost - I love being able to fix that MYSELF without having to get out and ASK. Does anyone enjoy asking for directions? Placing yourself in somebody else's hands - hoping the guy running the gas station is competent enough to know where you're going - yeah - thats better than googlemaps.
That's why I wish I could do the whole Iphone thing - for that matter, screw the phone part, I'll use a flip phone - we need mico-handhelds. With the inclusion of a cell link for internet access, their day has finally come.
As usual, those who are paid to watch what's hapening now can't see what will be hapening then.
-GiH
Oh wait, I forgot, Trolls don't need facts when bullshit and bluster is available - how very Chenny of you.
-GiH
I assembled my current box from parts of the old with a few upgrades - new proc and mobo, 1.5 gig of ram, and a new video card. I remember looking at this seething pile of power with a wistful sorrow - because I was leaving for a year in Europe a month later, and my box was staying home - and would be useless when I returned. When I got back - my specs were still above the recomended minimums.. fast forward another year - I'm just starting to think I may need more ram and a new graphics card - to stay way above spec.
I'll admit, I don't vigourously pursue the newest graphics card - those come out with trivial upgrades much more often - but the performance growth isn't significant. (IM~HO).
Anyway - the point is the upgrade cycle is the same as a console about 1x every 2.5 years.
-GiH