It's interesting that you bring up Schenck, since in this context it is in fact a stark example of the abuse of constitutional rights in this country - it was a court decision that, using sophistry, managed to argue for a prohibition of the exact kind of speech (political) that the First Amendment was originally designed to protect. It's a good thing that Brandeburg wiped that abomination out.
Brandenburg v Ohio didn't really reverse Schenck in my opinion, it revised the test in a way that actually seems to be more of a case of backing off expansion of Shenck (i.e. Whitney v California) than eliminating it. Holmes in later decisions implied that the wording of the Schenck test to "clear and present danger" intended to be a stricter test than other courts (and even the Supreme Court) applied, and I think would have agreed with the later imminent lawless action test proscribed in Brandenburg.
Having said that, Brandenburg is another example of a case where the Supreme Court was asked to balance state interests with individual Constitutional rights, and even though Brandenburg held that the Constitutional First Amendment rights superceded government interest in this case, its still a case where such balancing takes place. Even Hugo Black (a more strident First Amendment supporter can't be found) believed that falsely yelling Fire in a theater knowing it would cause panic and injury could override First Amendment rights, and he was a First Amendment literalist (meaning: he felt the text meant that Congress was barred from writing any law which restrained speech, period).
Even though Brandenburg supercedes Schenck, I was thinking about the oldest cases where I could find such judicial reasoning for illustrative purposes as to the notion this isn't a recent phenomenon.
Their job is to weigh the benefits of government actions — like stopping terrorist threats — against violations of citizens' rights that may result from those actions.
Wait, what? All of a sudden we've decided that violating rights is OK if it makes us more secure? When did we decide that? I don't remember any court decisions that said "well, it's unconstitutional, sure, but it's OK because..."
Ignoring the phrasing, courts have been deciding that since almost while the ink was drying on the Constitution. The problem is that the US Constitution is often ambiguous in its statements, and conflicting (or rather overlapping) in its declarations. For example, the Fourth Amendment states that the right of the people to be secure against *unreasonable* searches shall not be violated, leaving the courts to decide what "unreasonable" means as there is no unambiguous definition of unreasonable in the Constitution. The Supreme Court also ruled that the First Amendment right which prevents Congress from making laws that prohibit the free exercise of religion is not unlimited, even though the text itself contains no exceptions, because to allow otherwise would allow anyone to break any law simply by claiming a religious exception. Courts have also ruled that the right to free speech (or rather the right to be free from governmental restraint on speech) can be balanced against other competing factors, including those that arise from the "necessary and proper" clause of Article 1: Congress can pass laws that abridge speech when it is necessary and proper to their function, such as criminalizing libel, or attempts to incite panic or criminal behavior (the canonical shouting "fire").
It isn't so much that these things are unconstitutional but ok, but rather that no language in the Constitution is interpreted to be absolute and superceding all other statements in the Constitution: courts are required to balance all the rights and responsibilities articulated in the Constitution where their language conflicts. Put simply, there is no Constitutional right to not be monitored that is absolute, that has ever been generally recognized at any time, not even by its framers. Its up to courts to decide when the government can infringe on those rights to exercise their own responsibilities under the Constitution.
If you're looking for an actual case, see Reynolds v United States. On a more related case issue, see Schenck v US where (the) Oliver Wendell Holmes wrote that freedom of speech and the press did not automatically protect speech explicitly intended to incite people to draft dodge at a time of war (its the case people often quote with regard to "shouting fire in a theater"). His decision also noted that speech that might be acceptable at some times may be unacceptable under specific circumstances, implying that Constitutional rights can be balanced against government interest in different ways under sufficiently different circumstances.
Alternatively, see Strict Scrutiny which is one of the standards by which the courts have attempted to balance individual Constitutional rights against Constitutional government interests and responsibilities.
Drivers need to pay attention to the road, there is no excuse for hitting a pedestrian in a cross walk or for a car to hit car at a cross walk. Drivers need to grow up, pay attention and stop blaming everything but the lack of driving ability.
I don't think the issue is the drivers blaming the signals. No one is saying accidents due to inattentiveness or dangerous behavior are anything but the fault of the person making the error. However, its often cold comfort to the victims of these accidents that the right person is held at fault. Whether its the responsibility of the traffic system designers to prevent accidents is irrelevant; if they can do so with reasonable effort they should try. All good designers should strive to make the things they design as safe as possible regardless of legal liability, whether that thing is a hammer or a traffic signal, because its the right thing to do.
If only one party shows up, then the judge can question the other party to determine the facts and apply the law.
Not in the United States they can't. Judges are Constitutionally barred from introducing evidence in their own court, they are only allowed to decide cases based on the evidence presented to them. They cannot investigate matters on their own. You could argue that's nonsensical and contrary to finding the truth, but that prohibition was based on the reasonable assumption that judges cannot consistently remain impartial when they are basically finding their own facts. There are other court systems in other countries where judges are not required to remain neutral arbitrators, and can act more actively within their courts to ascertain the facts of the case. But they trade these issues for their own issues.
The problem with (new) Reading Rainbow is that it will end up targeting and catering to kids that are already interested and proficient in reading, due to those kids being in families able to buy into the subscription. Twenty years ago, it worked because even poor families generally had at least a single crappy TV with rabbit ears, which was enough to get PBS.
That 4 or 5 million that ends up getting raised would go a lot further by addressing actual core issues with poverty, rather than giving kids who already know and like to read even more reason to do so.
That makes an enormous leap of logic, that children who have any sort of basic literacy no longer need any help or encouragement. A four year old that can read isn't automatically going to become a twelve year old that can read better and is still interested in reading anything other than text messages. I would argue that in today's world its even more important to encourage reading because unlike the days when television was the great distraction today there are far more sources of distraction competing for children's attention spans. Promoting the notion that reading is not a necessary evil but rather the gateway skill of learning, intellectual inquiry, and exposure to ideas is I believe incredibly valuable.
When I was very young, my father taught me to read, for which I will always be grateful. But he also taught me to *want* to read, and that's been the singular reason for my success in life over the years. He couldn't have done more to set me up for success if he handed me a million dollars when I was three (which he did not have nor ever would have).
Sure, you can always argue with priorities; pick any priority you want to spend money on and I can explain why that's the wrong place to spend money compared to some other place. But if LeVar Burton and his Kickstarter supporters (full disclosure: I am a supporter of the KS project) want to spend resources improving the lives and futures of children who deserve it just as much as any other children, I don't consider that a "problem" just because it doesn't mesh with someone else's priorities. Those people should invest their time, energy, and money on their own priorities instead of criticizing those that are willing to do so. I would respect that far more than armchair critics nit-picking other people's constructive efforts from the sidelines.
Bullshit. Threatening "50 years if you make us go to trial, but if you confess we'll recommend six months but the court can still give you 50 years" is still threatening 50 years. The threat of heavy sentences to get people to waive the right to a trail is an egregious violation of due process and the the guarantee against cruel and unusual punishments.
If you want to take away the ability for the government to pursue the maximum possible penalty, you should also recommend taking away their discretion to pursue the minimum possible penalty as well. I keep hearing that threatening to pursue the maximum *legal* sentence unless a plea bargain is negotiated is a violation of due process. I don't think anyone who says this actually understands what "due process" even is.
In my opinion, Aaron Swartz's suicide clearly suggests someone that in spite of public appearances to the contrary with a fragile mental state. Portraying the government as having driven him to suicide doesn't seem reasonable to me, particularly in light of the fact that all evidence suggests Swartz deliberately placed himself in legal jeopardy as a deliberate act of protest. Someone who deliberately does so without first considering the legal ramifications implies stupidity, and Swartz was a highly intelligent person. I therefore have to conclude that he knew the risks intellectually, but was completely unprepared to deal with them psychologically. That's tragic. But that doesn't make him a martyr.
So when a multinational company is pulling a Double Irish with a Dutch Sandwich the court judge will look upon them extremely unfavorably? Let's face it: it all boils down to the depth of your pockets and the impudence of your lawyers.
As a matter of fact, when Microsoft attempted to use both unproductive technicalities and obfuscationg cleverness in its anti-trust case they so annoyed the presiding judge that they came within a hairs-breadth of being disassembled by the Federal court, and all of their deep-pocket funded lawyers didn't help matters at all. The only thing that ironically helped Microsoft was that they so annoyed the presiding judge that he stated so publicly, and that gave Microsoft an opening to appeal the judgment as prejudicial. Its still worth noting that even with the appeal on the penalty, Microsoft was still found guilty of violating the Sherman act as a matter of law as the original findings of fact were not overturned.
The use of tax loopholes such as so-called "double Irish" transfers are not attempts to actually defraud or impede the court system itself. They are irrelevant to the post you're replying to.
You're getting your amendments confused. The self-incrimination thing is 5th, not 4th.
Yes it, is; I misstated that. However:
Fingerprints and other collection of obvious material evidence is one thing, and generally covered by the 4th. But the whole point here -- the WHOLE point in this ruling -- is that the encryption key involved is not material evidence, but "a product of the mind", as the courts have phrased it in prior cases. Personal knowledge. If compelled, it is by definition "testimonial".
In the legal sense, that's not true. The specific passage relevant in the decision is:
Here, the defendant's act of entering an encryption key in the computers seized by the
Commonwealth would appear, at first blush, to be a testimonial communication that triggers Fifth
Amendment protection. By such action, the defendant implicitly would be acknowledging that he
has ownership and control of the computers and their contents. [FN13] This is not simply the
production of real or physical evidence like a blood sample or a handwriting exemplar. Rather, the
defendant's act of entering the encryption key would be a communication of his knowledge about
particular facts that would be relevant to the Commonwealth's case. Our analysis, however, does
not end here. We must further determine whether the defendant's act of production loses its
testimonial character because the information that would be disclosed by the defendant is a
"foregone conclusion."
The "foregone conclusion" exception to the Fifth Amendment privilege against self-incrimination
provides that an act of production does not involve testimonial communication where the facts
conveyed already are known to the government, such that the individual "adds little or nothing to
the sum total of the Government's information." Fisher, 425 U.S. at 411.
The court cites FIsher, which states:
It is doubtful that implicitly admitting the existence and possession of the papers rises to the level of testimony within the protection of the Fifth Amendment. The papers belong to the accountant, were prepared by him, and are the kind usually prepared by an accountant working on the tax returns of his client. Surely the Government is in no way relying on the "truthtelling" of the taxpayer to prove the existence of or his access to the documents. 8 Wigmore 2264, p. 380. The existence and location of the papers are a foregone conclusion, and the taxpayer adds little or nothing to the sum total of the Government's information by conceding that he, in fact, has the papers. Under these circumstances, by enforcement of the summons, "no constitutional rights are touched. The question is not of testimony, but of surrender."
In this case, the court ruled that statements that disclose no more information than the government already possesses is not "testimony" wiithin the context of Fifth Amendment protections. Not all communicated "products of the mind" are testimony as a matter of law. That's the general test for evidence, but these cases imply that rule does not apply when the communication is not "evidence" in the legal sense. You are correct that the issue centers on self-incrimination, but the case law suggests that when self-incrimination is not an issue, information compelled from a defendant is not really "testimonial in nature" because, I am paraphrasing, no one is testifying to anything in particular.
There's one more important legal catch at work in this case. The defendant was not asked to disclose his encryption keys. He was asked to use them to decrypt his hard drives. So he wasn't being asked to explicitly testify what those passwords were. He was asked to use them to unlock data. The defense argument is that using those passwords *implicitly* testifies to his knowledge of them. But since he already claimed to have the passwords, asking him to use them discloses no more information than he alrea
I would disagree. Having this data available to crunch the numbers would definitely benefit healthcare (in the saving lives aspect). Currently (perhaps forever) the dangers probably outweigh the benefits. There is far too much incentive to abuse this data and we require more than some guy saying "hey, it's totally going to be fine" to convince us.
It's like storing passwords as plaintext. It is super convenient for everyone involved as long as everyone involved is altruistic. But assuming everyone is altruistic is stupid so storing passwords in plaintext is generally regarded as stupid.
I don't think that's a reasonable analogy. Here's a better one. The only reason the government even possesses the capability to perform the sort of mass surveillance they currently conduct is because of massive improvements in computational, storage, and communications technology. They couldn't collect email metadata without the invention and widespread deployment of cheap or essentially free electronic mail. They couldn't keep the data meaningfully without modern storage, or use it without current computer technology. But suppose that right at the birth of the microprocessor someone said that the government couldn't be trusted with the kind of power that technology would eventually provide, and thus we should strive to ensure its never allowed to be developed. No personal computers, no internet, no cloud computing, no smartphones. We now know they would have been right. Even so how many of us would in retrospect eliminate these technologies or forego their benefits? I suspect extremely few. And not because they are stupid or ignorant, but because they genuinely feel those benefits outweigh the consequences of their abuse.
I would *presume* that any large-scale collection and analysis of medical information will eventually be abused by someone. That still leaves the question of whether its a reasonable tradeoff. Its easy to say no now, when the benefits are only theoretical and the deficits seem obvious. But I think the many people whose lives would be saved or radically improved due to advances in statistical medical analysis would disagree. If someone is going to stand on principle and say nothing is worth the potential abuses, they should at least be honest and accept that their stance isn't bloodless or abstract. The opposition always assumes that the proponents of an idea should be held responsible for its consequences, but they rarely accept responsibility for the consequences of inaction. They should be. Even if its the right thing to do. Perhaps especially so.
What we need to do is put it to him in a way that will verify how true he actually believes he is being. Something along the lines of:
1. Detail what criteria are used to ascertain that 100,000 lives are to be saved by data mining health records.
2. Give Google access to said data to save 100,000 lives.
3. If they don't save at least 100,000 lives, then 100% of Google's assets are seized and liquidated. And 100% of the wealth of the top 100,000 shareholders in Google.
4. A complete removal of all consumer data from the hands of anyone who is, or within the last 10 years, a Google employee.
If Larry Page isn't willing to put his personal prosperity behind his claims, I don't believe that he is telling the truth.
I can certainly see the appeal of such a standard. I suspect it would radically improve the level of discourse on the internet if it mandated a similar standard.
In this case, a court would rule that a) you've just admitted the system contains information related to the government investigation, b) you created the system being used to obfuscate and hide that information, and c) even though you've made it difficult or impossible to produce that information at this time, you can be compelled to do so at the earliest possible moment the system physically allows, and d) the fact that you appear to have deliberately done all of this in a deliberate attempt to thwart law enforcement with full knowledge of the legal consequences can subject you to an obstruction of justice charge.
a) no b) no c) no d) no
[a] False because there could be many reasons for your actions, among them political. Encrypting or hiding information is not by itself evidence of wrongdoing. It CAN be, under particular circumstances, when certain other evidence is present. But by itself? No. And even if it DID contain such evidence, if it incriminated you, you could still not be compelled to disclose because of the 5th Amendment. The whole point of this thread.
[b] False because there is no law preventing you from encrypting anything you damned well please. 1st & 4th Amendments.
[c] False if by doing so, you could incriminate yourself (again, the whole point of this entire thread).
[d] False because it would not be possible to show this without having already convicted you on some other charge. It isn't "obstruction of justice" to do something unless it involves an actual crime. You aren't "obstructing justice" unless there is some kind of actual justice that you are actually obstructing.
I am assuming the above was within the context of the same situation the original article articulated, and was offered as a possible defense for such an individual. The case involves a person who has already admitted to having encrypted information that was well known to contain information relevant to a suspected crime. None of this would be applicable to a general request to decrypt information for no reason at all. The Court decision in this case makes it clear the reason for the ruling is the presumption that the disclosure of a password is not testimonially harmful in nature when its already well known that the person did in fact encrypt the data. The post above seemed to be attempting to manufacture a way to truthfully claim the person has no knowledge of a way to decrypt the data and no direct knowledge of the contents of the encrypted files as a technicality. That technicality would not likely help if he already admitted he encrypted relevant information in the first place. If he made no such admission, then prior precedent would likely prevent the authorities from forcing password disclosure as a violation of Fourth Amendment protections against testimonial self-incrimination.
Note the court highlighted the distinction that being compelled to surrender information or evidence that can be used against you is not automatically a violation of Fourth Amendment right to avoid self-incrimination: the right only prevents testimonial self-incrimination; i.e. the right not to be compelled to testify as to one's own guilt or innocence of a crime. If you're forced to give fingerprints to the police, and they tie you to a crime scene, that is not testimonial self-incrimination and not a violation of one's rights under the Fourth Amendment.
All this is making me start to think of some kind of more clever "panic mode" encryption.
You'd have to make it really fast, such that it's reg proto-encrypted two ways, one normal, and the panic mode. So say something really fast like shift-control-alt-F11 instantly flips the "panic bit".
We as geeks could put all kinds of awesome stuff into it, smashed into a kind of digital Klein Bottle with milk for Schrodinger's cat.
"Do you know how to decrypt it?"
"No"
"Why not?"
"Because it's time-locked with a code that cannot be found until next September."
"Do you know what documents are on there?"
"The ones you are looking for are not there because they were broken into component parts that only the computer knows, tied to a code that September code. Meanwhile other documents you did not know were there, are there, because they were created by algorithms the moment I hit the Panic Button and not a moment before. And the base of the September key is an English phrase which may or may not admit a crime. You don't know."
"So what if the case is dismissed?"
"I can do other work until September. What's important is that it cannot be broken right now."
In my opinion, that likely wouldn't work. Contrary to what you might see on TV or in movies, courts are not generally impressed by technicalities or deliberately unproductive cleverness. Consider the recent Supreme Court ruling against Aereo. The Court was entirely unmoved by the technical argument that the way Aereo implements their service is "basically like" individuals using antennas. They ruled that *overall* Aereo was obviously acting as a rebroadcaster, by taking in broadcast signals and sending them live to a large number of customers and charging for that. The notion that they don't charge for the broadcast, just the rent for the antenna was similarly unconvincing to the Court. Courts tend to look at net results, and less the technical path to achieve it. In this case, a court would rule that a) you've just admitted the system contains information related to the government investigation, b) you created the system being used to obfuscate and hide that information, and c) even though you've made it difficult or impossible to produce that information at this time, you can be compelled to do so at the earliest possible moment the system physically allows, and d) the fact that you appear to have deliberately done all of this in a deliberate attempt to thwart law enforcement with full knowledge of the legal consequences can subject you to an obstruction of justice charge.
Most judges and most courts do not consider the law to be a game that people can attempt to create exploits for. Exploiting loopholes in the law is one thing: doing so with an obvious willful intent to subvert the court tends to be looked upon extremely unfavorably. Judges have significant latitude to deal with people they think are trying to do that.
And? We don't hold trials for people in all circumstances.
Only in cases of imminent danger (i.e. he's about to kill/hurt someone right now, not at some unspecified point in the future, and it doesn't matter what group he belongs to) should this ever be allowed to happen.
For domestic criminals, this is generally true. But for declared warfare, this is not true. It has always been acceptable in warfare to preemptively target and kill enemy combatants, because there is the implicit assumption that all enemy combatants are fair targets.
Because al Qaeda is not a nation state, its unclear to what degree members should be considered enemy combatants. But leaving aside the political issues and the technical legal issues of international law, I think when an organization with the size and scope of al Qaeda declares itself to be in a state of armed combat with the US, and its members also publicly state so, and they take explicit actions involving lethal force to back up those claims, the US government should get the benefit of the doubt when treating those people. Its not a case of the government manufacturing a case against a random individual, its a case of them targeting a publicly declared member of an organization that treats the US as if it is at war with the US. That makes them not just ordinary criminals.
*If* captured, they should face trial if warranted. Even in warfare, enemy combatants have certain rights, and also can be prosecuted for crimes that fall outside of acceptable conduct during war. But there's no *obligation* to capture all enemy combatants of an enemy state.
You are close, but the Bill of Rights states that lethal force may need to be used to protect the public from eminent danger. Not "just because a cop feels like it" (which we seem to have an awful lot of lately).
Anwar al Awlaki may have been making videos telling people that they should do things to the US, but that is most certainly not presenting any eminent danger. Even if he was building an army until he starts gunning for Americans he is fine to do so. Hell, the US helps to arm and train militants that the Government likes.
We are "told" that he was bad, but in all honesty without a trial how do we know? Because a bunch of narcissistic politicians and heads of 3 letter agencies say so? Sadam had WMDs and yellow cake bombs, and the NSA is not spying on citizens right?
I don't have proof that every German and Japanese soldier killed during WWII did or would have killed an American when they were killed. No one does. That burden of proof is appropriate for criminals, but no nation considers it reasonable when dealing with declared enemy combatants. The question of whether Anwar al-Awlaki was an enemy combatant has a fine complex legal context, but it also has a more simple one for me in that he believed he was one, publicly claimed to be one repeatedly, and directly associated with a paramilitary organization that itself publicly claimed to be repeatedly and backed that claim up with acts of violence that are reasonably associated with what would be considered acts of war if conducted by a recognized nation-state. For me, that's enough benefit of the doubt to give the US government significant latitude in eliminating him as a threat by capture or deadly force.
That doesn't mean I buy that justification in every case, just that in this case the notion that the Bill of Rights protects him from being targeted as if he was just an alleged suspect of a crime doesn't seem appropriate to me.
I agree that this (truncated) example is terrible, but it's clearly obfuscation for obfuscation's sake. If you manually insert whitespace and newlines, the above example is easy to read except for a few deliberate obfuscation techniques like hard-to-follow operator chaining and nested assignment.
Most modern languages allow operator chaining, so things like "$t ^= $c ^= (...) " are not a problem with perl per-se. To make this more readable, all you have to do is decompose it into its component operators, following the rules of operator precedence: "{ $c ^= (...); $t ^= c; }". Most modern languages also allow nested assignment, so things like "if ((@a =...)[20] & 48)" are allowed. Again, if you want to make it more maintainable, you can write it as: "@a =...; if (@a[20] & 48)". Once we've removed those types of issues from your example, you're only left with issues related to lack of pretty-printing (includes the fact that nobody but Larry Wall truly understands perl's operator prededence rules), and some surprising things that happen because of implicit variables and dynamic scoping.
IMHO perl's greatest fault is that there is no round-trip-capable pretty-printer. If Perl shipped with a pretty-printer, and if that pretty printer included an option to explicitly parenthesize operators and insert omitted implicit variables, then people could use the tool to read and understand poorly-written perl-snippets, and the only real fault left would be the fact perl uses dynamic scoping by default.
The language itself moderately encourages unreadability, but I think the language itself is not the only problem. Even with pretty printers, there's a separate problem in that the perl community tends to even more strongly encourage language efficiency over code readability, and encourages leveraging the language's most powerful, but least readable syntax. That can't be pretty-printed away. In fact, in my experience self-taught perl programmers start off writing fairly readable code, if for no other reason than its easier for themselves to read their own code that way. But the more they encounter other perl programmers and other examples of perl code written by others, the more they degenerate into increasingly less readable code. Its not exactly the language itself causing that, but rather an amplification effect where its small encouragement influences a larger programming community to loop around and reinforce jettisoning syntactic candy for pure efficiency (and lose readability in the process) among its members.
You could say Perl is the tool that the Perl programming community uses to make more Perl programmers, molded in their image of absolute conciseness as one of the higher abstract goals of perl programs.
"Alleged" operational leader. No trial. Bam! You're dead.
Welcome to Soviet USA.
I don't think this particular situation is quite so simple. If Anwar al-Awlaki had joined the military of a country that had declared war on the United States, there would be no reasonable expectation of him being entitled to a criminal trial, because he would not be strictly speaking a criminal: he would be an enemy combatant, and furthermore no longer even an American citizen (since you cannot remain a US citizen while serving in the military of another country). The question is whether joining a paramilitary terrorist organization like Al Qaeda that isn't directly affiliated with a recognized nation-state triggers the same situation. He voluntarily made his affiliations public and also actively advocated violent acts against the United States and its citizens. I would myself like to know what evidence the government had that he posed a legitimate ongoing threat against the country, but I don't think its reasonable to try in abstentia every single member of al-Qaeda before lethal force can be used against them.
We are supposed to make the presumption that even when the burden is high, all suspected criminals are entitled to a fair trial before they are punished by the government for their alleged crimes. But there have always been two exceptions to that presumption that most people find reasonable. The first is that law enforcement may use force, including lethal force, to interrupt a crime in process. We assume the burden of proof is relaxed in that environment, because its literally impossible to adjudicate a fair trial in the middle of a crime. And the second are acts of war, where the government can act against declared enemies of the country. We can't hold a trial for each individual enemy soldier we come across before shooting at them. The question is whether al-Qaeda is a criminal organization or a political one that can be legitimately considered a national enemy.
Of course, even in times of war we do not generally assassinate the political leaders of the enemy; there is a notion that even an enemy country has a civilian population and a military. But its unclear to me that rule generally applies to al-Qaeda, as they do not have very much non-military infrastructure (besides financing). I would be uncomfortable with targeting al-Qaeda lawyers or bankers or spokespersons. But I'm not particularly disturbed by targeting of people directly involved in the planning or execution of terrorist activities.
I recognize that's not a particularly popular opinion, and its more nuanced than can easily be articulated. For example, I don't consider the Boston bombers to be anything but (alleged) criminals entitled to the full legal rights of the legal system. Unless contradictory information becomes known, whether they committed a terrorist act and whether they sympathize with or even claim membership in a terrorist organization, if there's no proof they were actually acting as agents of that organization, any US citizen acting within the borders of the United States is still entitled to full legal rights no matter how heinous their alleged acts. I just don't think al-Awlaki acted in a manner consistent with being entitled to those same protections.
Rationally, I have to think that when one service provider represents 10% or more of the traffic on a given network they should be doing something to address it, and the responsibility really falls on their shoulders and not the ISP.
There are two problems with that perspective, and they are interrelated. First, ISPs don't sell "bandwidth." Bandwidth isn't something consumers can actually consume directly most of the time. Most of the time, ISP customers pay for internet connections to get access. They want access to Google, Netflix, Amazon. Its the internet service companies that are the actual desireable destinations, and ISPs are only selling access to them. ISPs are necessary evils to get to Facebook, they are not the desireable entity themselves. So what if Google charged the ISPs for the right to carry their content? Netflix is what people want, why shouldn't Netflix sign exclusive deals with some ISPs to get Netflix? Right now content providers like CBS charge cable companies to carry their content.
The reason is that the net neutrality that ISPs now want to disavow or claim doesn't even exist is the same net neutrality that saved them tons of money and allowed them to grow into giant distribution networks for internet traffic. Having now gained everything they possibly could from being protected from content providers doing what content providers do in every other situation, and now being in the primary position of power, the ISPs now want to use that power by removing the restraints of the principles of net neutrality, which is intrinsically unfair.
Second, in a free market environment ISPs should have significant freedom to decide who to charge what, because they have to compete for customers. But the current macro-economic situation is that the major ISPs are an oligarchy that don't compete - Comcast actually admitted that they don't compete with Time Warner. Its an amazing admission that two of the largest ISPs in the US claim they essentially do not compete for customers. Implicit in that admission is that customers don't have a lot of choices. When ISPs exercise their muscle to set rates for things, customers have no ability to react by choosing the ISP with the most favorable terms to them. Customers cannot choose to select the ISP that offers the best bandwidth to Netflix. Netflix cannot make special deals with some ISPs to carry their content because doing so closes them off of many customers that can only get access to their content from the one and only ISP that services their area. That gives the ISPs enormous, practically monopoly power to squeeze content providers, because there's no free market mechanism to counter that.
So the notion that content providers should solve the problems their traffic creates is impractical today. If ISPs are allowed to place the burden of building out their own networks on content providers, using whatever methodology they see fit, they would be violating the very principles that allowed them to gain that power over content providers in the first place, and doing so with no real market-based restraint on their practices. The ISPs used the principles of net neutrality to gain power over the content providers, and now want the right to exercise that power with almost unlimited discretion. If net neutrality didn't exist in the first place, they would have never gained the power to do this in the first place. That's what I say to people who claim "net neutrality doesn't really exist."
Seriously, what are you guys talking about? The patent was invalidated because the independent claim did NOT state that the method was performed by a processor. It was thus considered to be an attempt to patent an abstract concept -- that is, a method of people interacting. The fact that software was involved did not play into the holding. And patents that comprise method claims "performed by a processor of a computer" are still valid, as they always have been.
One thing that should be considered before posting baloney about software algorithms being unpatentable, math being unpatentable, or methods being unpatentable is that method patents are statutory (see, e.g., comments to section 101 of the U.S. patent law) and ALWAYS HAVE BEEN. When Thomas Jefferson wrote the first U.S. patent law in the 18th Century, it expressly allowed method patents. And, um, what is an algorithm if not a method? Furthermore the CAFC has been so frustrated by uninformed commentary claiming that "math is not patentable" that it included a lengthy footnote in a precedential case 10 years ago that redefined the obviousness standard, explaining in detail the difference between an abstract concept, "math," and methods. This issue is long-settled.
I realize that patent law, like most areas of the law, is complex and nuanced. But the solution to not understanding the topic is NOT to post and repost the same ignorant baloney, guys. In posts like the above, it's obvious that some I-ANAL is just making stuff up. (Or blithely repeating statements that some other I-ANAL made up.)
I realize that many posters here would be horrified by the suggestion that only IP attorneys should be taken seriously when commenting on patent law. But think about it: If we were talking about some other exotic, highly technical topic, wouldn't you apply that same standard? ERISA employment law? Afghan genome-mapping? The prevalence of modal melodic constructions in the Twelfth Century? What makes the average tech geek think he or she is remotely qualified to comment on patent law simply because he or she is capable of creating the type of subject matter claimed by the patent? Come on, seriously? If you can build a deck, does that mean you're qualified to draw up a real-estate contract?
OK, I didn't start out with the intent to rant. But like a few other people here who obviously have some idea of how the law works and what the case law means, I get frustrated by these endless self-important, and often, as here, unintentionally funny, pronouncements about the "broken" patent system. Go do your homework.
OK, I feel better now. Carry on.
1. The claim did state that the methods described were performed "on a processor." Quote: "Petitioner Alice Corporation is the assignee of several patents that disclose a scheme for mitigating “settlement risk,” i.e., the risk that only one party to an agreed-upon financial exchange will satisfy its obligation. In particular, the patent claims are designed to facilitate the exchange of financial obligations between two parties by using a computer system as a third-party intermediary." See also: USP 5,970,479.
2. The Appellate Court actually ruled specifically that because the method was claimed to be implemented on a computer, it was deserving of patent protection.
3. The Supreme Court, which overrules the CAFC, disagreed and overturned. The Supreme Court currently employs a transformative test that explicitly states "math is not patentable." In order to be valid, a patent application can claim a mathematical algorithm as a component of a larger whole, but cannot direct its claims to math itself. The substantive logic they apply, which they explicitly state in Alice, is that if they were to allow patents on mathematical formulas they would be allowing claims on "the building blocks of human ingenuity, which are ineligible for patent protection." The precedent being
I *want* the authorities, with proper warrant, to be able to access any digital/analog communication
if you were the victim you'd expect it
Emphasis mine. That's really the key, isn't it...proper warrant? Having a proper warrant also means they have to show probable cause. This law is about defunding warrantless wiretapping. But, like was pointed out, it doesn't name the FBI. Did you know that the FBI is officially no longer a law enforcement agency, but is instead now an anti-terror agency? This pretty much means that the FBI can use it as an excuse to be the ones doing domestic warrantless wiretapping. However, even though this law may just shuffle things around (even if it miraculously passes the senate), I see it as a Very Good Thing because it's a step in the right direction: Pushing back against blatant constitutional violations.
Actually, the amendment doesn't defund warrantless wiretapping directly, at least as I read it. What it specifically states is "none of the funds made available by this Act may be used by an officer or employee of the United States to query a collection of foreign intelligence information acquired under section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a) using a United States person identifier."
My interpretation of that amendment is that nothing prohibits the NSA or the CIA from collecting that data, but it disallows them from directly requesting any information from that data tied directly to a US citizen. More specifically, it says that no one funded by that appropriations bill can do that. Since the data is collected by the NSA and its funding comes from that bill, it legally bars them from performing any similar query for any other agency as well.
There are still a lot of loopholes that could be used to try to evade this amendment, assuming it passes, but it does seem to indicate that outside of the House committees that are directly involved with intelligence oversight, there is strong political will in both Democratic and Republican circles to curtail this type of activity. That's a necessary first step to making any long term changes. But it is only a first step.
Could someone explain to me why further refinement of fabrication process is the only way to progress? With a car analogy?
The only way to make cars both faster than more energy efficient is to make them lighter. You can make cars faster by giving them more powerful engines, but at some point you'd have to power them with nuclear reactors. At some point, the semiconductor manufacturers were making cars with about fifty pounds of aluminum and carbon fiber, and reaching the limits of what you could do with less material without the car falling apart. So they are currently researching carbon nanotubes and organic spider silk to the next generation of cars can be made with thirty pounds of material and a steering wheel. By 2018, they expect to be making cars out of six pounds of adamantium and silicon aerogel, with a top speed of fifty thousand miles per hour.
I think you fundamentally misunderstood his statement, thought the random throwaway statement at the beginning about software being covered by copyright didn't help.
He talked about how someone could build a machine with mechanisms (triggered by switches) built into it and patent that machine. But once that machine was invented, nobody else should be able to come along and patent using the machine with a certain set of switches on or off, because the switches and their options were already included in the original invention.
The issue of patentability doesn't presume that when someone patents a device, all possible uses of the device are implicitly covered. Its not true that once someone patents the computer, all possible uses for the computer are no longer patentable. The question is one of novelty. If someone tries to patent an invention that involves using another machine with a certain configuration, in the simple case that would almost certainly fail the novelty test, in that the machine was being used in exactly the way envisioned by the inventor in the aggregate. But computers can be programmed in ways that are not so trivial, and the argument that all possible ways to program a computer are not patentable because you can't patent a computer running a computer program presumes all possible computer programs are trivially extrapolated uses for the digital computer. That's not automatically true.
What the SCOTUS ruling seems to suggest is something more interestingly fundamental. Most software patents are, by the Supreme Court's own reasoning, attempts to dodge the limits of patent law which state that you can't patent abstract ideas. Most software patents are just "abstract idea, but running in a computer." The argument has been that a computer is a tangible object, so obviously a program that implements an abstract idea running in a computer is patentable, because its a physical thing. The Supreme Court appears to be taking a line of logic that is interesting and - at least for lower courts - not obvious. They are saying that because the act of programming a computer to implement an algorithm is something that is not generally novel - its "well-understood, routine, conventional activit[ies]," the mere act of specifying that an idea is implemented in a computer does not make it automatically a tangible object that is patentable. They even go further, saying if they allowed the implementation of an abstract idea in a computer to be patentable, that would allow all abstract ideas to be patentable because all such ideas can be implemented in a general purpose computer. That's actually a rather sophisticated piece of legal thinking.
What it seems to suggest to me is that the only way a software patent can be legal is either if the patent describes a specific way to implement the idea in a computer that is not trivial, uses special hardware that is itself patentable, or if the software combined with the hardware does something that is novel without taking into account the fact it uses a computer. In other words, if the only novelty of the patent is "its on a computer" that no longer works. If the software does something inventive that would still be considered inventive even if it was performed by something other than a computer, it may still qualify for patent protection.
Why I find this interesting is that before the invention of the digital computer, in a sense all inventions were abstract ideas encapsulated in physical form. A machine is something that performs an algorithm with its various parts. And in the physical world, there are a lot of ways to make a machine do a set of things: there was a lot of opportunity for novelty, and thus a lot of opportunity for patenting an invention. Two different machines that did the same thing in two completely different ways were potentially each patentable without infringing on the other. But in a sense, there's only one way to make a digital computer perform an algorithm: you write a program to te
Let's toss a few axioms:
1.In order to fork TrueCrypt it must be practically possible to create a fork which is secure (free of backdoors etc.).
2.A fork of TrueCypt must take less time to create and certify than writing an entirely new product from scratch. Otherwise, there is no point.
3. The algorithms used by TrueCrypt must be fundamentally sound. If you change them you are no longer forking TrueCrypt, you are really just writing a new product.
And a totally reasonable assumption:
The authors of TrueCrypt believe the project is compromised in a manner so subtle that the effort required to detect it would be as great or greater than creating a new project from scratch and/or the algorithms TrueCrypt is using are not secure against attacks known to TLAs (or whoever).
In this case the term "impossible" is reasonably applied, if maybe a bit looser than you might like.
Using your own axioms, if rewriting the product from scratch has a higher probability of disrupting the original algorithms implemented within TrueCrypt, then it cannot be automatically presumed to be likely that modifying it will take more time than reimplementing it. Thus, combining axiom 3 with axiom 2, a fork has to be at least reasonably likely to be practical for any group that has the capability to patch the code reasonably well but does not have the confidence to replicate its entire implementation from scratch in a way that avoids the problems within axiom 1. It is therefore not reasonable to conclude that a fork is "impossible" because it doesn't even reach the level of being demonstrably impractical. Following your axioms, one has to presume that whether its impractical or not depends on the nature of the group attempting the fork.
As to your "reasonable assumption" - it might be reasonable to believe that the authors believe this to be true, but I'm not sure its a reasonable assumption in the absolute sense. They may be aware of flaw sufficiently critical that the effort to code a fix for it is higher than the effort necessary to reengineer it from scratch, but its impossible for such a flaw to be so subtle it can't be articulated in detail. If the flaw is not sufficiently understood to be describable, there's no way to know that its so fundamental that the entire system has to be rewritten.
In either case, if the authors really want to compel people to rewrite TrueCrypt and not simply fork it, the best way to do that would be to reveal what they believe the bug or design flaw is in confidence to a few select researchers, such as those involved in the code audit. If they are afraid of the flaw becoming public, the attention being drawn to the project is likely to eventually uncover it anyway, possibly by less scrupulous entities first. Gambling that they are the only people smart enough to discover the flaw is not a good bet for anyone to make. If the flaw is as bad as they believe it to be, it should not be difficult to convince a reasonably competent security analyst of that fact.
I wonder if this ought to invalidate crap like the infamous Amazon one-click patent. After all it was also just a generic software implementation of a long-established system, namely storing someone's payment and address details for use with future purchases.
I don't think so. My read of the opinion is that what the court found to be lacking in the Alice patents was specificity of invention. In other words, the patent claimed the idea of doing something, but not an actual specific implementation of doing something; the actual invention itself. The court held that you cannot patent an idea, and just saying in the patent application "a computer that implements the idea" is not enough. You have to be very specific and claim something that is not obvious and automatic. Its possible Amazon's one-click patent is sufficiently specific that its still patentable. But what might happen is that Amazon could lose the ability to challenge all forms of one-click, and could only protect its own very specific implementation of it. Its possible the *idea* of one-click purchase could be held unpatentable, and open the door to non-trivial alternate implementations of the same idea. For example, the Amazon patent specifies pre-registering payment information and assigning the customer a unique identifier than binds their electronic shopping cart with that payment information, such that using a single HTML button the purchase can be executed by referencing the payment information bound to the shopping cart's identification number. A one-click system that didn't specifically do that, but say used a single sign-on system that simultaneously authenticated against the payment database and the shopping cart system and triggered a third system to perform the payment process with both systems could be theoretically held to be a different invention to implement the same (unpatentable on its own) idea.
I don't think the ruling directly invalidates the idea of a software patent. But I could see it limiting the claims of software patents enough to allow people to work around them more reasonably, by only requiring software implementers avoid using the exact, precise methods claimed within a patent, and not the entire idea the software patent implements.
We have inflation becasue the Federal Government spends more than it takes in. And this tax is NOT going to cover the short fall. Indexing is treating the symptoms, not the underlying problem.
That's an interesting conjecture. The fact that inflation has seen its lowest values in decades at a time when the Federal Government has run the highest budget deficits would probably deter most people from reaching that conclusion.
There are lots of causes for inflation, but one of them is that when wages go up, people spend more and companies can charge more for its products and services. Some small amount of inflation is a good thing, because it means people are making more money and feel confident in spending more money. Zero inflation is usually a sign of wage stagnation, something you generally want to avoid. In a healthy economy, companies would be charging somewhat more tomorrow to pave a road or build a bridge than yesterday, and thus the costs of maintaining the highway system should rise steadily over time, and that would require a higher level of taxes to pay for it. Even if you cut spending in other areas, you would only be delaying the time when you would have to eventually increase the amount of taxes you spend on the remaining things you want to fund. So even in an ideal world where the federal government contained no waste and spent tax dollars only on essential services, indexing for inflation is something that would still be necessary to ensure that the amount of tax revenues rises roughly in sync with the rising costs of delivering those services (unless the taxes are intrinsically indexed: for example income taxes are percentage taxes and thus automatically go up as wages go up).
With all due respect. Are you crazy? New taxes are never the solution. Ever. This is like helping someone who is addicted to cocaine, more cocaine! How about this, they truely balance the budget first, then we can argue about how we should spend the money. You want new roads, awesome, then we cut social security, medicare and medicate.
Its a bit more complicated than that in this specific case. Gas taxes go into the Highway Trust which is used to fund highway construction and repair projects and other related transportation projects. 80% isn't actually spent directly by the Federal government, its block granted to states for state infrastructure projects related to highways and transit. The taxes themselves aren't indexed to inflation and haven't been adjusted since 1993, so while they remain relatively static the costs of performing the same tasks has gone up. Its basically impossible for the Highway fund to operate indefinitely on that basis, and its basically reaching a critical funding point now.
Regardless of government inefficiencies, the costs to maintain the highways and upgrade transit systems will go up every year. If you never increase the amount of taxes dedicated to that effort, eventually the costs will exceed the revenues you have to spend on it. So while you can argue that those costs should be made up through other taxes, that's just shifting the problem around. Its still the case that the sentiment behind "new taxes are never the solution" obscures the fact that even if you don't do anything new, what you're doing today will generally cost more tomorrow. The Highway Fund, which is specifically dedicated to transportation projects, is not I believe the most appropriate place to take a hard line stance given the fact its a more focused area of the federal budget than most tax dollars and is spent on projects that tend to be more generally universally seen as desireable than most areas of the budget.
There is nobody on this planet that is as inefficient as our government
There are entities just as inefficient as the federal government. The private corporations that burn through the vast majority of the money the federal government spends. Behind every great government spending problem is a private entity helping them spend the vast majority of it.
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It's interesting that you bring up Schenck, since in this context it is in fact a stark example of the abuse of constitutional rights in this country - it was a court decision that, using sophistry, managed to argue for a prohibition of the exact kind of speech (political) that the First Amendment was originally designed to protect. It's a good thing that Brandeburg wiped that abomination out.
Brandenburg v Ohio didn't really reverse Schenck in my opinion, it revised the test in a way that actually seems to be more of a case of backing off expansion of Shenck (i.e. Whitney v California) than eliminating it. Holmes in later decisions implied that the wording of the Schenck test to "clear and present danger" intended to be a stricter test than other courts (and even the Supreme Court) applied, and I think would have agreed with the later imminent lawless action test proscribed in Brandenburg.
Having said that, Brandenburg is another example of a case where the Supreme Court was asked to balance state interests with individual Constitutional rights, and even though Brandenburg held that the Constitutional First Amendment rights superceded government interest in this case, its still a case where such balancing takes place. Even Hugo Black (a more strident First Amendment supporter can't be found) believed that falsely yelling Fire in a theater knowing it would cause panic and injury could override First Amendment rights, and he was a First Amendment literalist (meaning: he felt the text meant that Congress was barred from writing any law which restrained speech, period).
Even though Brandenburg supercedes Schenck, I was thinking about the oldest cases where I could find such judicial reasoning for illustrative purposes as to the notion this isn't a recent phenomenon.
Their job is to weigh the benefits of government actions — like stopping terrorist threats — against violations of citizens' rights that may result from those actions.
Wait, what? All of a sudden we've decided that violating rights is OK if it makes us more secure? When did we decide that? I don't remember any court decisions that said "well, it's unconstitutional, sure, but it's OK because..."
Ignoring the phrasing, courts have been deciding that since almost while the ink was drying on the Constitution. The problem is that the US Constitution is often ambiguous in its statements, and conflicting (or rather overlapping) in its declarations. For example, the Fourth Amendment states that the right of the people to be secure against *unreasonable* searches shall not be violated, leaving the courts to decide what "unreasonable" means as there is no unambiguous definition of unreasonable in the Constitution. The Supreme Court also ruled that the First Amendment right which prevents Congress from making laws that prohibit the free exercise of religion is not unlimited, even though the text itself contains no exceptions, because to allow otherwise would allow anyone to break any law simply by claiming a religious exception. Courts have also ruled that the right to free speech (or rather the right to be free from governmental restraint on speech) can be balanced against other competing factors, including those that arise from the "necessary and proper" clause of Article 1: Congress can pass laws that abridge speech when it is necessary and proper to their function, such as criminalizing libel, or attempts to incite panic or criminal behavior (the canonical shouting "fire").
It isn't so much that these things are unconstitutional but ok, but rather that no language in the Constitution is interpreted to be absolute and superceding all other statements in the Constitution: courts are required to balance all the rights and responsibilities articulated in the Constitution where their language conflicts. Put simply, there is no Constitutional right to not be monitored that is absolute, that has ever been generally recognized at any time, not even by its framers. Its up to courts to decide when the government can infringe on those rights to exercise their own responsibilities under the Constitution.
If you're looking for an actual case, see Reynolds v United States. On a more related case issue, see Schenck v US where (the) Oliver Wendell Holmes wrote that freedom of speech and the press did not automatically protect speech explicitly intended to incite people to draft dodge at a time of war (its the case people often quote with regard to "shouting fire in a theater"). His decision also noted that speech that might be acceptable at some times may be unacceptable under specific circumstances, implying that Constitutional rights can be balanced against government interest in different ways under sufficiently different circumstances.
Alternatively, see Strict Scrutiny which is one of the standards by which the courts have attempted to balance individual Constitutional rights against Constitutional government interests and responsibilities.
Drivers need to pay attention to the road, there is no excuse for hitting a pedestrian in a cross walk or for a car to hit car at a cross walk. Drivers need to grow up, pay attention and stop blaming everything but the lack of driving ability.
I don't think the issue is the drivers blaming the signals. No one is saying accidents due to inattentiveness or dangerous behavior are anything but the fault of the person making the error. However, its often cold comfort to the victims of these accidents that the right person is held at fault. Whether its the responsibility of the traffic system designers to prevent accidents is irrelevant; if they can do so with reasonable effort they should try. All good designers should strive to make the things they design as safe as possible regardless of legal liability, whether that thing is a hammer or a traffic signal, because its the right thing to do.
If only one party shows up, then the judge can question the other party to determine the facts and apply the law.
Not in the United States they can't. Judges are Constitutionally barred from introducing evidence in their own court, they are only allowed to decide cases based on the evidence presented to them. They cannot investigate matters on their own. You could argue that's nonsensical and contrary to finding the truth, but that prohibition was based on the reasonable assumption that judges cannot consistently remain impartial when they are basically finding their own facts. There are other court systems in other countries where judges are not required to remain neutral arbitrators, and can act more actively within their courts to ascertain the facts of the case. But they trade these issues for their own issues.
The problem with (new) Reading Rainbow is that it will end up targeting and catering to kids that are already interested and proficient in reading, due to those kids being in families able to buy into the subscription. Twenty years ago, it worked because even poor families generally had at least a single crappy TV with rabbit ears, which was enough to get PBS. That 4 or 5 million that ends up getting raised would go a lot further by addressing actual core issues with poverty, rather than giving kids who already know and like to read even more reason to do so.
That makes an enormous leap of logic, that children who have any sort of basic literacy no longer need any help or encouragement. A four year old that can read isn't automatically going to become a twelve year old that can read better and is still interested in reading anything other than text messages. I would argue that in today's world its even more important to encourage reading because unlike the days when television was the great distraction today there are far more sources of distraction competing for children's attention spans. Promoting the notion that reading is not a necessary evil but rather the gateway skill of learning, intellectual inquiry, and exposure to ideas is I believe incredibly valuable.
When I was very young, my father taught me to read, for which I will always be grateful. But he also taught me to *want* to read, and that's been the singular reason for my success in life over the years. He couldn't have done more to set me up for success if he handed me a million dollars when I was three (which he did not have nor ever would have).
Sure, you can always argue with priorities; pick any priority you want to spend money on and I can explain why that's the wrong place to spend money compared to some other place. But if LeVar Burton and his Kickstarter supporters (full disclosure: I am a supporter of the KS project) want to spend resources improving the lives and futures of children who deserve it just as much as any other children, I don't consider that a "problem" just because it doesn't mesh with someone else's priorities. Those people should invest their time, energy, and money on their own priorities instead of criticizing those that are willing to do so. I would respect that far more than armchair critics nit-picking other people's constructive efforts from the sidelines.
Bullshit. Threatening "50 years if you make us go to trial, but if you confess we'll recommend six months but the court can still give you 50 years" is still threatening 50 years. The threat of heavy sentences to get people to waive the right to a trail is an egregious violation of due process and the the guarantee against cruel and unusual punishments.
If you want to take away the ability for the government to pursue the maximum possible penalty, you should also recommend taking away their discretion to pursue the minimum possible penalty as well. I keep hearing that threatening to pursue the maximum *legal* sentence unless a plea bargain is negotiated is a violation of due process. I don't think anyone who says this actually understands what "due process" even is.
In my opinion, Aaron Swartz's suicide clearly suggests someone that in spite of public appearances to the contrary with a fragile mental state. Portraying the government as having driven him to suicide doesn't seem reasonable to me, particularly in light of the fact that all evidence suggests Swartz deliberately placed himself in legal jeopardy as a deliberate act of protest. Someone who deliberately does so without first considering the legal ramifications implies stupidity, and Swartz was a highly intelligent person. I therefore have to conclude that he knew the risks intellectually, but was completely unprepared to deal with them psychologically. That's tragic. But that doesn't make him a martyr.
So when a multinational company is pulling a Double Irish with a Dutch Sandwich the court judge will look upon them extremely unfavorably? Let's face it: it all boils down to the depth of your pockets and the impudence of your lawyers.
As a matter of fact, when Microsoft attempted to use both unproductive technicalities and obfuscationg cleverness in its anti-trust case they so annoyed the presiding judge that they came within a hairs-breadth of being disassembled by the Federal court, and all of their deep-pocket funded lawyers didn't help matters at all. The only thing that ironically helped Microsoft was that they so annoyed the presiding judge that he stated so publicly, and that gave Microsoft an opening to appeal the judgment as prejudicial. Its still worth noting that even with the appeal on the penalty, Microsoft was still found guilty of violating the Sherman act as a matter of law as the original findings of fact were not overturned.
The use of tax loopholes such as so-called "double Irish" transfers are not attempts to actually defraud or impede the court system itself. They are irrelevant to the post you're replying to.
You're getting your amendments confused. The self-incrimination thing is 5th, not 4th.
Yes it, is; I misstated that. However:
Fingerprints and other collection of obvious material evidence is one thing, and generally covered by the 4th. But the whole point here -- the WHOLE point in this ruling -- is that the encryption key involved is not material evidence, but "a product of the mind", as the courts have phrased it in prior cases. Personal knowledge. If compelled, it is by definition "testimonial".
In the legal sense, that's not true. The specific passage relevant in the decision is:
Here, the defendant's act of entering an encryption key in the computers seized by the Commonwealth would appear, at first blush, to be a testimonial communication that triggers Fifth Amendment protection. By such action, the defendant implicitly would be acknowledging that he has ownership and control of the computers and their contents. [FN13] This is not simply the production of real or physical evidence like a blood sample or a handwriting exemplar. Rather, the defendant's act of entering the encryption key would be a communication of his knowledge about particular facts that would be relevant to the Commonwealth's case. Our analysis, however, does not end here. We must further determine whether the defendant's act of production loses its testimonial character because the information that would be disclosed by the defendant is a "foregone conclusion." The "foregone conclusion" exception to the Fifth Amendment privilege against self-incrimination provides that an act of production does not involve testimonial communication where the facts conveyed already are known to the government, such that the individual "adds little or nothing to the sum total of the Government's information." Fisher, 425 U.S. at 411.
The court cites FIsher, which states:
It is doubtful that implicitly admitting the existence and possession of the papers rises to the level of testimony within the protection of the Fifth Amendment. The papers belong to the accountant, were prepared by him, and are the kind usually prepared by an accountant working on the tax returns of his client. Surely the Government is in no way relying on the "truthtelling" of the taxpayer to prove the existence of or his access to the documents. 8 Wigmore 2264, p. 380. The existence and location of the papers are a foregone conclusion, and the taxpayer adds little or nothing to the sum total of the Government's information by conceding that he, in fact, has the papers. Under these circumstances, by enforcement of the summons, "no constitutional rights are touched. The question is not of testimony, but of surrender."
In this case, the court ruled that statements that disclose no more information than the government already possesses is not "testimony" wiithin the context of Fifth Amendment protections. Not all communicated "products of the mind" are testimony as a matter of law. That's the general test for evidence, but these cases imply that rule does not apply when the communication is not "evidence" in the legal sense. You are correct that the issue centers on self-incrimination, but the case law suggests that when self-incrimination is not an issue, information compelled from a defendant is not really "testimonial in nature" because, I am paraphrasing, no one is testifying to anything in particular.
There's one more important legal catch at work in this case. The defendant was not asked to disclose his encryption keys. He was asked to use them to decrypt his hard drives. So he wasn't being asked to explicitly testify what those passwords were. He was asked to use them to unlock data. The defense argument is that using those passwords *implicitly* testifies to his knowledge of them. But since he already claimed to have the passwords, asking him to use them discloses no more information than he alrea
I would disagree. Having this data available to crunch the numbers would definitely benefit healthcare (in the saving lives aspect). Currently (perhaps forever) the dangers probably outweigh the benefits. There is far too much incentive to abuse this data and we require more than some guy saying "hey, it's totally going to be fine" to convince us.
It's like storing passwords as plaintext. It is super convenient for everyone involved as long as everyone involved is altruistic. But assuming everyone is altruistic is stupid so storing passwords in plaintext is generally regarded as stupid.
I don't think that's a reasonable analogy. Here's a better one. The only reason the government even possesses the capability to perform the sort of mass surveillance they currently conduct is because of massive improvements in computational, storage, and communications technology. They couldn't collect email metadata without the invention and widespread deployment of cheap or essentially free electronic mail. They couldn't keep the data meaningfully without modern storage, or use it without current computer technology. But suppose that right at the birth of the microprocessor someone said that the government couldn't be trusted with the kind of power that technology would eventually provide, and thus we should strive to ensure its never allowed to be developed. No personal computers, no internet, no cloud computing, no smartphones. We now know they would have been right. Even so how many of us would in retrospect eliminate these technologies or forego their benefits? I suspect extremely few. And not because they are stupid or ignorant, but because they genuinely feel those benefits outweigh the consequences of their abuse.
I would *presume* that any large-scale collection and analysis of medical information will eventually be abused by someone. That still leaves the question of whether its a reasonable tradeoff. Its easy to say no now, when the benefits are only theoretical and the deficits seem obvious. But I think the many people whose lives would be saved or radically improved due to advances in statistical medical analysis would disagree. If someone is going to stand on principle and say nothing is worth the potential abuses, they should at least be honest and accept that their stance isn't bloodless or abstract. The opposition always assumes that the proponents of an idea should be held responsible for its consequences, but they rarely accept responsibility for the consequences of inaction. They should be. Even if its the right thing to do. Perhaps especially so.
What we need to do is put it to him in a way that will verify how true he actually believes he is being. Something along the lines of:
1. Detail what criteria are used to ascertain that 100,000 lives are to be saved by data mining health records. 2. Give Google access to said data to save 100,000 lives. 3. If they don't save at least 100,000 lives, then 100% of Google's assets are seized and liquidated. And 100% of the wealth of the top 100,000 shareholders in Google. 4. A complete removal of all consumer data from the hands of anyone who is, or within the last 10 years, a Google employee.
If Larry Page isn't willing to put his personal prosperity behind his claims, I don't believe that he is telling the truth.
I can certainly see the appeal of such a standard. I suspect it would radically improve the level of discourse on the internet if it mandated a similar standard.
In this case, a court would rule that a) you've just admitted the system contains information related to the government investigation, b) you created the system being used to obfuscate and hide that information, and c) even though you've made it difficult or impossible to produce that information at this time, you can be compelled to do so at the earliest possible moment the system physically allows, and d) the fact that you appear to have deliberately done all of this in a deliberate attempt to thwart law enforcement with full knowledge of the legal consequences can subject you to an obstruction of justice charge.
a) no b) no c) no d) no [a] False because there could be many reasons for your actions, among them political. Encrypting or hiding information is not by itself evidence of wrongdoing. It CAN be, under particular circumstances, when certain other evidence is present. But by itself? No. And even if it DID contain such evidence, if it incriminated you, you could still not be compelled to disclose because of the 5th Amendment. The whole point of this thread. [b] False because there is no law preventing you from encrypting anything you damned well please. 1st & 4th Amendments. [c] False if by doing so, you could incriminate yourself (again, the whole point of this entire thread). [d] False because it would not be possible to show this without having already convicted you on some other charge. It isn't "obstruction of justice" to do something unless it involves an actual crime. You aren't "obstructing justice" unless there is some kind of actual justice that you are actually obstructing.
I am assuming the above was within the context of the same situation the original article articulated, and was offered as a possible defense for such an individual. The case involves a person who has already admitted to having encrypted information that was well known to contain information relevant to a suspected crime. None of this would be applicable to a general request to decrypt information for no reason at all. The Court decision in this case makes it clear the reason for the ruling is the presumption that the disclosure of a password is not testimonially harmful in nature when its already well known that the person did in fact encrypt the data. The post above seemed to be attempting to manufacture a way to truthfully claim the person has no knowledge of a way to decrypt the data and no direct knowledge of the contents of the encrypted files as a technicality. That technicality would not likely help if he already admitted he encrypted relevant information in the first place. If he made no such admission, then prior precedent would likely prevent the authorities from forcing password disclosure as a violation of Fourth Amendment protections against testimonial self-incrimination.
Note the court highlighted the distinction that being compelled to surrender information or evidence that can be used against you is not automatically a violation of Fourth Amendment right to avoid self-incrimination: the right only prevents testimonial self-incrimination; i.e. the right not to be compelled to testify as to one's own guilt or innocence of a crime. If you're forced to give fingerprints to the police, and they tie you to a crime scene, that is not testimonial self-incrimination and not a violation of one's rights under the Fourth Amendment.
All this is making me start to think of some kind of more clever "panic mode" encryption.
You'd have to make it really fast, such that it's reg proto-encrypted two ways, one normal, and the panic mode. So say something really fast like shift-control-alt-F11 instantly flips the "panic bit".
We as geeks could put all kinds of awesome stuff into it, smashed into a kind of digital Klein Bottle with milk for Schrodinger's cat.
"Do you know how to decrypt it?" "No" "Why not?" "Because it's time-locked with a code that cannot be found until next September." "Do you know what documents are on there?" "The ones you are looking for are not there because they were broken into component parts that only the computer knows, tied to a code that September code. Meanwhile other documents you did not know were there, are there, because they were created by algorithms the moment I hit the Panic Button and not a moment before. And the base of the September key is an English phrase which may or may not admit a crime. You don't know." "So what if the case is dismissed?" "I can do other work until September. What's important is that it cannot be broken right now."
In my opinion, that likely wouldn't work. Contrary to what you might see on TV or in movies, courts are not generally impressed by technicalities or deliberately unproductive cleverness. Consider the recent Supreme Court ruling against Aereo. The Court was entirely unmoved by the technical argument that the way Aereo implements their service is "basically like" individuals using antennas. They ruled that *overall* Aereo was obviously acting as a rebroadcaster, by taking in broadcast signals and sending them live to a large number of customers and charging for that. The notion that they don't charge for the broadcast, just the rent for the antenna was similarly unconvincing to the Court. Courts tend to look at net results, and less the technical path to achieve it. In this case, a court would rule that a) you've just admitted the system contains information related to the government investigation, b) you created the system being used to obfuscate and hide that information, and c) even though you've made it difficult or impossible to produce that information at this time, you can be compelled to do so at the earliest possible moment the system physically allows, and d) the fact that you appear to have deliberately done all of this in a deliberate attempt to thwart law enforcement with full knowledge of the legal consequences can subject you to an obstruction of justice charge.
Most judges and most courts do not consider the law to be a game that people can attempt to create exploits for. Exploiting loopholes in the law is one thing: doing so with an obvious willful intent to subvert the court tends to be looked upon extremely unfavorably. Judges have significant latitude to deal with people they think are trying to do that.
And? We don't hold trials for people in all circumstances.
Only in cases of imminent danger (i.e. he's about to kill/hurt someone right now, not at some unspecified point in the future, and it doesn't matter what group he belongs to) should this ever be allowed to happen.
For domestic criminals, this is generally true. But for declared warfare, this is not true. It has always been acceptable in warfare to preemptively target and kill enemy combatants, because there is the implicit assumption that all enemy combatants are fair targets.
Because al Qaeda is not a nation state, its unclear to what degree members should be considered enemy combatants. But leaving aside the political issues and the technical legal issues of international law, I think when an organization with the size and scope of al Qaeda declares itself to be in a state of armed combat with the US, and its members also publicly state so, and they take explicit actions involving lethal force to back up those claims, the US government should get the benefit of the doubt when treating those people. Its not a case of the government manufacturing a case against a random individual, its a case of them targeting a publicly declared member of an organization that treats the US as if it is at war with the US. That makes them not just ordinary criminals.
*If* captured, they should face trial if warranted. Even in warfare, enemy combatants have certain rights, and also can be prosecuted for crimes that fall outside of acceptable conduct during war. But there's no *obligation* to capture all enemy combatants of an enemy state.
You are close, but the Bill of Rights states that lethal force may need to be used to protect the public from eminent danger. Not "just because a cop feels like it" (which we seem to have an awful lot of lately).
Anwar al Awlaki may have been making videos telling people that they should do things to the US, but that is most certainly not presenting any eminent danger. Even if he was building an army until he starts gunning for Americans he is fine to do so. Hell, the US helps to arm and train militants that the Government likes.
We are "told" that he was bad, but in all honesty without a trial how do we know? Because a bunch of narcissistic politicians and heads of 3 letter agencies say so? Sadam had WMDs and yellow cake bombs, and the NSA is not spying on citizens right?
I don't have proof that every German and Japanese soldier killed during WWII did or would have killed an American when they were killed. No one does. That burden of proof is appropriate for criminals, but no nation considers it reasonable when dealing with declared enemy combatants. The question of whether Anwar al-Awlaki was an enemy combatant has a fine complex legal context, but it also has a more simple one for me in that he believed he was one, publicly claimed to be one repeatedly, and directly associated with a paramilitary organization that itself publicly claimed to be repeatedly and backed that claim up with acts of violence that are reasonably associated with what would be considered acts of war if conducted by a recognized nation-state. For me, that's enough benefit of the doubt to give the US government significant latitude in eliminating him as a threat by capture or deadly force.
That doesn't mean I buy that justification in every case, just that in this case the notion that the Bill of Rights protects him from being targeted as if he was just an alleged suspect of a crime doesn't seem appropriate to me.
I agree that this (truncated) example is terrible, but it's clearly obfuscation for obfuscation's sake. If you manually insert whitespace and newlines, the above example is easy to read except for a few deliberate obfuscation techniques like hard-to-follow operator chaining and nested assignment.
Most modern languages allow operator chaining, so things like "$t ^= $c ^= (...) " are not a problem with perl per-se. To make this more readable, all you have to do is decompose it into its component operators, following the rules of operator precedence: "{ $c ^= (...); $t ^= c; }". Most modern languages also allow nested assignment, so things like "if ((@a = ...)[20] & 48)" are allowed. Again, if you want to make it more maintainable, you can write it as: "@a = ...; if (@a[20] & 48)". Once we've removed those types of issues from your example, you're only left with issues related to lack of pretty-printing (includes the fact that nobody but Larry Wall truly understands perl's operator prededence rules), and some surprising things that happen because of implicit variables and dynamic scoping.
IMHO perl's greatest fault is that there is no round-trip-capable pretty-printer. If Perl shipped with a pretty-printer, and if that pretty printer included an option to explicitly parenthesize operators and insert omitted implicit variables, then people could use the tool to read and understand poorly-written perl-snippets, and the only real fault left would be the fact perl uses dynamic scoping by default.
The language itself moderately encourages unreadability, but I think the language itself is not the only problem. Even with pretty printers, there's a separate problem in that the perl community tends to even more strongly encourage language efficiency over code readability, and encourages leveraging the language's most powerful, but least readable syntax. That can't be pretty-printed away. In fact, in my experience self-taught perl programmers start off writing fairly readable code, if for no other reason than its easier for themselves to read their own code that way. But the more they encounter other perl programmers and other examples of perl code written by others, the more they degenerate into increasingly less readable code. Its not exactly the language itself causing that, but rather an amplification effect where its small encouragement influences a larger programming community to loop around and reinforce jettisoning syntactic candy for pure efficiency (and lose readability in the process) among its members.
You could say Perl is the tool that the Perl programming community uses to make more Perl programmers, molded in their image of absolute conciseness as one of the higher abstract goals of perl programs.
"Alleged" operational leader. No trial. Bam! You're dead.
Welcome to Soviet USA.
I don't think this particular situation is quite so simple. If Anwar al-Awlaki had joined the military of a country that had declared war on the United States, there would be no reasonable expectation of him being entitled to a criminal trial, because he would not be strictly speaking a criminal: he would be an enemy combatant, and furthermore no longer even an American citizen (since you cannot remain a US citizen while serving in the military of another country). The question is whether joining a paramilitary terrorist organization like Al Qaeda that isn't directly affiliated with a recognized nation-state triggers the same situation. He voluntarily made his affiliations public and also actively advocated violent acts against the United States and its citizens. I would myself like to know what evidence the government had that he posed a legitimate ongoing threat against the country, but I don't think its reasonable to try in abstentia every single member of al-Qaeda before lethal force can be used against them.
We are supposed to make the presumption that even when the burden is high, all suspected criminals are entitled to a fair trial before they are punished by the government for their alleged crimes. But there have always been two exceptions to that presumption that most people find reasonable. The first is that law enforcement may use force, including lethal force, to interrupt a crime in process. We assume the burden of proof is relaxed in that environment, because its literally impossible to adjudicate a fair trial in the middle of a crime. And the second are acts of war, where the government can act against declared enemies of the country. We can't hold a trial for each individual enemy soldier we come across before shooting at them. The question is whether al-Qaeda is a criminal organization or a political one that can be legitimately considered a national enemy.
Of course, even in times of war we do not generally assassinate the political leaders of the enemy; there is a notion that even an enemy country has a civilian population and a military. But its unclear to me that rule generally applies to al-Qaeda, as they do not have very much non-military infrastructure (besides financing). I would be uncomfortable with targeting al-Qaeda lawyers or bankers or spokespersons. But I'm not particularly disturbed by targeting of people directly involved in the planning or execution of terrorist activities.
I recognize that's not a particularly popular opinion, and its more nuanced than can easily be articulated. For example, I don't consider the Boston bombers to be anything but (alleged) criminals entitled to the full legal rights of the legal system. Unless contradictory information becomes known, whether they committed a terrorist act and whether they sympathize with or even claim membership in a terrorist organization, if there's no proof they were actually acting as agents of that organization, any US citizen acting within the borders of the United States is still entitled to full legal rights no matter how heinous their alleged acts. I just don't think al-Awlaki acted in a manner consistent with being entitled to those same protections.
Rationally, I have to think that when one service provider represents 10% or more of the traffic on a given network they should be doing something to address it, and the responsibility really falls on their shoulders and not the ISP.
There are two problems with that perspective, and they are interrelated. First, ISPs don't sell "bandwidth." Bandwidth isn't something consumers can actually consume directly most of the time. Most of the time, ISP customers pay for internet connections to get access. They want access to Google, Netflix, Amazon. Its the internet service companies that are the actual desireable destinations, and ISPs are only selling access to them. ISPs are necessary evils to get to Facebook, they are not the desireable entity themselves. So what if Google charged the ISPs for the right to carry their content? Netflix is what people want, why shouldn't Netflix sign exclusive deals with some ISPs to get Netflix? Right now content providers like CBS charge cable companies to carry their content.
The reason is that the net neutrality that ISPs now want to disavow or claim doesn't even exist is the same net neutrality that saved them tons of money and allowed them to grow into giant distribution networks for internet traffic. Having now gained everything they possibly could from being protected from content providers doing what content providers do in every other situation, and now being in the primary position of power, the ISPs now want to use that power by removing the restraints of the principles of net neutrality, which is intrinsically unfair.
Second, in a free market environment ISPs should have significant freedom to decide who to charge what, because they have to compete for customers. But the current macro-economic situation is that the major ISPs are an oligarchy that don't compete - Comcast actually admitted that they don't compete with Time Warner. Its an amazing admission that two of the largest ISPs in the US claim they essentially do not compete for customers. Implicit in that admission is that customers don't have a lot of choices. When ISPs exercise their muscle to set rates for things, customers have no ability to react by choosing the ISP with the most favorable terms to them. Customers cannot choose to select the ISP that offers the best bandwidth to Netflix. Netflix cannot make special deals with some ISPs to carry their content because doing so closes them off of many customers that can only get access to their content from the one and only ISP that services their area. That gives the ISPs enormous, practically monopoly power to squeeze content providers, because there's no free market mechanism to counter that.
So the notion that content providers should solve the problems their traffic creates is impractical today. If ISPs are allowed to place the burden of building out their own networks on content providers, using whatever methodology they see fit, they would be violating the very principles that allowed them to gain that power over content providers in the first place, and doing so with no real market-based restraint on their practices. The ISPs used the principles of net neutrality to gain power over the content providers, and now want the right to exercise that power with almost unlimited discretion. If net neutrality didn't exist in the first place, they would have never gained the power to do this in the first place. That's what I say to people who claim "net neutrality doesn't really exist."
Seriously, what are you guys talking about? The patent was invalidated because the independent claim did NOT state that the method was performed by a processor. It was thus considered to be an attempt to patent an abstract concept -- that is, a method of people interacting. The fact that software was involved did not play into the holding. And patents that comprise method claims "performed by a processor of a computer" are still valid, as they always have been.
One thing that should be considered before posting baloney about software algorithms being unpatentable, math being unpatentable, or methods being unpatentable is that method patents are statutory (see, e.g., comments to section 101 of the U.S. patent law) and ALWAYS HAVE BEEN. When Thomas Jefferson wrote the first U.S. patent law in the 18th Century, it expressly allowed method patents. And, um, what is an algorithm if not a method? Furthermore the CAFC has been so frustrated by uninformed commentary claiming that "math is not patentable" that it included a lengthy footnote in a precedential case 10 years ago that redefined the obviousness standard, explaining in detail the difference between an abstract concept, "math," and methods. This issue is long-settled.
I realize that patent law, like most areas of the law, is complex and nuanced. But the solution to not understanding the topic is NOT to post and repost the same ignorant baloney, guys. In posts like the above, it's obvious that some I-ANAL is just making stuff up. (Or blithely repeating statements that some other I-ANAL made up.)
I realize that many posters here would be horrified by the suggestion that only IP attorneys should be taken seriously when commenting on patent law. But think about it: If we were talking about some other exotic, highly technical topic, wouldn't you apply that same standard? ERISA employment law? Afghan genome-mapping? The prevalence of modal melodic constructions in the Twelfth Century? What makes the average tech geek think he or she is remotely qualified to comment on patent law simply because he or she is capable of creating the type of subject matter claimed by the patent? Come on, seriously? If you can build a deck, does that mean you're qualified to draw up a real-estate contract?
OK, I didn't start out with the intent to rant. But like a few other people here who obviously have some idea of how the law works and what the case law means, I get frustrated by these endless self-important, and often, as here, unintentionally funny, pronouncements about the "broken" patent system. Go do your homework.
OK, I feel better now. Carry on.
1. The claim did state that the methods described were performed "on a processor." Quote: "Petitioner Alice Corporation is the assignee of several patents that disclose a scheme for mitigating “settlement risk,” i.e., the risk that only one party to an agreed-upon financial exchange will satisfy its obligation. In particular, the patent claims are designed to facilitate the exchange of financial obligations between two parties by using a computer system as a third-party intermediary." See also: USP 5,970,479.
2. The Appellate Court actually ruled specifically that because the method was claimed to be implemented on a computer, it was deserving of patent protection.
3. The Supreme Court, which overrules the CAFC, disagreed and overturned. The Supreme Court currently employs a transformative test that explicitly states "math is not patentable." In order to be valid, a patent application can claim a mathematical algorithm as a component of a larger whole, but cannot direct its claims to math itself. The substantive logic they apply, which they explicitly state in Alice, is that if they were to allow patents on mathematical formulas they would be allowing claims on "the building blocks of human ingenuity, which are ineligible for patent protection." The precedent being
I *want* the authorities, with proper warrant, to be able to access any digital/analog communication
if you were the victim you'd expect it
Emphasis mine. That's really the key, isn't it...proper warrant? Having a proper warrant also means they have to show probable cause. This law is about defunding warrantless wiretapping. But, like was pointed out, it doesn't name the FBI. Did you know that the FBI is officially no longer a law enforcement agency, but is instead now an anti-terror agency? This pretty much means that the FBI can use it as an excuse to be the ones doing domestic warrantless wiretapping. However, even though this law may just shuffle things around (even if it miraculously passes the senate), I see it as a Very Good Thing because it's a step in the right direction: Pushing back against blatant constitutional violations.
Actually, the amendment doesn't defund warrantless wiretapping directly, at least as I read it. What it specifically states is "none of the funds made available by this Act may be used by an officer or employee of the United States to query a collection of foreign intelligence information acquired under section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a) using a United States person identifier."
My interpretation of that amendment is that nothing prohibits the NSA or the CIA from collecting that data, but it disallows them from directly requesting any information from that data tied directly to a US citizen. More specifically, it says that no one funded by that appropriations bill can do that. Since the data is collected by the NSA and its funding comes from that bill, it legally bars them from performing any similar query for any other agency as well.
There are still a lot of loopholes that could be used to try to evade this amendment, assuming it passes, but it does seem to indicate that outside of the House committees that are directly involved with intelligence oversight, there is strong political will in both Democratic and Republican circles to curtail this type of activity. That's a necessary first step to making any long term changes. But it is only a first step.
Could someone explain to me why further refinement of fabrication process is the only way to progress? With a car analogy?
The only way to make cars both faster than more energy efficient is to make them lighter. You can make cars faster by giving them more powerful engines, but at some point you'd have to power them with nuclear reactors. At some point, the semiconductor manufacturers were making cars with about fifty pounds of aluminum and carbon fiber, and reaching the limits of what you could do with less material without the car falling apart. So they are currently researching carbon nanotubes and organic spider silk to the next generation of cars can be made with thirty pounds of material and a steering wheel. By 2018, they expect to be making cars out of six pounds of adamantium and silicon aerogel, with a top speed of fifty thousand miles per hour.
I think you fundamentally misunderstood his statement, thought the random throwaway statement at the beginning about software being covered by copyright didn't help.
He talked about how someone could build a machine with mechanisms (triggered by switches) built into it and patent that machine. But once that machine was invented, nobody else should be able to come along and patent using the machine with a certain set of switches on or off, because the switches and their options were already included in the original invention.
The issue of patentability doesn't presume that when someone patents a device, all possible uses of the device are implicitly covered. Its not true that once someone patents the computer, all possible uses for the computer are no longer patentable. The question is one of novelty. If someone tries to patent an invention that involves using another machine with a certain configuration, in the simple case that would almost certainly fail the novelty test, in that the machine was being used in exactly the way envisioned by the inventor in the aggregate. But computers can be programmed in ways that are not so trivial, and the argument that all possible ways to program a computer are not patentable because you can't patent a computer running a computer program presumes all possible computer programs are trivially extrapolated uses for the digital computer. That's not automatically true.
What the SCOTUS ruling seems to suggest is something more interestingly fundamental. Most software patents are, by the Supreme Court's own reasoning, attempts to dodge the limits of patent law which state that you can't patent abstract ideas. Most software patents are just "abstract idea, but running in a computer." The argument has been that a computer is a tangible object, so obviously a program that implements an abstract idea running in a computer is patentable, because its a physical thing. The Supreme Court appears to be taking a line of logic that is interesting and - at least for lower courts - not obvious. They are saying that because the act of programming a computer to implement an algorithm is something that is not generally novel - its "well-understood, routine, conventional activit[ies]," the mere act of specifying that an idea is implemented in a computer does not make it automatically a tangible object that is patentable. They even go further, saying if they allowed the implementation of an abstract idea in a computer to be patentable, that would allow all abstract ideas to be patentable because all such ideas can be implemented in a general purpose computer. That's actually a rather sophisticated piece of legal thinking.
What it seems to suggest to me is that the only way a software patent can be legal is either if the patent describes a specific way to implement the idea in a computer that is not trivial, uses special hardware that is itself patentable, or if the software combined with the hardware does something that is novel without taking into account the fact it uses a computer. In other words, if the only novelty of the patent is "its on a computer" that no longer works. If the software does something inventive that would still be considered inventive even if it was performed by something other than a computer, it may still qualify for patent protection.
Why I find this interesting is that before the invention of the digital computer, in a sense all inventions were abstract ideas encapsulated in physical form. A machine is something that performs an algorithm with its various parts. And in the physical world, there are a lot of ways to make a machine do a set of things: there was a lot of opportunity for novelty, and thus a lot of opportunity for patenting an invention. Two different machines that did the same thing in two completely different ways were potentially each patentable without infringing on the other. But in a sense, there's only one way to make a digital computer perform an algorithm: you write a program to te
Let's toss a few axioms: 1.In order to fork TrueCrypt it must be practically possible to create a fork which is secure (free of backdoors etc.). 2.A fork of TrueCypt must take less time to create and certify than writing an entirely new product from scratch. Otherwise, there is no point. 3. The algorithms used by TrueCrypt must be fundamentally sound. If you change them you are no longer forking TrueCrypt, you are really just writing a new product.
And a totally reasonable assumption: The authors of TrueCrypt believe the project is compromised in a manner so subtle that the effort required to detect it would be as great or greater than creating a new project from scratch and/or the algorithms TrueCrypt is using are not secure against attacks known to TLAs (or whoever).
In this case the term "impossible" is reasonably applied, if maybe a bit looser than you might like.
Using your own axioms, if rewriting the product from scratch has a higher probability of disrupting the original algorithms implemented within TrueCrypt, then it cannot be automatically presumed to be likely that modifying it will take more time than reimplementing it. Thus, combining axiom 3 with axiom 2, a fork has to be at least reasonably likely to be practical for any group that has the capability to patch the code reasonably well but does not have the confidence to replicate its entire implementation from scratch in a way that avoids the problems within axiom 1. It is therefore not reasonable to conclude that a fork is "impossible" because it doesn't even reach the level of being demonstrably impractical. Following your axioms, one has to presume that whether its impractical or not depends on the nature of the group attempting the fork.
As to your "reasonable assumption" - it might be reasonable to believe that the authors believe this to be true, but I'm not sure its a reasonable assumption in the absolute sense. They may be aware of flaw sufficiently critical that the effort to code a fix for it is higher than the effort necessary to reengineer it from scratch, but its impossible for such a flaw to be so subtle it can't be articulated in detail. If the flaw is not sufficiently understood to be describable, there's no way to know that its so fundamental that the entire system has to be rewritten.
In either case, if the authors really want to compel people to rewrite TrueCrypt and not simply fork it, the best way to do that would be to reveal what they believe the bug or design flaw is in confidence to a few select researchers, such as those involved in the code audit. If they are afraid of the flaw becoming public, the attention being drawn to the project is likely to eventually uncover it anyway, possibly by less scrupulous entities first. Gambling that they are the only people smart enough to discover the flaw is not a good bet for anyone to make. If the flaw is as bad as they believe it to be, it should not be difficult to convince a reasonably competent security analyst of that fact.
I wonder if this ought to invalidate crap like the infamous Amazon one-click patent. After all it was also just a generic software implementation of a long-established system, namely storing someone's payment and address details for use with future purchases.
I don't think so. My read of the opinion is that what the court found to be lacking in the Alice patents was specificity of invention. In other words, the patent claimed the idea of doing something, but not an actual specific implementation of doing something; the actual invention itself. The court held that you cannot patent an idea, and just saying in the patent application "a computer that implements the idea" is not enough. You have to be very specific and claim something that is not obvious and automatic. Its possible Amazon's one-click patent is sufficiently specific that its still patentable. But what might happen is that Amazon could lose the ability to challenge all forms of one-click, and could only protect its own very specific implementation of it. Its possible the *idea* of one-click purchase could be held unpatentable, and open the door to non-trivial alternate implementations of the same idea. For example, the Amazon patent specifies pre-registering payment information and assigning the customer a unique identifier than binds their electronic shopping cart with that payment information, such that using a single HTML button the purchase can be executed by referencing the payment information bound to the shopping cart's identification number. A one-click system that didn't specifically do that, but say used a single sign-on system that simultaneously authenticated against the payment database and the shopping cart system and triggered a third system to perform the payment process with both systems could be theoretically held to be a different invention to implement the same (unpatentable on its own) idea.
I don't think the ruling directly invalidates the idea of a software patent. But I could see it limiting the claims of software patents enough to allow people to work around them more reasonably, by only requiring software implementers avoid using the exact, precise methods claimed within a patent, and not the entire idea the software patent implements.
We have inflation becasue the Federal Government spends more than it takes in. And this tax is NOT going to cover the short fall. Indexing is treating the symptoms, not the underlying problem.
That's an interesting conjecture. The fact that inflation has seen its lowest values in decades at a time when the Federal Government has run the highest budget deficits would probably deter most people from reaching that conclusion.
There are lots of causes for inflation, but one of them is that when wages go up, people spend more and companies can charge more for its products and services. Some small amount of inflation is a good thing, because it means people are making more money and feel confident in spending more money. Zero inflation is usually a sign of wage stagnation, something you generally want to avoid. In a healthy economy, companies would be charging somewhat more tomorrow to pave a road or build a bridge than yesterday, and thus the costs of maintaining the highway system should rise steadily over time, and that would require a higher level of taxes to pay for it. Even if you cut spending in other areas, you would only be delaying the time when you would have to eventually increase the amount of taxes you spend on the remaining things you want to fund. So even in an ideal world where the federal government contained no waste and spent tax dollars only on essential services, indexing for inflation is something that would still be necessary to ensure that the amount of tax revenues rises roughly in sync with the rising costs of delivering those services (unless the taxes are intrinsically indexed: for example income taxes are percentage taxes and thus automatically go up as wages go up).
With all due respect. Are you crazy? New taxes are never the solution. Ever. This is like helping someone who is addicted to cocaine, more cocaine! How about this, they truely balance the budget first, then we can argue about how we should spend the money. You want new roads, awesome, then we cut social security, medicare and medicate.
Its a bit more complicated than that in this specific case. Gas taxes go into the Highway Trust which is used to fund highway construction and repair projects and other related transportation projects. 80% isn't actually spent directly by the Federal government, its block granted to states for state infrastructure projects related to highways and transit. The taxes themselves aren't indexed to inflation and haven't been adjusted since 1993, so while they remain relatively static the costs of performing the same tasks has gone up. Its basically impossible for the Highway fund to operate indefinitely on that basis, and its basically reaching a critical funding point now.
Regardless of government inefficiencies, the costs to maintain the highways and upgrade transit systems will go up every year. If you never increase the amount of taxes dedicated to that effort, eventually the costs will exceed the revenues you have to spend on it. So while you can argue that those costs should be made up through other taxes, that's just shifting the problem around. Its still the case that the sentiment behind "new taxes are never the solution" obscures the fact that even if you don't do anything new, what you're doing today will generally cost more tomorrow. The Highway Fund, which is specifically dedicated to transportation projects, is not I believe the most appropriate place to take a hard line stance given the fact its a more focused area of the federal budget than most tax dollars and is spent on projects that tend to be more generally universally seen as desireable than most areas of the budget.
There is nobody on this planet that is as inefficient as our government
There are entities just as inefficient as the federal government. The private corporations that burn through the vast majority of the money the federal government spends. Behind every great government spending problem is a private entity helping them spend the vast majority of it.