Since your reaction is to be litigious, I will start with the normal boring disclaimer. I am not a lawyer nor am I licensed to practice law in any state.
To answer your question:
If they intentionally misrepresented a material fact of the contract by concealing information from you, you may be able to have the contract rescinded. In which case, you would still be obligated to pay the ISP a fair amount for the service you received. You could receive the difference between this and what was paid.
If they committed fraud by telling you that they were not blocked, they could also be liable for punitive damages. This does not seem to be the case from your story. Note, puffing does not count. For instance, if they told you that they were the best ISP in the city, or another grandiose claim that does not misrepresent material fact they would not have committed misrepresentation or fraud.
If they specifically contracted with you (written or orally) and or provided some guarentee that your page would not be blocked by CyberPatrol or other filter product, they would be in breach. In which case, they could be liable for expectancy damages. Thus, how much you could have made had the breach not occurred. It would be your burden to prove this, and the level required would be pretty high.
Please consult with a licensed attorney to verify the above information.
Now, could you not think of a response that did not involve a legal action against your ISP. Did they really harm you? Did they do anything unreasonable? Most/. complain vigorously about ISPs censoring content. The reason most of them do it is not b/c they are morally against the content, but they want to protect themselves from potential lawsuits. Your ISP stands up to this and fights for free speech. If you go after them, they still have legal fees. If they do not fight and return your money they have still lost money just for making a moral stand. This will probably happen more than once and they will have two choices: go bankrupt or implement decency terms of service. Regardless of your assertion, you are doing business with the headhunter. They will provide you a service for which they get payment. Maybe you aren't writing the check, but they are selling your good name. Thus, your proposed question would end up with this result: (1) Supporting a company that censors content. The headhunter who makes money off your name. (2) Punishing a company that supports free speech. Your ISP by trying to get money from them.
Please consider some other options: (1) Post your resume on a free page (2) Fax it to the company (3) Refuse to do business with anyone that supports censorship.
I'm sure that many sites would love to be at.sex. Unfortunately, I would be afraid to see this implemented. We would end up with an MPAA style fiasco. Legitimate artistic sites would rather be at a.com (or.art). Some people could find these to be sexually explicit. Thus, it would either be approved by an all knowing body, which I doubt you would want. Or, it would still create a market demand for censor products in the.com space.
Although Mr. Katz does not come out and use these terms, he does point a difference between media sensationalism, and event participatation. This is where the new technology draws the difference.
In other posts, a referenced http://www.ctheory.com, a journal that covers this topic exclusively. There was a story that I once read there about the gulf war, and how it was different b/c it was in our living rooms. It points out how this phenomona began with Vietnam and the near time coverage.
Good or bad judgements aside, the Kennedy coverage allowed us to vicariously experience the grief that his family went through. It wasn't News as much as participation. There were a large number of people that stayed glued to the television, and vicariously experienced the same grief and tragedy that close family members would have felt. They were able to get information slowly leeked to them and the silence (periods of inactivity) served to build the emotional crescendo.
I will admit, the media did oversensationalize the issue to push this emotion onto people that otherwise would not have been able to grasp. Its ashamed that this occurred at sources that we depend on for more serious coverage of events.
Thankfully, we do have other options. Since I did not care to be a part of this reactive theatre. I played with my son,listened to NPR, read slashdot, went to work, and watched a couple of movies.
Before I found slashdot, I use to lurk at http://www.ctheory.com. Its an academic treatment of how technology affects culture and creates cultural change. For those interested in the subject, you may want to thumb through it. Its banner theory, technology, culture.
You can fight it. There are tons of ways. Commit time or resources to organizations that fight these laws in a peaceful manner (Consider the ACLU or EFF). Email, fax, and call your congressional representatives. Let them know you vote and you care about your civil liberties. Start your own action groups, and raise awareness of liberty issues. If you really think this is important, take it to court. Fighting for liberty is like having children. You don't think you have the money to do it, but after you commit you find a way to make it happen. Make your voice heard and fight for liberty.
Wait for about three years. There will be an article on Slashdot "Congress Considers outlawing identity modification. Current legislation sponsored by Jesse Lamar Hitler would make it a federal crime punishable with death by torture for persons to modify their phenotype characteristics without consent from the government. Hitler states that sandpapering fingerprints has become a serious problem for National Security." First post reads, "Its really not that bad an idea. Consider that they have all that information anyway. If your a law abiding citizen, you don't have anything to worry about."
I honestly think we'd be in a worse position. Today, we have a body of law that is being challenged with some success in the judiciary branch. I don't know if the evolution of this would repeal crypto-export restrictions, but a new legislation would render a lot of this work null and void. You would have to litigate the new law all over again, and maybe not have the same success.
Additionally all the other arguments about presidential control would still apply.
What scares me even more is bullet #5. What sectors would be subject to license free treatment of encryption products above the threshold, consistent with US policy? Can you imagine the abuse and administration needed to establish this objective. First, you would have to have a committee to classify and recommend sectors. Is Be an OS, multimedia product, internet browser, etc. Is it all of the above. A new corporate legal war emerges to determine product's class and industry sector. Until now, we left this to the marketing departments and trade journals. It would now be an issue of law.
Furthermore, think of the political lobbies necessary to get sector or product exemption. It could be prohibitive for all but large companies to lobby for an exemption. This is just for the legal methods. Imagine the abuse possible for illegal methods... bribery of officials, back corner deals to escrow keys with the NSA.
As mentioned previously, it would also be a first step toward controls for domestic encryption controls.
Let me first state, I am not at all a fan of AOL. However, as I stated in another post, I think the reason they keep the email logs is fear of prosecution on themselves, particularly under RICO statutes. Not too long ago, Ebay caught the justice departments' scrutiny because their customers were selling stolen merchandise. Courts do not look favorably on willful blindness, and there are even ostrich laws in some states against willful blindness.
A clever prosecutor could argue that: (1) Its common knowledge that criminals engage in conspiracy using the AOL service (2) It would take little effort for AOL to maintain email logs (3) They intentionally looked in the other direction to allow this activity to occur and further their business interests. Prosecuted under RICO, they could seize most of the corporate assets and possibly even the private assets of the executives. The executives would have the burden of proof of showing that their assets were not fruits of the criminal activity.
Personally, I wish AOL would show a little fortitude and act in the interest of personal privacy. I think that's the trade off you have whenever you choose a big, public business as a service provider. While you may get some corporate stability and perhaps additional services, you can expect them to CYA when push comes to shove.
(1) AOL's policy is located on the article page. In short, they only release emails on a warrant, and will release identities even in a civil action. Even if AOL never stated a policy and specifically contracted with you to withhold information even if presented with a court order, the contract would be null and void. Contracts that are in deference to the law infer no obligation on either party.
(2) If someone emails you with a credible intent to commit a murder, you're failure to present that to the police does not make you a de facto accessory. In the majority (but not all cases) a failure to act does not impose criminal liability. Most often, you have to give aid, or participate in the planning, with a culpable state of mind to be an accessory. If you go to an extra effort to withhold the evidence, you may be guilty of obstruction of justice. If you intentionally deceive and make false statements about the evidence, you could be charged under one of the many perjury derivatives. (Perjury usually requires a sworn statement, but there are satellite laws that cover filing false reports, etc.) You are correct that someone could come forward with the letter as evidence. This could be very persuasive toward establishing that you were part of a criminal conspiracy. This is especially true if coupled with other circumstantial evidence involving the crime. In mixed situations, your failure to disclose the letter or warn the intended victim could make you a liable for a tort against the victim (and subsequently his estate), or against his close family for wrongful death.
(3) I think you are correct. I have never had a personal account with AOL, but I was with a company that did business with them in '93. I do not recall there ever being a representation that your handle created anonymity. I don't know what AOL considers from their point of view, but it is in issue as to how cozy they are with authorities. The article seems to imply, without overtly stating, that AOL may cooperate in absence of a warrant. Furthermore, the issuance of these broad warrants in frequency and scope appear to tread real close to constitutional violations of search and seizure.
IMHO, I think what scares the pants off of these companies is that they do not kiss the a#$ of the authorities, a zealous prosecutor will hit them with RICO charges. I am not a personal fan of RICO, its too big a weapon in the prosecutors arsenal. Its scope for seizure of personal and corporate assets is far too large, and its burden of proof is entirely too small.
I think you make a valid point; however at the risk of being subjective, I wanted make offer one thought about your assertion, "the only way to support a claim is to check out the references that support that claim." Some epistemology, the philosophical discipline that studies how we gain knowledge, texts state that knowledge can be gained in one of three ways: (1) Faith (2) Logical Deduction (3) Epiphany. Many people will debate about epiphany, but most agree to the first two. Your statement would generally support the logical deduction category. However, at some point we all gain knowledge through faith. Every piece of knowledge we have is not always transversed back to a set of Universal Scientific laws and theories (which, as you state, are based on a certain amount of faith in some cases). I think this where the article makes the analogy to cryptosystems. I think the same level of faith you attribute to the Old Media, can be applied to the individual posters on slashdot. Some Ids have a track record of providing useful and informative information on a consistent basis. When we develop that trust in a poster, we are less likely to follow up on their claims or inferences. As stated in the article, we are more likely to distrust AC postings.
I agree with your premise. A beneviolent dictator can at best only serve during the duration of his lifetime. Since part of the political system is determining succession rights, you must ensure that the system in place guarentees you with a person capable of the same level of efficiency as a leader and beneviolence toward their subjects. Inherently, this policy of succession can be corrupted in the exact same means as other political systems. If we could make the assumption that their would always be the Platonic ideal for a leader; why couldn't we make this assumption with any political system. Could we not have a legislative/parlimentary and judiciary branch filled with platonic ideals for the position. Could we not also have platonically perfect five year plans.
Even with a platonically ideal dictator, they would still have to setup an administration. For their system to work, it would seem that all their subordinates would also have to be platonic ideals. If not, they surely would be vested with enough power to corrupt the system at lower levels. These corruptions could go undiscovered unless they reached a high enough level to gain the dictators view. To prevent this you would have to set up a system of checks and balances underneath the dictator which could be subject to additional corruption.
I think this is an accurate statement. Most major news providers may leen a little to the left or a little to the right in their bias; however, they do seem to paint individuals and causes as aberrent behavior.
This may be a remnant of the "Pleasantville" approach to broadcasting. Try to offend as little people as possible to maintain an audience. Interestingly enough, I think this trend is decreasing. Before the '80s, any news provider that stated a platform was considered an underground source. Their journalists sometimes were even considered unethical. Into the late '80s and '90s more news providers seemed to cater to demographics. Talk radio began to boom, and the internet provided a perfect outlet to choose your filter/provider/editor, etc. Traditional media outlets have tried to catch up a little. You see far more news magazine shows, and many times they will dip down to do features on both sides of the story. Non-comedic talk show hosts increasing dip into the news. They will develop a whole show talking extempereonously about a topic to their political slant. Most of this is still relegated to cable, or radio, but since this generates ratings in valued demographics, the big guys may follow.
Per the essay,/. can improve on these models since the moderation is not relegated to a point of view. I don't know of many places where I can get called a clueless anarchist and a raving right wing republican all within a weeks time.
A good question. I assume that since.com,.org,.gov, and.net were originally registered by US citizenry, while other countries added the.uk,.ca,.au, etc. (not intentionally leaving anyone out), it is kind of landmark for us (US citizens) to reclaim some of our free speech rights.
I do not guess that there is any restriction on anyone using the.com, etc. names; however, the US Federal government may still think it has the right to administer them. If the CA courts ban the use of the names; maybe a non-US/. can try to fight it in an international arena.
Might want to re-read the post AC. A clear distinction is made between representative and popular forms of government; and also between administrative and legislative law.
Taxation is not policy, and if the UN becomes a body that levies taxation, a typical function of legislative bodies of government, citizenry should have more of a direct say in who represents their interest. As it stands, the UN is more analagous to an executory branch of government, which usually can only quasi-tax by setting up fines, fees, and tariffs. That is the point of the message.
At the present time, the UN does not have that power. Even if they adopt a resolution to impose a tax, they theoritically cannot enforce it, they can only encourage the member countries to adopt the tax through their own legislative branch. In this way, it is analagous to how a federal executory department can recommend taxation to congress. The major diversion in analogy occurs because the UN has an army while the FCC does not.
This causes at least a perceived since of danger. By legal realism standards, the UN could theoratically posit their law and maintain it with their army. Granted, at least some armies are reluctant to use force against their countrymen, but this threat is enough to cause some degree of panic. Particularly among many US citizens who, while they may not actively show it, still have a large since of national identity and have their political roots born out of libetarinism.
I do grant their are two problems in the above explanation. First, a pure popular form of government breaks down above a certain threshhold of citizenry. It would take too long to have every person vote and debate on every issue. However, if a semi-autonomous entity even begins to think of recommending taxation legislation, I want more direct representation. I want to vote for the party occupying the seat. I do not want to be represented by a distant emissary.
My vote for the President of the United States is for the chief executive of my political system. For the president to abuse his power (i.e. be a part of any system imposing a legislative function)or not honor the laws of the US, chiefly the constitutional seperation of power, would violate the trust of my agreement, void his oath of office, and subject him/her to grounds of impeachment.
This leads to the second problem, while the FCC does not have an army, the executive branch does, so it could theoretically posit its own laws and ignore the other two branches of government. To my knowledge, this has only been threatend once in American History (re: Andrew Jackson stating to the effect, "I see the Supreme Court has made their decision. Lets see if they can enforce it."), and has never occurred.
My analogies and explanations are based on US political theory and law; however, I hope that some of it will be loosely analagous to other/. readers political systems.
I'm sorry, I don't recall voting for the US Ambassador to the United Nations in the last election. I also do not recall SPECIFICALLY voting for a US representative on XYZ UN councel.Maybe that didn't make the Massachusetts ballet.
As much gridlock as it may cause, I still prefer a popular vote election for representatives rather than any nominated office. This is particularly true for representatives with legislative authority. Taxation would be legislative.
I do not like it, but I can live with a certain amount of adminsitrative law coming from persons either elected or nominated in the executive branch
I think the response you are seeing is b/c ISS fired the first volley. We can expect a certain amount of puffing from a company to appease their customers and ensure market share; however, ISS crossed the line into trash talking.
Comparing the time it took them to isolate a signature from source code and the time it took to write the program is kind of bush league. Insulting the authors is purely juvenile.
If your friends want to poke cDc with a stick they do so at their own peril.
Your assertion is incorrect, "If I where to say to someone "I'm gonna find you and waste your pathetic loser ass into fish food for my pet pirhanas!" that would be a physical threat and I could be charged with assault. "
Assault requires an IMMINENT apprehension of a harmful or offensive contact. This statement does not meet the imminence test unless it also included an overt act. Even saying, "I am going home, getting my knife, and cutting you up in an hour." would not pass the test.
The speaker could be liable for a tort of Intentional Inflection of Emotional Distress if the conduct was outrageous. Also, if it were conducted in some mediums, (i.e. over a telephone), you could be charged with a statute about communicating threats through this medium.
No offense meant. My qualifier of "without supporting or condeming the IRA" was to avoid making a comment about a place in the world that I knew nothing of.
I merely wanted to point out the hypocrisy of US Intelligence and Law Enforcement. One side argues that encryption is a munition; we must make sure our enemies do not have it. For several years, I have supported efforts to get these types of laws repealed. So far, no success. However, by virtue of my losing, and encryption remaining a munition, I should have a constitutional right to keep and bear it.
Without arguing for or against the exceptions to this constitutional right, munitions that are not covered are those capable of mass destruction. The intelligence and law enforcement community want to make encryption on par with automatic weapons -- something they can have and use against their citizenry without the possibility of the citizenry using it against them.
Huh? I don't see how this one plays out. If the employee encrypts information that she stores in the database, she could just as easily store false information and accomplish the same goal without encryption. If an employee encrypts the entire database, they could just as easily delete the db and accomplish the same purpose without encryption. Either way, don't most companies have backups and business continuity plans.
(2)...IRA Terrorists.
Without supporting or condeming the IRA, one persons terrorist is another's freedom fighter. I'm sure 223 years ago, British parliament wanted to keep guns out of the hands of George Washington and those terrorist colonists. In fact, that's why we have the 2nd amendment. Since the NSA keeps arguing that encryption is a munition and subject to export restrictions, wouldn't the general public have a constitutional right to have encryption?
One thing is for sure-- the decision will either stand or fail on appeal. Either way, which way will the direction of new law go. Will we further lose our ability to remain anonymity? Will new circumvention laws require anonymous remailers to maintain a minimum database of information for all users? Will it be a crime to post anonymously to any forum (not so far fetched when you consider some of the encryption laws in affect)?
Or will we see the reverse. Will there be new, expanded internet version of wire tap laws? Net watch services advertise that they monitor IRC conversations (see http//www.ewatch.com). Certainly most parties have the same expectation of privacy that they would have if using a telephone. Its not that far a leap considering our past history. In the early '70s their was a wide opinion that telephone conversations were open prey. Many states currently have laws that forbid the recording of a conversation UNLESS BOTH parties consent to the recording. Should all sites and/or participants disclose their intent as to use of information, or would this be a swing to far in the other direction? Also, would it make a difference if the forum declared itself a news service? If Yahoo, instead of the defendant, had challenged the subpoena based upon the constitutional rights of free press, could they quash the subpoena.
Mr. Gangsta, First let me give you props on two items in your replies to me and AmJur. Then I'll try to explain.
(1) law...doesn't make it constitutional
You are correct. A state can pass a law, and subsequently serve judgement on a law that is unconstitutional. This could be overturned on appeal, and may ultimately make its way outside of the state forum to the supreme court.
Long arm statutes have two forms. The first unnumerate specific powers the state court has. The second take all powers that are granted to it by the consitution.
Think of a Venn diagram. One large circle shows all the jurisdiction any court may have over a person by the constitution. Inside it is a subset circle, this is all the jurisdiction reserved specifically for the federal court.
Now, long arm statute type two, would say that all the remaining area, the state court reserves for itself. Long arm statute type one (the most common) would have you draw another shape. Theoratically, this shape could go outside the original circle, OR intersect with the federal circle. If it does either, the area of the intersection, and the area outside the circle are unconstitutional and could be struck down on a constitutional law appeal.
"Minimum contacts" has been somewhat defined (see #2)
(2) Definition ambiguous...urine example
Contact with the forum state has been defined, and a state may not exercise power unless minimum contacts test has been met.
Depending on the contacts, a person may be subject to either "general jurisdiction" or "specific jurisdiction". If the contacts are large and systematic, a person may face judgement on any issue in the forum state. If they are not high, but at least one contact exists, a person may face jurisdiction, if the action arises out of the contact.
Even with this test, fairness must still be considered. Thus, the test a court applies is whether the defendant could foresee that he may face action in the forum state. Thus, in your urine example, you would not likely face jurisdiction.
You are correct, there is some amiiguity. There is no precise number of contacts, or quantifyable level of fairness that can be mathematically applied. There are a lot of greater than/less than tests that can be used. For instance, a parts manufacturer that sells exclusively to a company in one state, will not face jurisdiction in every state that the other company has to market to. Since all philosophical, and quantum physics arguments are less than this threshhold, we now they will not apply.
Conversely, a franchisee that signs a contract with a franchisor, but never steps foot in the franchisor's state, can be subject to jurisdiction on issues related to that contract. It appears the AOL case is above this threshold.
Finally, the US does not have a civil law system. It does not assume that all laws passed by congress will apply to all situations. We recognize that the court system will fill in the gaps.
Slashdot Mirror
Since your reaction is to be litigious, I will start with the normal boring disclaimer. I am not a lawyer nor am I licensed to practice law in any state.
/. complain vigorously about ISPs censoring content. The reason most of them do it is not b/c they are morally against the content, but they want to protect themselves from potential lawsuits. Your ISP stands up to this and fights for free speech.
To answer your question:
If they intentionally misrepresented a material fact of the contract by concealing information from you, you may be able to have the contract rescinded. In which case, you would still be obligated to pay the ISP a fair amount for the service you received. You could receive the difference between this and what was paid.
If they committed fraud by telling you that they were not blocked, they could also be liable for punitive damages. This does not seem to be the case from your story. Note, puffing does not count. For instance, if they told you that they were the best ISP in the city, or another grandiose claim that does not misrepresent material fact they would not have committed misrepresentation or fraud.
If they specifically contracted with you (written or orally) and or provided some guarentee that your page would not be blocked by CyberPatrol or other filter product, they would be in breach. In which case, they could be liable for expectancy damages. Thus, how much you could have made had the breach not occurred. It would be your burden to prove this, and the level required would be pretty high.
Please consult with a licensed attorney to verify the above information.
Now, could you not think of a response that did not involve a legal action against your ISP. Did they really harm you? Did they do anything unreasonable? Most
If you go after them, they still have legal fees. If they do not fight and return your money they have still lost money just for making a moral stand. This will probably happen more than once and they will have two choices: go bankrupt or implement decency terms of service.
Regardless of your assertion, you are doing business with the headhunter. They will provide you a service for which they get payment. Maybe you aren't writing the check, but they are selling your good name.
Thus, your proposed question would end up with this result:
(1) Supporting a company that censors content. The headhunter who makes money off your name.
(2) Punishing a company that supports free speech. Your ISP by trying to get money from them.
Please consider some other options:
(1) Post your resume on a free page
(2) Fax it to the company
(3) Refuse to do business with anyone that supports censorship.
I'm sure that many sites would love to be at .sex. Unfortunately, I would be afraid to see this implemented. We would end up with an MPAA style fiasco. Legitimate artistic sites would rather be at a .com (or .art). Some people could find these to be sexually explicit. Thus, it would either be approved by an all knowing body, which I doubt you would want. Or, it would still create a market demand for censor products in the .com space.
Although Mr. Katz does not come out and use these terms, he does point a difference between media sensationalism, and event participatation. This is where the new technology draws the difference.
In other posts, a referenced http://www.ctheory.com, a journal that covers this topic exclusively. There was a story that I once read there about the gulf war, and how it was different b/c it was in our living rooms. It points out how this phenomona began with Vietnam and the near time coverage.
Good or bad judgements aside, the Kennedy coverage allowed us to vicariously experience the grief that his family went through. It wasn't News as much as participation. There were a large number of people that stayed glued to the television, and vicariously experienced the same grief and tragedy that close family members would have felt. They were able to get information slowly leeked to them and the silence (periods of inactivity) served to build the emotional crescendo.
I will admit, the media did oversensationalize the issue to push this emotion onto people that otherwise would not have been able to grasp. Its ashamed that this occurred at sources that we depend on for more serious coverage of events.
Thankfully, we do have other options. Since I did not care to be a part of this reactive theatre. I played with my son,listened to NPR, read slashdot, went to work, and watched a couple of movies.
Before I found slashdot, I use to lurk at http://www.ctheory.com. Its an academic treatment of how technology affects culture and creates cultural change. For those interested in the subject, you may want to thumb through it. Its banner theory, technology, culture.
You can fight it. There are tons of ways. Commit time or resources to organizations that fight these laws in a peaceful manner (Consider the ACLU or EFF). Email, fax, and call your congressional representatives. Let them know you vote and you care about your civil liberties. Start your own action groups, and raise awareness of liberty issues. If you really think this is important, take it to court. Fighting for liberty is like having children. You don't think you have the money to do it, but after you commit you find a way to make it happen.
Make your voice heard and fight for liberty.
Wait for about three years. There will be an article on Slashdot "Congress Considers outlawing identity modification. Current legislation sponsored by Jesse Lamar Hitler would make it a federal crime punishable with death by torture for persons to modify their phenotype characteristics without consent from the government. Hitler states that sandpapering fingerprints has become a serious problem for National Security." First post reads, "Its really not that bad an idea. Consider that they have all that information anyway. If your a law abiding citizen, you don't have anything to worry about."
You do have an option. In fact, the RMV employees should explicitly ask if you want to use your SSN or another number (which they call random).
I honestly think we'd be in a worse position. Today, we have a body of law that is being challenged with some success in the judiciary branch. I don't know if the evolution of this would repeal crypto-export restrictions, but a new legislation would render a lot of this work null and void. You would have to litigate the new law all over again, and maybe not have the same success.
Additionally all the other arguments about presidential control would still apply.
What scares me even more is bullet #5. What sectors would be subject to license free treatment of encryption products above the threshold, consistent with US policy? Can you imagine the abuse and administration needed to establish this objective. First, you would have to have a committee to classify and recommend sectors. Is Be an OS, multimedia product, internet browser, etc. Is it all of the above. A new corporate legal war emerges to determine product's class and industry sector. Until now, we left this to the marketing departments and trade journals. It would now be an issue of law.
Furthermore, think of the political lobbies necessary to get sector or product exemption. It could be prohibitive for all but large companies to lobby for an exemption. This is just for the legal methods. Imagine the abuse possible for illegal methods... bribery of officials, back corner deals to escrow keys with the NSA.
As mentioned previously, it would also be a first step toward controls for domestic encryption controls.
Let me first state, I am not at all a fan of AOL. However, as I stated in another post, I think the reason they keep the email logs is fear of prosecution on themselves, particularly under RICO statutes. Not too long ago, Ebay caught the justice departments' scrutiny because their customers were selling stolen merchandise. Courts do not look favorably on willful blindness, and there are even ostrich laws in some states against willful blindness.
A clever prosecutor could argue that: (1) Its common knowledge that criminals engage in conspiracy using the AOL service (2) It would take little effort for AOL to maintain email logs (3) They intentionally looked in the other direction to allow this activity to occur and further their business interests. Prosecuted under RICO, they could seize most of the corporate assets and possibly even the private assets of the executives. The executives would have the burden of proof of showing that their assets were not fruits of the criminal activity.
Personally, I wish AOL would show a little fortitude and act in the interest of personal privacy. I think that's the trade off you have whenever you choose a big, public business as a service provider. While you may get some corporate stability and perhaps additional services, you can expect them to CYA when push comes to shove.
(1) AOL's policy is located on the article page. In short, they only release emails on a warrant, and will release identities even in a civil action. Even if AOL never stated a policy and specifically contracted with you to withhold information even if presented with a court order, the contract would be null and void. Contracts that are in deference to the law infer no obligation on either party.
(2) If someone emails you with a credible intent to commit a murder, you're failure to present that to the police does not make you a de facto accessory. In the majority (but not all cases) a failure to act does not impose criminal liability. Most often, you have to give aid, or participate in the planning, with a culpable state of mind to be an accessory. If you go to an extra effort to withhold the evidence, you may be guilty of obstruction of justice. If you intentionally deceive and make false statements about the evidence, you could be charged under one of the many perjury derivatives. (Perjury usually requires a sworn statement, but there are satellite laws that cover filing false reports, etc.) You are correct that someone could come forward with the letter as evidence. This could be very persuasive toward establishing that you were part of a criminal conspiracy. This is especially true if coupled with other circumstantial evidence involving the crime. In mixed situations, your failure to disclose the letter or warn the intended victim could make you a liable for a tort against the victim (and subsequently his estate), or against his close family for wrongful death.
(3) I think you are correct. I have never had a personal account with AOL, but I was with a company that did business with them in '93. I do not recall there ever being a representation that your handle created anonymity. I don't know what AOL considers from their point of view, but it is in issue as to how cozy they are with authorities. The article seems to imply, without overtly stating, that AOL may cooperate in absence of a warrant. Furthermore, the issuance of these broad warrants in frequency and scope appear to tread real close to constitutional violations of search and seizure.
IMHO, I think what scares the pants off of these companies is that they do not kiss the a#$ of the authorities, a zealous prosecutor will hit them with RICO charges. I am not a personal fan of RICO, its too big a weapon in the prosecutors arsenal. Its scope for seizure of personal and corporate assets is far too large, and its burden of proof is entirely too small.
I think you make a valid point; however at the risk of being subjective, I wanted make offer one thought about your assertion, "the only way to support a claim is to check out the references that support that claim." Some epistemology, the philosophical discipline that studies how we gain knowledge, texts state that knowledge can be gained in one of three ways: (1) Faith (2) Logical Deduction (3) Epiphany. Many people will debate about epiphany, but most agree to the first two. Your statement would generally support the logical deduction category. However, at some point we all gain knowledge through faith. Every piece of knowledge we have is not always transversed back to a set of Universal Scientific laws and theories (which, as you state, are based on a certain amount of faith in some cases).
I think this where the article makes the analogy to cryptosystems. I think the same level of faith you attribute to the Old Media, can be applied to the individual posters on slashdot. Some Ids have a track record of providing useful and informative information on a consistent basis. When we develop that trust in a poster, we are less likely to follow up on their claims or inferences. As stated in the article, we are more likely to distrust AC postings.
I agree with your premise. A beneviolent dictator can at best only serve during the duration of his lifetime. Since part of the political system is determining succession rights, you must ensure that the system in place guarentees you with a person capable of the same level of efficiency as a leader and beneviolence toward their subjects. Inherently, this policy of succession can be corrupted in the exact same means as other political systems. If we could make the assumption that their would always be the Platonic ideal for a leader; why couldn't we make this assumption with any political system. Could we not have a legislative/parlimentary and judiciary branch filled with platonic ideals for the position. Could we not also have platonically perfect five year plans.
Even with a platonically ideal dictator, they would still have to setup an administration. For their system to work, it would seem that all their subordinates would also have to be platonic ideals. If not, they surely would be vested with enough power to corrupt the system at lower levels. These corruptions could go undiscovered unless they reached a high enough level to gain the dictators view. To prevent this you would have to set up a system of checks and balances underneath the dictator which could be subject to additional corruption.
I think this is an accurate statement. Most major news providers may leen a little to the left or a little to the right in their bias; however, they do seem to paint individuals and causes as aberrent behavior.
/. can improve on these models since the moderation is not relegated to a point of view. I don't know of many places where I can get called a clueless anarchist and a raving right wing republican all within a weeks time.
This may be a remnant of the "Pleasantville" approach to broadcasting. Try to offend as little people as possible to maintain an audience. Interestingly enough, I think this trend is decreasing. Before the '80s, any news provider that stated a platform was considered an underground source. Their journalists sometimes were even considered unethical. Into the late '80s and '90s more news providers seemed to cater to demographics. Talk radio began to boom, and the internet provided a perfect outlet to choose your filter/provider/editor, etc. Traditional media outlets have tried to catch up a little. You see far more news magazine shows, and many times they will dip down to do features on both sides of the story.
Non-comedic talk show hosts increasing dip into the news. They will develop a whole show talking extempereonously about a topic to their political slant. Most of this is still relegated to cable, or radio, but since this generates ratings in valued demographics, the big guys may follow.
Per the essay,
Wish I had moderator points to give. That's great info.
A good question. I assume that since .com, .org, .gov, and .net were originally registered by US citizenry, while other countries added the .uk, .ca, .au, etc. (not intentionally leaving anyone out), it is kind of landmark for us (US citizens) to reclaim some of our free speech rights.
.com, etc. names; however, the US Federal government may still think it has the right to administer them. If the CA courts ban the use of the names; maybe a non-US /. can try to fight it in an international arena.
I do not guess that there is any restriction on anyone using the
What's a Chutney-Ferret?
Might want to re-read the post AC. A clear distinction is made between representative and popular forms of government; and also between administrative and legislative law.
/. readers political systems.
Taxation is not policy, and if the UN becomes a body that levies taxation, a typical function of legislative bodies of government, citizenry should have more of a direct say in who represents their interest. As it stands, the UN is more analagous to an executory branch of government, which usually can only quasi-tax by setting up fines, fees, and tariffs. That is the point of the message.
At the present time, the UN does not have that power. Even if they adopt a resolution to impose a tax, they theoritically cannot enforce it, they can only encourage the member countries to adopt the tax through their own legislative branch. In this way, it is analagous to how a federal executory department can recommend taxation to congress. The major diversion in analogy occurs because the UN has an army while the FCC does not.
This causes at least a perceived since of danger. By legal realism standards, the UN could theoratically posit their law and maintain it with their army. Granted, at least some armies are reluctant to use force against their countrymen, but this threat is enough to cause some degree of panic. Particularly among many US citizens who, while they may not actively show it, still have a large since of national identity and have their political roots born out of libetarinism.
I do grant their are two problems in the above explanation. First, a pure popular form of government breaks down above a certain threshhold of citizenry. It would take too long to have every person vote and debate on every issue. However, if a semi-autonomous entity even begins to think of recommending taxation legislation, I want more direct representation. I want to vote for the party occupying the seat. I do not want to be represented by a distant emissary.
My vote for the President of the United States is for the chief executive of my political system. For the president to abuse his power (i.e. be a part of any system imposing a legislative function)or not honor the laws of the US, chiefly the constitutional seperation of power, would violate the trust of my agreement, void his oath of office, and subject him/her to grounds of impeachment.
This leads to the second problem, while the FCC does not have an army, the executive branch does, so it could theoretically posit its own laws and ignore the other two branches of government. To my knowledge, this has only been threatend once in American History (re: Andrew Jackson stating to the effect, "I see the Supreme Court has made their decision. Lets see if they can enforce it."), and has never occurred.
My analogies and explanations are based on US political theory and law; however, I hope that some of it will be loosely analagous to other
I'm sorry, I don't recall voting for the US Ambassador to the United Nations in the last election. I also do not recall SPECIFICALLY voting for a US representative on XYZ UN councel.Maybe that didn't make the Massachusetts ballet.
As much gridlock as it may cause, I still prefer a popular vote election for representatives rather than any nominated office. This is particularly true for representatives with legislative authority. Taxation would be legislative.
I do not like it, but I can live with a certain amount of adminsitrative law coming from persons either elected or nominated in the executive branch
I think the response you are seeing is b/c ISS fired the first volley. We can expect a certain amount of puffing from a company to appease their customers and ensure market share; however, ISS crossed the line into trash talking.
Comparing the time it took them to isolate a signature from source code and the time it took to write the program is kind of bush league. Insulting the authors is purely juvenile.
If your friends want to poke cDc with a stick they do so at their own peril.
Your assertion is incorrect,
"If I where to say to someone "I'm gonna find you and waste your pathetic loser ass into fish food for my pet pirhanas!" that would be a physical threat and I could be charged with assault. "
Assault requires an IMMINENT apprehension of a harmful or offensive contact. This statement does not meet the imminence test unless it also included an overt act. Even saying, "I am going home, getting my knife, and cutting you up in an hour." would not pass the test.
The speaker could be liable for a tort of Intentional Inflection of Emotional Distress if the conduct was outrageous. Also, if it were conducted in some mediums, (i.e. over a telephone), you could be charged with a statute about communicating threats through this medium.
No offense meant. My qualifier of "without supporting or condeming the IRA" was to avoid making a comment about a place in the world that I knew nothing of.
I merely wanted to point out the hypocrisy of US Intelligence and Law Enforcement. One side argues that encryption is a munition; we must make sure our enemies do not have it. For several years, I have supported efforts to get these types of laws repealed. So far, no success. However, by virtue of my losing, and encryption remaining a munition, I should have a constitutional right to keep and bear it.
Without arguing for or against the exceptions to this constitutional right, munitions that are not covered are those capable of mass destruction. The intelligence and law enforcement community want to make encryption on par with automatic weapons -- something they can have and use against their citizenry without the possibility of the citizenry using it against them.
US Law Enforcement and Intelligence loves to play all sides of the encryption argument. Look at some of their sites and examples.
(1)...Disgruntled employee corrupts corporate database.
Huh? I don't see how this one plays out. If the employee encrypts information that she stores in the database, she could just as easily store false information and accomplish the same goal without encryption. If an employee encrypts the entire database, they could just as easily delete the db and accomplish the same purpose without encryption. Either way, don't most companies have backups and business continuity plans.
(2)...IRA Terrorists.
Without supporting or condeming the IRA, one persons terrorist is another's freedom fighter. I'm sure 223 years ago, British parliament wanted to keep guns out of the hands of George Washington and those terrorist colonists. In fact, that's why we have the 2nd amendment. Since the NSA keeps arguing that encryption is a munition and subject to export restrictions, wouldn't the general public have a constitutional right to have encryption?
One thing is for sure-- the decision will either stand or fail on appeal. Either way, which way will the direction of new law go. Will we further lose our ability to remain anonymity? Will new circumvention laws require anonymous remailers to maintain a minimum database of information for all users? Will it be a crime to post anonymously to any forum (not so far fetched when you consider some of the encryption laws in affect)?
Or will we see the reverse. Will there be new, expanded internet version of wire tap laws? Net watch services advertise that they monitor IRC conversations (see http//www.ewatch.com). Certainly most parties have the same expectation of privacy that they would have if using a telephone.
Its not that far a leap considering our past history. In the early '70s their was a wide opinion that telephone conversations were open prey. Many states currently have laws that forbid the recording of a conversation UNLESS BOTH parties consent to the recording. Should all sites and/or participants disclose their intent as to use of information, or would this be a swing to far in the other direction?
Also, would it make a difference if the forum declared itself a news service? If Yahoo, instead of the defendant, had challenged the subpoena based upon the constitutional rights of free press, could they quash the subpoena.
Mr. Gangsta,
First let me give you props on two items in your replies to me and AmJur. Then I'll try to explain.
(1) law...doesn't make it constitutional
You are correct. A state can pass a law, and subsequently serve judgement on a law that is unconstitutional. This could be overturned on appeal, and may ultimately make its way outside of the state forum to the supreme court.
Long arm statutes have two forms. The first unnumerate specific powers the state court has. The second take all powers that are granted to it by the consitution.
Think of a Venn diagram. One large circle shows all the jurisdiction any court may have over a person by the constitution. Inside it is a subset circle, this is all the jurisdiction reserved specifically for the federal court.
Now, long arm statute type two, would say that all the remaining area, the state court reserves for itself. Long arm statute type one (the most common) would have you draw another shape. Theoratically, this shape could go outside the original circle, OR intersect with the federal circle. If it does either, the area of the intersection, and the area outside the circle are unconstitutional and could be struck down on a constitutional law appeal.
"Minimum contacts" has been somewhat defined (see #2)
(2) Definition ambiguous...urine example
Contact with the forum state has been defined, and a state may not exercise power unless minimum contacts test has been met.
Depending on the contacts, a person may be subject to either "general jurisdiction" or "specific jurisdiction". If the contacts are large and systematic, a person may face judgement on any issue in the forum state. If they are not high, but at least one contact exists, a person may face jurisdiction, if the action arises out of the contact.
Even with this test, fairness must still be considered. Thus, the test a court applies is whether the defendant could foresee that he may face action in the forum state. Thus, in your urine example, you would not likely face jurisdiction.
You are correct, there is some amiiguity. There is no precise number of contacts, or quantifyable level of fairness that can be mathematically applied. There are a lot of greater than/less than tests that can be used. For instance, a parts manufacturer that sells exclusively to a company in one state, will not face jurisdiction in every state that the other company has to market to. Since all philosophical, and quantum physics arguments are less than this threshhold, we now they will not apply.
Conversely, a franchisee that signs a contract with a franchisor, but never steps foot in the franchisor's state, can be subject to jurisdiction on issues related to that contract. It appears the AOL case is above this threshold.
Finally, the US does not have a civil law system. It does not assume that all laws passed by congress will apply to all situations. We recognize that the court system will fill in the gaps.
Hope this helps.
Just cause the legislature says so, doesn't make it constitutional. I agree with the majority here. Crim law is a whole different ball of wax.