That's all fine and dandy, if they do that with a warrant in hand.
Warrants require a court to make a determination of probable cause. It is exceedingly unlikely that any court (including the conservative ones) would find probable cause in a request for aggregate data, because there is nothing to suggest that every single customer of Generic Mediterranean Market is engaged in illegal activity.
So, when they can't get the data by warrant, they either ask for it, or Congress imposes a duty on businesses to provide it (e.g. National Security Letters). Just like the Continental Congress intended.
Prosection [sic] - The commencement and carrying out of any action or scheme. Black's Law.
Black's Law Dictionary has four definitions for "prosecution," which are:
The commencement and carrying out of any action or scheme \.
A criminal proceeding in which an accused person is tried \. -- Also termed criminal prosecution.
The government attorneys who initiate and maintain a criminal action against an accused defendant \.
Patents. The process of applying for a patent through the U.S. Patent and Trademark Office and negotiating with the patent examiner. -- Also termed patent-prosecution process.
The first definition is defining the general usage of the the word. For example, "the Plaintiff's attorney prosecuted his point before the judge."
The second definition is the legal term used to denote the actual criminal proceeding of the state prosecuting someone in a court of law.
The third definition refers to the party bringing the trial against the defendant.
The fourth isn't germane to our discussion, but I thought I'd include it to be thorough.
So, either you just wanted to be contrarian and therefore only included the definition that more or less aided this purpose (when viewed out of context) or you didn't read the whole definition.
Given appropriate facts, a civil defendant may be punished in the form of punitive damages.
Black's Law Dictionary also defines punishment, sentence and punitive damages. Here, the ground is slightly firmer under your feet:
punishment, n. 1. A sanction -- such as a fine, penalty, confinement, or loss of property, right, or privilege -- assessed against a person who has violated the law. See SENTENCE.
sentence, n. The judgment that a court formally pronounces after finding a criminal defendant guilty; the punishment imposed on a criminal wrongdoer . See Fed. R. Crim. P. 32. -- Also termed judgment of conviction.
punitive damages. Damages awarded in addition to actual damages when the defendant acted with recklessness, malice, or deceit; specif., damages assessed by way of penalizing the wrongdoer or making an example to others. Punitive damages, which are intended to punish and thereby deter blameworthy conduct, are generally not recoverable for breach of contract. The Supreme Court has held that three guidelines help determine whether a punitive-damages award violates constitutional due process: (1) the reprehensibility of the conduct being punished; (2) the reasonableness of the relationship between the harm and the award; and (3) the difference between the award and the civil penalties authorized in comparable cases. BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589 (1996). -- Also termed exemplary damages; vindictive damages; punitory damages; presumptive damages; added damages; aggravated damages; speculative damages; imaginary damages; smart money; punies. [Cases: Damages 87-94. C.J.S. Damages 183, 195-217.] "Although compensatory damages and punitive damages are typically awarded at the same time by the same decisionmaker, they serve distinct purposes. The former are intended to redress the concrete loss that the plaintiff has suffered by reason of the defendant's wrongful conduct. The latter, which have been described as 'quasi-criminal,' operate as 'private fines' intended to punish the defendant and to deter future wrongdoing. A jury's assessment of the extent of a plaintiff's injuries is essentially a factual determination, whereas its imposition of punitive damages is an expression of its moral condemnation." Cooper Indus. v. Leatherman Tool, 532 U.S. 424, 432, 121 S.Ct. 1678, 1683 (2001) (per Stephens, J.).
[note: I did not provide the full listings from the entries for prosecution, punishment, sentence or punitive damages, as they are each long and contain sub-definitions not central to this discussion. Please feel free to look the
Okay, time for a language lesson so that [some] of you might at least sound like you know what you are talking about.
This was a civil trial, not a criminal trial. In civil trials:
The parties are referred to as plaintiffs and the defendants. There is no prosecution.
There is no finding of guilt, only of liability. Guilt is a term used in criminal trials
There is no punishment, only damages. Punishment is a term used in criminal trials
To sum up:
In criminal trials, the prosecution seeks a finding of guilt and, if found, the court then imposes a punishment.
In civil trials, the plaintiff seeks a finding of fault and, if found, the court imposes damages.
When you mix these terms up you sound ignorant, like when your mother confuses the difference between USB and ethernet cables or your sister confuses the terms uploading and downloading.
"You can't say that because she was found to be guilty that she committed the offense."
Leaving aside the use of the word guilt for the moment (guilt would be appropriate in a criminal trial and not a civil trial), yes, I can and will say that she was found to be responsible for illegally sharing copyrighted music files. I don't agree with the investigatorial tactics used by the RIAA or the application of statutory damages, but I'm not about to chuck the U.S. Civil Justice system out, whole cloth, over it. Get a grip.
Oh yeah?! My degree is in Political Science!
[ducks]
Actually, when you really start to examine what makes science science, it can get confusing real quick. Anyone who is interested should read What is this thing called Science? I find myself plugging this book on/. about once a quarter nowadays.
Snarky comebacks have little effect when I mispell words, eh? In my defense (what little there can be), I was suffering from a massive headache at the time I submitted my comment. Thanks for the correction.
Do you mean that systems that don't require a JTAG to fix a botched firmware update, by nature of this requirement, are superior products favored by consumers and destined to control the market?
OR
Do you mean that products that require a JTAG to fix a botched firmware update, by nature of this requirement, are causing harm so severe that the government should step and regulate?
Just curious if you're advocating that the gubmint should get involved?
Whose economic theory posits that patents don't "promote the progress of science and useful arts?" And if you don't promote the progress of software via patents, how do you do it? There is a wide gulf between the statements "software patents are an inherently bad idea, because they don't serve the purpose they are intended to serve," and "all patents are bad."
Why do these economic theories argue against patent systems? Is their argument actually economic or is it an argument against restricting freedoms?
Sure, it would be better to abolish the patent system altogether as it is not justified for software at all. But unfortunately Microsoft does not support this. Anyway, let's better get what you can, and set up a real campaign against US software patents. All experts agree that the Us patent system needs reforms.
I'm confused. Are you saying the entire patent system should be abolished or that software shouldn't be patentable?
Social scientists use "religiosity" to describe study participants strength of belief. For consistency, I propose following their lead by using the term "nerdity".
When you say "How could any responsible and culturally literate individual not be somewhat of a relativist?" you are making an appeal to an absolute standard. Like, you know, moral absolutists do.
I aplaud your willingness to take a skeptical view of claims made by science. I would, in fact, extend this idea to say that all claims made by humanity should be viewed skeptically, be they religious, scientific, philosophical or historical. What you are criticizing is the uncertainty (or doubt) inherent in all of the endeavors of mankind. Pardon me for my boldness, but I would like to offer a book recommendation that might help you to understand where mankind is in terms of the epistemological underpinnings of science. This book talks about the uncertainty inherent in all scientific facts and how that then informs the conclusions drawn while analyzing those facts. I don't want to tell you what to think and I don't want to push you into intellectul pursuits in which you have no interest. But if you are serious about criticizing science, this book presents as succinct and well-written an account of how scientists have defended the value of their pursuits as I have encountered. I always find that the best way to criticize something or someone is to, as fully as is possible, understand the arguments that they are making.
The book I'm talking about is called "What Is This Thing Called Science?". It was written by A.F. Chalmers. I commend this work to you and anyone else reading this post that has an interest in understanding how scientits can claim the knowledge that they claim.
A good reply! Thanks for the well-thought out response.
As for the RIAA fears, I mostly chalk those comments up to the Slashdot RIAA conspiracy mania and tend to ignore them. I do agree that when the user is in the university's house (as you put it), they are, by definition, giving up some privacy. The hypothetical I posed (someone living in off campus private housing) was designed to focus in on the question I find so compelling in this story: To what extent does this ruling affect the admissibility of the evidence in a future case with similar, but not identical, circumstances? I think the controversy is in determining how much privacy best satisfies all parties involved.
Moreover, I tried to make my prior posting consistent with the fact that this incident took place in 1999. Even so, I still think that any justification for a system adminstrator breaking in to a user's computer should be fully scrutinized, batted back and forth and discussed. Here, in the real world and in the courts. And since that debate is what we all appeared to be engaged in, the system appears to be working. Also, if I jumped the gun on implying the ruling was being construed as a blank check on system admin vigilantism, I apologize. I didn't mean to state that quite so forcefully, but as more of a gentle reminder. That said, I do think calling counter-hacking an "unorthodox response" engages in euphamism that strains normal conceptions of right and wrong, even in exigent circumstances.
Finally, I'm still curious about the initially defensive nature of your first post. I'm not trying to step on toes here, but I would like to know what prompted that tone out of the gate. Was it a reflexive response to a presumption (potentially a good one) that Slashdotters would jump to the predictable and wrong-headed conclusion that Heckencamp's rights were violated or was it something else?
I have read TFA and I agree with the holding in this case. I even agree that, given the context, Savoy's actions were justified. But, this holding does not exonerate counter-hacking in general. At the bottom of the article, there is a link to another article discussing why vigilantism is a poor response to cyberattcks. I suggest all interested parties read that freaking article, too.
The truth is, change a few facts in this case (say, the terms in the University's network access or housing agreements) and you get an entirely different scenario. In your posting, you said:
If you hack University servers from your computer (or even if the computer is being used a zombie), and then take steps to hide your identity or otherwise conceal your activities, your network access will be removed, such removal will be actively enforced and verified, and any immediate actions required to protect the security and integrity of the University network and computing resources will be taken [emphasis added].
But, if the attacker lives off-campus (say, on Mifflin Street) and was accessing the University through, say, a shell account, then only the network access agreement governs the University response. Does the university still have a contractual right to hack the student's computer? Their shell account is probably up for grabs, but, hopefully, not their home computer. And if the home computer is legally vulnerable, then perhaps the student government needs to step in and discuss these terms with the University's administration. I am not convinced that either public policy or the student's best interests are served by an agreement that allows even fettered access to a computer that is not physically, directly connected to the University network without first obtaining a warrant.
The concerns expressed here on Slashdot only serve to highlight the fact that the law is always trying to catch up to the real world. Accordingly, I was a bit confused by the defensive stance taken in your initial post and could not help but feel that you were trying to imply that nearly any means undertaken by the University IT department are justified to protect the network. If I misconstrued the tenor of your posting, please chalk it up to the especially weak cup of coffee I had this morning. If I did not, then I can only say that your immediate defensive posture should be a concern for any UW students reading this board. This ruling does not provide University IT staff carte blanche access to student computers. Furthermore, many of the questions posed by other Slashdotters are valid concerns and should, perhaps, be given due consideration, rather than shouting "RTFA" everytime one of them questions the situation.
How about a dialog, rather than a shouting match? ("You must be new here" posts to follow.)
Before you go off on another rant, stigmatizing and denouncing DRM-free downloads from Apple and EMI for being more expensive than the DRM versions of the same songs, please consider that this was an unthinkable turn of events 18 months ago. Accept this news for what it is, an incremental improvement in digital music offerings. What, did you think that the entire music industry was going to turn on a dime to meet your whims? Regardless of the merits of either side, expecting either position to completely fold in one fell swoop is, at best, naive.
This is a WIN!
Just because the consumer side didn't get everything they want doesn't lessen the benefit of this win. This news can be celebrated without criticism while still pointing out that more is needed. If one considers this news from a more expansive perspective, one might see that this is but one of many events in this ongoing debate, not the last word, but one of the first.
Please, please, please, be patient with the music industry, where many seem to be coming around to the idea that consumers need to be satisfied and respected. In other words, exercising context, perspective and patience needn't blunt one's ardor and focus on the issue, but, perhaps, they might blunt the strongest voices denying the benefit gained because their demands were not completely satisfied.
Slashdot Mirror
Warrants require a court to make a determination of probable cause. It is exceedingly unlikely that any court (including the conservative ones) would find probable cause in a request for aggregate data, because there is nothing to suggest that every single customer of Generic Mediterranean Market is engaged in illegal activity.
So, when they can't get the data by warrant, they either ask for it, or Congress imposes a duty on businesses to provide it (e.g. National Security Letters). Just like the Continental Congress intended.
Black's Law Dictionary has four definitions for "prosecution," which are:
So, either you just wanted to be contrarian and therefore only included the definition that more or less aided this purpose (when viewed out of context) or you didn't read the whole definition.
Black's Law Dictionary also defines punishment, sentence and punitive damages. Here, the ground is slightly firmer under your feet:
"Although compensatory damages and punitive damages are typically awarded at the same time by the same decisionmaker, they serve distinct purposes. The former are intended to redress the concrete loss that the plaintiff has suffered by reason of the defendant's wrongful conduct. The latter, which have been described as 'quasi-criminal,' operate as 'private fines' intended to punish the defendant and to deter future wrongdoing. A jury's assessment of the extent of a plaintiff's injuries is essentially a factual determination, whereas its imposition of punitive damages is an expression of its moral condemnation." Cooper Indus. v. Leatherman Tool, 532 U.S. 424, 432, 121 S.Ct. 1678, 1683 (2001) (per Stephens, J.).
[note: I did not provide the full listings from the entries for prosecution, punishment, sentence or punitive damages, as they are each long and contain sub-definitions not central to this discussion. Please feel free to look the
This was a civil trial, not a criminal trial. In civil trials:
To sum up:
When you mix these terms up you sound ignorant, like when your mother confuses the difference between USB and ethernet cables or your sister confuses the terms uploading and downloading.
"Your mother" jokes to follow, I'm sure.
District court rulings aren't binding on other district courts. See Wikipedia or The 'Lectric Law Library descriptions of precedent.
"You can't say that because she was found to be guilty that she committed the offense."
Leaving aside the use of the word guilt for the moment (guilt would be appropriate in a criminal trial and not a civil trial), yes, I can and will say that she was found to be responsible for illegally sharing copyrighted music files. I don't agree with the investigatorial tactics used by the RIAA or the application of statutory damages, but I'm not about to chuck the U.S. Civil Justice system out, whole cloth, over it. Get a grip.
Are you running Mac OS X Server, by any chance? That's one thing that would cause your issue.
What?!! Here?!! On Slashdot?!! I never...I just never thought anything like that could ever happen here.
OR
You must be new here.
Oh yeah?! My degree is in Political Science!
/. about once a quarter nowadays.
[ducks]
Actually, when you really start to examine what makes science science, it can get confusing real quick. Anyone who is interested should read What is this thing called Science? I find myself plugging this book on
Snarky comebacks have little effect when I mispell words, eh? In my defense (what little there can be), I was suffering from a massive headache at the time I submitted my comment. Thanks for the correction.
This is a perfect example of how bad patent laws and poor bureaucratic administartion utterly destroy innovation.
Fixed for you.
What do you mean by unacceptable?
Do you mean that systems that don't require a JTAG to fix a botched firmware update, by nature of this requirement, are superior products favored by consumers and destined to control the market?
OR
Do you mean that products that require a JTAG to fix a botched firmware update, by nature of this requirement, are causing harm so severe that the government should step and regulate?
Just curious if you're advocating that the gubmint should get involved?
Jack Thompson is the real public nusiance.
Or summarily deported to North Korea.
Whose economic theory posits that patents don't "promote the progress of science and useful arts?" And if you don't promote the progress of software via patents, how do you do it? There is a wide gulf between the statements "software patents are an inherently bad idea, because they don't serve the purpose they are intended to serve," and "all patents are bad."
Why do these economic theories argue against patent systems? Is their argument actually economic or is it an argument against restricting freedoms?
How much was the bet for?
A dollar!
I'm confused. Are you saying the entire patent system should be abolished or that software shouldn't be patentable?
"A better question would be why the rest of the world has singularly failed to take libertarianism seriously. I have some ideas on that..."
Yes, the ideals of Hobbes, Locke, Mill and Smith are so passe outside of the U.S. </sarcasm-off>
Well...
Social scientists use "religiosity" to describe study participants strength of belief. For consistency, I propose following their lead by using the term "nerdity".
Spoken like a true libertarian.
When you say "How could any responsible and culturally literate individual not be somewhat of a relativist?" you are making an appeal to an absolute standard. Like, you know, moral absolutists do.
Jarjarthejedi,
I aplaud your willingness to take a skeptical view of claims made by science. I would, in fact, extend this idea to say that all claims made by humanity should be viewed skeptically, be they religious, scientific, philosophical or historical. What you are criticizing is the uncertainty (or doubt) inherent in all of the endeavors of mankind. Pardon me for my boldness, but I would like to offer a book recommendation that might help you to understand where mankind is in terms of the epistemological underpinnings of science. This book talks about the uncertainty inherent in all scientific facts and how that then informs the conclusions drawn while analyzing those facts. I don't want to tell you what to think and I don't want to push you into intellectul pursuits in which you have no interest. But if you are serious about criticizing science, this book presents as succinct and well-written an account of how scientists have defended the value of their pursuits as I have encountered. I always find that the best way to criticize something or someone is to, as fully as is possible, understand the arguments that they are making.
The book I'm talking about is called "What Is This Thing Called Science?". It was written by A.F. Chalmers. I commend this work to you and anyone else reading this post that has an interest in understanding how scientits can claim the knowledge that they claim.
"...we've only discovered a few extra-solar planets, and at least one among those we've seen has life."
I'm sorry, did I miss something? Mankind has found an extra-solar planet with evidence of life? I must have missed the headlines.
A good reply! Thanks for the well-thought out response.
As for the RIAA fears, I mostly chalk those comments up to the Slashdot RIAA conspiracy mania and tend to ignore them. I do agree that when the user is in the university's house (as you put it), they are, by definition, giving up some privacy. The hypothetical I posed (someone living in off campus private housing) was designed to focus in on the question I find so compelling in this story: To what extent does this ruling affect the admissibility of the evidence in a future case with similar, but not identical, circumstances? I think the controversy is in determining how much privacy best satisfies all parties involved.
Moreover, I tried to make my prior posting consistent with the fact that this incident took place in 1999. Even so, I still think that any justification for a system adminstrator breaking in to a user's computer should be fully scrutinized, batted back and forth and discussed. Here, in the real world and in the courts. And since that debate is what we all appeared to be engaged in, the system appears to be working. Also, if I jumped the gun on implying the ruling was being construed as a blank check on system admin vigilantism, I apologize. I didn't mean to state that quite so forcefully, but as more of a gentle reminder. That said, I do think calling counter-hacking an "unorthodox response" engages in euphamism that strains normal conceptions of right and wrong, even in exigent circumstances.
Finally, I'm still curious about the initially defensive nature of your first post. I'm not trying to step on toes here, but I would like to know what prompted that tone out of the gate. Was it a reflexive response to a presumption (potentially a good one) that Slashdotters would jump to the predictable and wrong-headed conclusion that Heckencamp's rights were violated or was it something else?
The truth is, change a few facts in this case (say, the terms in the University's network access or housing agreements) and you get an entirely different scenario. In your posting, you said: But, if the attacker lives off-campus (say, on Mifflin Street) and was accessing the University through, say, a shell account, then only the network access agreement governs the University response. Does the university still have a contractual right to hack the student's computer? Their shell account is probably up for grabs, but, hopefully, not their home computer. And if the home computer is legally vulnerable, then perhaps the student government needs to step in and discuss these terms with the University's administration. I am not convinced that either public policy or the student's best interests are served by an agreement that allows even fettered access to a computer that is not physically, directly connected to the University network without first obtaining a warrant.
The concerns expressed here on Slashdot only serve to highlight the fact that the law is always trying to catch up to the real world. Accordingly, I was a bit confused by the defensive stance taken in your initial post and could not help but feel that you were trying to imply that nearly any means undertaken by the University IT department are justified to protect the network. If I misconstrued the tenor of your posting, please chalk it up to the especially weak cup of coffee I had this morning. If I did not, then I can only say that your immediate defensive posture should be a concern for any UW students reading this board. This ruling does not provide University IT staff carte blanche access to student computers. Furthermore, many of the questions posed by other Slashdotters are valid concerns and should, perhaps, be given due consideration, rather than shouting "RTFA" everytime one of them questions the situation.
How about a dialog, rather than a shouting match? ("You must be new here" posts to follow.)
Dear Slashdotters,
Before you go off on another rant, stigmatizing and denouncing DRM-free downloads from Apple and EMI for being more expensive than the DRM versions of the same songs, please consider that this was an unthinkable turn of events 18 months ago. Accept this news for what it is, an incremental improvement in digital music offerings. What, did you think that the entire music industry was going to turn on a dime to meet your whims? Regardless of the merits of either side, expecting either position to completely fold in one fell swoop is, at best, naive.
This is a WIN!
Just because the consumer side didn't get everything they want doesn't lessen the benefit of this win. This news can be celebrated without criticism while still pointing out that more is needed. If one considers this news from a more expansive perspective, one might see that this is but one of many events in this ongoing debate, not the last word, but one of the first.
Please, please, please, be patient with the music industry, where many seem to be coming around to the idea that consumers need to be satisfied and respected. In other words, exercising context, perspective and patience needn't blunt one's ardor and focus on the issue, but, perhaps, they might blunt the strongest voices denying the benefit gained because their demands were not completely satisfied.
You'll catch more flies with honey