The 917 hours represents the amount of burden put on the public, not the burden on the U.S. government. This calculation is a necessary part of the Paperwork Reduction Act for any information gathering.
No it doesn't, because government lawyers are paid much less than corporate defense attorneys.
A GS-13 attorney (mid-level; next step up would be supervisory) costs the government $45 per hour, assuming the attorney doesn't work more than their 80 hours per pay period. A similarly experienced corporate defense attorney's billable rate per hour would be about an order of magnitude higher.
No, there isn't, which is precisely what this case is about. The question is what "plain sight" should mean in the context of electronic searches, or whether the plain sight doctrine should even apply to electronic searches.
Once again the editors have demonstrated that, as much as geeks like to complain about lawyers not understanding technology, techies have far greater problems understanding legal issues.
I could go into a ton of detail as to the potential issues with the Ninth Circuit's approach, and the reasons why it makes sense for this case to continue through the process of judicial review. However, that would be redundant, because Orin Kerr, who's an expert on the topic, does an excellent job of doing it for me. Incidentally, it only took one Google search to pull up his analysis:
No, it's like saying, "If we investigate this, we lose the ability to investigate any other crimes we discover. If you, as state authorities, investigate it, you may not due to the impact of federalism." Actually, it's not *like* saying that, it's saying precisely that.
You should probably consider the fact that this article was written by the Washington Times, a newspaper which is literally falling apart as we speak, before you completely lose it over a poor choice of words on the part of the writer.
When Mr. Wizner spoke of the narrow exception, he isn't referring to an exception to the Fourth Amendment, but rather an exception to the general rule that searching someone's person without probable cause and a warrant is unreasonable. Remember, the Fourth Amendment only prohibits "unreasonable" searches and seizures. Over time, we've decided as a society that limited random searches for the purpose of ensuring air travel security are reasonable, and therefore do not offend the Fourth Amendment.
In this way, the searches are analogous to DUI-checkpoint seizures, in which police officers are not required to demonstrate any probable cause or even reasonable suspicion before seizing every person that travels along a road to determine whether they've been drinking. Similarly, the ability to conduct these sorts of checkpoints while being "reasonable" is limited - for instance, police may not establish a drug interdiction checkpoint to look for traffickers.
No, I also mean accessibility to invitees, like people allowed on to the property to conduct business. "Public accommodation" does not mean a "publicly funded and provided accommodation," it means a place that is generally open to the public. The EEOC provides guidance listing such places to include "restaurants, hotels, theaters, doctors' offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers."
If MMORPGs are considered a public accommodation (as a "place of amusement"), then SOE would be responsible for making reasonable accommodations for the disabled in providing their service.
"Undue burden" is either a particularly fantastic choice of words, or you know more about this area of law then you're letting on, because that's one of the relevant standards in ADA enforcement. If an accommodation would be an "undue burden" upon the business (defined as "significant difficulty or expense" in 28 C.F.R. 36.104, available at http://www.ada.gov/reg3a.html#Anchor-36104), the accommodation is unreasonable and therefore not required.
It gets thorny when you're operating a business in the States, though; you can't set up a webserver in Canada, do millions of dollars of business with US customers, and then successfully claim a lack of personal jurisdiction due to where the computer is located. See, e.g., Graduate Management Admission Council v. Raju, 241 F.Supp.2d 589 (E.D. Va., 2003).
Did you read my post? The accommodations have to be reasonable to be required by the ADA.
Further, you're assuming that the person suing is blind, which doesn't make sense when you consider that one of the possible accommodations requested is "the addition of visual cues." This person doesn't appear to be blind.
So is every business covered by the ADA. Keep in mind that, according the article, we're talking about MMORPGs, which are just as much a service as websites, which have already been held to be subject to the ADA.
The jurisprudence of the priest-penitent privilege is that, were the government to compel religious figures to testify regarding confidential conversations, that would effectively prevent people from exercising their religion by subjecting any confession of wrongdoing to the threat of being revealed to law enforcement.
The right to gather information from anonymous sources, on the other hand, is seen as less fundamental to the exercise of the free press. It is not, however, completely unprotected, because in order to prevent abridging the First Amendment, the government must demonstrate an overriding need for the information.
Amusement parks are "entertainment, no more," and they're governed by the ADA as well.
As for your analogy, you likely (not knowing the details of your medical condition) would not be able to demonstrate that you are "disabled," within the statutory meaning - you have to have a significant impairment in a major life activity, which is a high standard to meet. Even if you could demonstrate that you were disabled, you would then have to show that there were "reasonable" accommodations they could make, which means imposing too much of a cost on the business to make the accommodation is right out. Since you have to be significantly disabled to be entitled to "reasonable accommodations," in many circumstances the accommodation for the disability would be considered unreasonable.
Unfortunately, the ADA largely ends up only protecting a small cross-section of the disabled from businesses that are making poor decisions in *not* accommodating disabilities. Whether or not this case against SOE falls into that category is something that remains to be seen.
Under federal law, reporters aren't given special rights to protect their sources. Reporters (somewhat infrequently) have to go to jail to protect their sources, as Judith Miller did during the Plame-leak investigation. New Hampshire's Supreme Court appears to have previously ruled that the state constitution provides some level of privilege, arguing that "[o]ur constitution quite consciously ties a free press to a free state, for effective self-government cannot succeed unless the people have access to an unimpeded and uncensored flow of reporting. News gathering is an integral part of the process."
As for your second question, the reason priests, lawyers, and doctors are permitted under the Federal Rules of Evidence (and, as far as I'm aware, state evidence law), is because of the special relationships these professions have with their clients. Independent judgments have been made, over the years, that forcing these specific categories of people to reveal their confidences learned in the course of their job would be harmful to society. A similar rationale is used for the other type of privilege you left off the list - spousal.
Of course, as I write this, I see your name is "BadAnalogyGuy," so perhaps you were simply being true to your name rather than making a sincere argument.
You've got it right: Sgt. Savano seems to be operating under the mistaken premise that, because the State won, that means that GPS is forever discredited and can never be raised as defense evidence in the future. That's obviously not the case.
Yes, but not as a result of some punishment for failing to take a plea bargain. In order to make the plea bargain mutually beneficial, the proposed sentence for the plea has to be lower then the sentence likely to be imposed at trial. This generally means not only a lesser sentence, but a lesser charge as well.
You're forgetting that traffic infractions are a civil offense, not a criminal offense. As such, the "beyond a reasonable doubt" standard doesn't apply, replaced by the civil standard of "preponderance of the evidence." That means the prosecution just has to prove it's more likely than not that the person was speeding. Because police officers are generally seen as credible witnesses under most circumstances, that's a hard standard to meet for the defense.
Let me address your tangent first. As an initial matter, I'm curious, did you follow court rules for submitting an amicus curiae brief? If not, the court's not going to consider it. Assuming you did, and the court had some notice that the expert was dumb, the ruling certainly was bad. With that said, the exper probably didn't commit perjury, because it's generally hard to prove that someone was actually lying, rather than just testifying while being an idiot.
Moving on to your main point, if I understand you correctly, you're trying to institute a mechanism for the parties to tell the court that there is a greivous error in the court's decision. That's an excellent idea, and you'll be happy to learn that the mechanism already exists. It's generally known as a motion for reconsideration, but in the context of the VASC it's referred to as a petition for rehearing. Virginia Supreme Court Rule 5:39, available at http://leg1.state.va.us/cgi-bin/legp504.exe?000+scr+vscr-5Z39. While I can't say for certain, this being an edge case in the general field of civil procedure, I believe the appropriate standard of review for reconsideration on a factual issue would be clear error.
While you might think that the Court's understanding of IP addresses and e-mail is such an error, as with all things legal it's a more complicated analysis. For an error to be "clear," it must be both significant and obvious on the face of the record. If there was any creditable evidence in the prior rulings to support the judge's conclusion, then reversing for clear error wouldn't be justified. In this case, one of the experts probably testified that spoofing an IP address would make it harder to identify the sender. In a trivial sense that's true; as you say, it means you would need to look harder to do so. That would probably be enough to block a judge from finding a different set of facts.
While I haven't gone into any great detail on appellate practice here, I hope this is helping to demonstrate my initial point that your suggestions and analysis are hampered by your significant lack of knowledge as to how the systems you are critiquing actually work. I'll admit that your work at Peacefire helped inspire my interest in law all the way back in high school, but I understood that if I wanted to be a creditable voice for my ideas, I needed to have the training to more clearly understand the legal system. If you're serious about wanting to change the legal system for the better (rather than just occassionally ranting on Slashdot), perhaps you should give that some consideration?
What you appear to be having difficulty understanding is that the judge is not to base his or her decision on evidence not in the record or facts that could be properly judicially noticed (things that are both incontrovertible and common knowledge), including his or her own impression of the facts. See ABA Model Code of Judicial Conduct, Rule 2.9, available at http://www.abanet.org/judicialethics/ABA_MCJC_approved.pdf. If a judge decides a case based on his own understanding of facts that may not properly be judicially noticed, that judge is acting wrongfully. On the other hand, if that judge decides the case based on the evidence presented, but does so in a way that's seen as "wrong" to the majority of people in the field, that just means that the judge is lacking sound judgment. Both of these problems, however, are better solved by picking better judgments, rather than completely restructuring the nature of the American judiciary.
Assuming that the judge at issue is not simply making up facts as he goes, but rather is making his decision based on the evidence before him, your new iteration of your original bad idea is no better. The judge would have decided that one expert's understanding of the facts was better than the other's, and written a decision accordingly; the opposing party would naturally disagree, and the result would be re-litigation of the case in any case with expert testimony.
For one thing, the interests of the parties (and justice generally), by preserving the parties' ability to respond to expert testimony. There's a reason that judges are barred from engaging in ex parte communications with outside experts (with limited exceptions) - the case should be decided on the evidence in the record, not the opinions on matters of fact delivered by experts whose statements are not in the record and are not subject to cross-examination.
Judges are not detectives, going around trying to establish facts for themselves. Our justice system is built upon the fundamental premise of judges hearing evidence presented by adversarial parties and issuing decisions based on that evidence. This is not to say that an alternative system is impossible, but rather to say that your idea is incompatible with our existing system. As such, if you want to fundamentally change the way the judiciary works, you need to have something a bit more persuasive than a single VASC decision you don't care for.
Slashdot Mirror
The 917 hours represents the amount of burden put on the public, not the burden on the U.S. government. This calculation is a necessary part of the Paperwork Reduction Act for any information gathering.
Which is why searches incident to arrest no longer include cars when the person arrested doesn't have access to the car.
Arizona v. Gant, 129 S.Ct. 1710 (2009).
As a general matter, a small claims court isn't going to have equitable power, meaning it won't have jurisdiction to order an injunction.
That's a brilliant idea. It's not like you'd want someone who understands how law is applied to be in charge of writing law.
No it doesn't, because government lawyers are paid much less than corporate defense attorneys.
A GS-13 attorney (mid-level; next step up would be supervisory) costs the government $45 per hour, assuming the attorney doesn't work more than their 80 hours per pay period. A similarly experienced corporate defense attorney's billable rate per hour would be about an order of magnitude higher.
No, there isn't, which is precisely what this case is about. The question is what "plain sight" should mean in the context of electronic searches, or whether the plain sight doctrine should even apply to electronic searches.
Once again the editors have demonstrated that, as much as geeks like to complain about lawyers not understanding technology, techies have far greater problems understanding legal issues.
I could go into a ton of detail as to the potential issues with the Ninth Circuit's approach, and the reasons why it makes sense for this case to continue through the process of judicial review. However, that would be redundant, because Orin Kerr, who's an expert on the topic, does an excellent job of doing it for me. Incidentally, it only took one Google search to pull up his analysis:
http://volokh.com/posts/1228354570.shtml
No, it's like saying, "If we investigate this, we lose the ability to investigate any other crimes we discover. If you, as state authorities, investigate it, you may not due to the impact of federalism." Actually, it's not *like* saying that, it's saying precisely that.
You should probably consider the fact that this article was written by the Washington Times, a newspaper which is literally falling apart as we speak, before you completely lose it over a poor choice of words on the part of the writer.
When Mr. Wizner spoke of the narrow exception, he isn't referring to an exception to the Fourth Amendment, but rather an exception to the general rule that searching someone's person without probable cause and a warrant is unreasonable. Remember, the Fourth Amendment only prohibits "unreasonable" searches and seizures. Over time, we've decided as a society that limited random searches for the purpose of ensuring air travel security are reasonable, and therefore do not offend the Fourth Amendment.
In this way, the searches are analogous to DUI-checkpoint seizures, in which police officers are not required to demonstrate any probable cause or even reasonable suspicion before seizing every person that travels along a road to determine whether they've been drinking. Similarly, the ability to conduct these sorts of checkpoints while being "reasonable" is limited - for instance, police may not establish a drug interdiction checkpoint to look for traffickers.
No, I also mean accessibility to invitees, like people allowed on to the property to conduct business. "Public accommodation" does not mean a "publicly funded and provided accommodation," it means a place that is generally open to the public. The EEOC provides guidance listing such places to include "restaurants, hotels, theaters, doctors' offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers."
If MMORPGs are considered a public accommodation (as a "place of amusement"), then SOE would be responsible for making reasonable accommodations for the disabled in providing their service.
"Undue burden" is either a particularly fantastic choice of words, or you know more about this area of law then you're letting on, because that's one of the relevant standards in ADA enforcement. If an accommodation would be an "undue burden" upon the business (defined as "significant difficulty or expense" in 28 C.F.R. 36.104, available at http://www.ada.gov/reg3a.html#Anchor-36104), the accommodation is unreasonable and therefore not required.
It gets thorny when you're operating a business in the States, though; you can't set up a webserver in Canada, do millions of dollars of business with US customers, and then successfully claim a lack of personal jurisdiction due to where the computer is located. See, e.g., Graduate Management Admission Council v. Raju, 241 F.Supp.2d 589 (E.D. Va., 2003).
The property owner in the context of MMORPGs is the service provider. SOE owns Everquest II; users pay to play in their sandbox.
As for video games generally, you don't own the work, just a copy of it.
Did you read my post? The accommodations have to be reasonable to be required by the ADA.
Further, you're assuming that the person suing is blind, which doesn't make sense when you consider that one of the possible accommodations requested is "the addition of visual cues." This person doesn't appear to be blind.
So is every business covered by the ADA. Keep in mind that, according the article, we're talking about MMORPGs, which are just as much a service as websites, which have already been held to be subject to the ADA.
It could easily be seen as a public accommodation.
The jurisprudence of the priest-penitent privilege is that, were the government to compel religious figures to testify regarding confidential conversations, that would effectively prevent people from exercising their religion by subjecting any confession of wrongdoing to the threat of being revealed to law enforcement.
The right to gather information from anonymous sources, on the other hand, is seen as less fundamental to the exercise of the free press. It is not, however, completely unprotected, because in order to prevent abridging the First Amendment, the government must demonstrate an overriding need for the information.
Amusement parks are "entertainment, no more," and they're governed by the ADA as well.
As for your analogy, you likely (not knowing the details of your medical condition) would not be able to demonstrate that you are "disabled," within the statutory meaning - you have to have a significant impairment in a major life activity, which is a high standard to meet. Even if you could demonstrate that you were disabled, you would then have to show that there were "reasonable" accommodations they could make, which means imposing too much of a cost on the business to make the accommodation is right out. Since you have to be significantly disabled to be entitled to "reasonable accommodations," in many circumstances the accommodation for the disability would be considered unreasonable.
Unfortunately, the ADA largely ends up only protecting a small cross-section of the disabled from businesses that are making poor decisions in *not* accommodating disabilities. Whether or not this case against SOE falls into that category is something that remains to be seen.
Under federal law, reporters aren't given special rights to protect their sources. Reporters (somewhat infrequently) have to go to jail to protect their sources, as Judith Miller did during the Plame-leak investigation. New Hampshire's Supreme Court appears to have previously ruled that the state constitution provides some level of privilege, arguing that "[o]ur constitution quite consciously ties a free press to a free state, for effective self-government cannot succeed unless the people have access to an unimpeded and uncensored flow of reporting. News gathering is an integral part of the process."
As for your second question, the reason priests, lawyers, and doctors are permitted under the Federal Rules of Evidence (and, as far as I'm aware, state evidence law), is because of the special relationships these professions have with their clients. Independent judgments have been made, over the years, that forcing these specific categories of people to reveal their confidences learned in the course of their job would be harmful to society. A similar rationale is used for the other type of privilege you left off the list - spousal.
Of course, as I write this, I see your name is "BadAnalogyGuy," so perhaps you were simply being true to your name rather than making a sincere argument.
You've got it right: Sgt. Savano seems to be operating under the mistaken premise that, because the State won, that means that GPS is forever discredited and can never be raised as defense evidence in the future. That's obviously not the case.
Yes, but not as a result of some punishment for failing to take a plea bargain. In order to make the plea bargain mutually beneficial, the proposed sentence for the plea has to be lower then the sentence likely to be imposed at trial. This generally means not only a lesser sentence, but a lesser charge as well.
You're forgetting that traffic infractions are a civil offense, not a criminal offense. As such, the "beyond a reasonable doubt" standard doesn't apply, replaced by the civil standard of "preponderance of the evidence." That means the prosecution just has to prove it's more likely than not that the person was speeding. Because police officers are generally seen as credible witnesses under most circumstances, that's a hard standard to meet for the defense.
Let me address your tangent first. As an initial matter, I'm curious, did you follow court rules for submitting an amicus curiae brief? If not, the court's not going to consider it. Assuming you did, and the court had some notice that the expert was dumb, the ruling certainly was bad. With that said, the exper probably didn't commit perjury, because it's generally hard to prove that someone was actually lying, rather than just testifying while being an idiot.
Moving on to your main point, if I understand you correctly, you're trying to institute a mechanism for the parties to tell the court that there is a greivous error in the court's decision. That's an excellent idea, and you'll be happy to learn that the mechanism already exists. It's generally known as a motion for reconsideration, but in the context of the VASC it's referred to as a petition for rehearing. Virginia Supreme Court Rule 5:39, available at http://leg1.state.va.us/cgi-bin/legp504.exe?000+scr+vscr-5Z39. While I can't say for certain, this being an edge case in the general field of civil procedure, I believe the appropriate standard of review for reconsideration on a factual issue would be clear error.
While you might think that the Court's understanding of IP addresses and e-mail is such an error, as with all things legal it's a more complicated analysis. For an error to be "clear," it must be both significant and obvious on the face of the record. If there was any creditable evidence in the prior rulings to support the judge's conclusion, then reversing for clear error wouldn't be justified. In this case, one of the experts probably testified that spoofing an IP address would make it harder to identify the sender. In a trivial sense that's true; as you say, it means you would need to look harder to do so. That would probably be enough to block a judge from finding a different set of facts.
While I haven't gone into any great detail on appellate practice here, I hope this is helping to demonstrate my initial point that your suggestions and analysis are hampered by your significant lack of knowledge as to how the systems you are critiquing actually work. I'll admit that your work at Peacefire helped inspire my interest in law all the way back in high school, but I understood that if I wanted to be a creditable voice for my ideas, I needed to have the training to more clearly understand the legal system. If you're serious about wanting to change the legal system for the better (rather than just occassionally ranting on Slashdot), perhaps you should give that some consideration?
What you appear to be having difficulty understanding is that the judge is not to base his or her decision on evidence not in the record or facts that could be properly judicially noticed (things that are both incontrovertible and common knowledge), including his or her own impression of the facts. See ABA Model Code of Judicial Conduct, Rule 2.9, available at http://www.abanet.org/judicialethics/ABA_MCJC_approved.pdf. If a judge decides a case based on his own understanding of facts that may not properly be judicially noticed, that judge is acting wrongfully. On the other hand, if that judge decides the case based on the evidence presented, but does so in a way that's seen as "wrong" to the majority of people in the field, that just means that the judge is lacking sound judgment. Both of these problems, however, are better solved by picking better judgments, rather than completely restructuring the nature of the American judiciary.
Assuming that the judge at issue is not simply making up facts as he goes, but rather is making his decision based on the evidence before him, your new iteration of your original bad idea is no better. The judge would have decided that one expert's understanding of the facts was better than the other's, and written a decision accordingly; the opposing party would naturally disagree, and the result would be re-litigation of the case in any case with expert testimony.
For one thing, the interests of the parties (and justice generally), by preserving the parties' ability to respond to expert testimony. There's a reason that judges are barred from engaging in ex parte communications with outside experts (with limited exceptions) - the case should be decided on the evidence in the record, not the opinions on matters of fact delivered by experts whose statements are not in the record and are not subject to cross-examination.
Judges are not detectives, going around trying to establish facts for themselves. Our justice system is built upon the fundamental premise of judges hearing evidence presented by adversarial parties and issuing decisions based on that evidence. This is not to say that an alternative system is impossible, but rather to say that your idea is incompatible with our existing system. As such, if you want to fundamentally change the way the judiciary works, you need to have something a bit more persuasive than a single VASC decision you don't care for.