The question of whether the right is "clearly established" goes to whether the police get qualified immunity. If there was no clearly established right, they get qualified immunity, and don't have to stand trial. If the question goes to an appeals court, they are supposed to first determine whether the right exists -- after which it becomes clearly established, helping the next plaintiff -- and then whether it was clearly established before. They have to clearly establish whether the right exists before they can say whether it was already clear or not.
The US Supreme Court has ruled that gathering evidence in support of one's claims -- particularly against the government -- is an integral part of the freedoms of speech and seeking redress. There's a huge difference between someone saying "X happened, trust me" and "X happened, here's video proof", especially when X is something they governed clearly should not be doing.
That doesn't mean the right to record public servants is unqualified, but it's definitely broad.
Registering as a Democrat, running as a Democrat, and being nominated as a Democrat does make you a Democrat. Calling her "decidedly 'right'" does not make her so. Denying plain facts makes both of you look childish, as does blatantly mischaracterizing what I said. There's a huge difference between silencing someone and moderating them. You do come across as a bitter Bernie supporter who ought to be dismissed and modded down by the grown-ups at the table.
Name one mainstream 1970s Republican who advocated for gay marriage, transsexual bathrooms, or any of Hillary's distinguishing social positions. Name one who supported free trade with China, open borders, hugely increased capital gains taxes, cap and trade for emissions, single-payer health care or any of Hillary's other specific economic proposals.
You should be delighted that instead of a 1970s Republican, we elected a 1980s/1990s Democrat.
Hillary's not a Republican, you moron. If you think the Democratic party is not far enough to the left, say so, but you deserved to get moderated down for claiming a vote for Hillary could be part of a straight Republican ballot.
Thank you. I greatly appreciate your citation to the law, your translation of it, and explaining that disclosing the recording capabilities does not make it not "hidden". I think my fundamental disagreement with the law is based on that last part, but my opinions do not change German law:)
Obviously, no one ever practices any large system in a pure form.
However, I would rather have lived in the United States any time in the last 100 years than in the Soviet Union at the same times. Life in the United States -- or Britain, or France, or the former West Germany -- has been better under more capitalist regimes (as actually practiced) than it has been in China, Cuba, Vietnam, or any of the other communist regimes (as actually practiced).
PopeRatzo and drinkypoo played stupid games, and won stupid prizes.
Microsoft has apparently invented such a stinker of a product that better is actually worse.
In almost every case, as Gabriel's classic observation holds, it is better to get something out on the market fast rather than try to make it technically superior. The only obvious reason to cancel the second-generation Hololens is that it is fundamentally not ready for prime time, and would make the Microsoft and Hololens brands look worse if people saw them.
Then what is the precise definition of an illegal hidden surveillance device? You apparently disagree with angel'o'sphere's conclusion that this doll is illegal because its security bugs void its license to transmit voice over a radio. Would the examples I have given elsewhere in this thread be legal or illegal?
No. If you set it to record, it does make your jacket the illiegal device and you the manufacturer of an object that contains a hidden recording or transmission device.
In that case, then two results obtain:
The doll is only an illegal hidden surveillance device when someone actually hijacks it.
The proper remedy is to destroy the microphone in your phone once you put the phone in your pocket.
Juist because it is not clear to you what is allowed or not does not make it unclear for the people making the decisions.
No, but when there are conflicting explanations and nobody seems to be able to clearly explain why this thing is not allowed but similar things are allowed, it suggests that the criteria are unclear.
This is like so much under civil law: An arbitrary, idiosyncratic decision that does not provide any real insight into how the next decision about a similar example should be made.
And how is case law or if you aim more for criminal law different?
I was trying to distinguish civil law regimes from common law regimes. Under common law, higher courts make precedent: They explain general rules that lower courts are bound to follow, and how those general rules apply to particular cases. A lower court must follow precedent unless it can distinguish the relevant fact pattern in a new case from the rules laid out by precedent. This tends to make decisions of law a little more predictable.
Why you hint VOIP Apps could or should fall under the "not allowed" category is beyond me. Especially as the rules are made for devices, not for Apps.
Well, you said that the radio license is invalidated based on the behavior of the software on the device, and in particular whether bugs can allow an attacker to record audio and transmit it over the radio. VOIP apps are another example of third-party software running on a device that records audio and transmits it over the radio; I am not sure what part of a desktop with add-on microphone and add-on WiFi dongle would have voice-over-radio approval. HTML5 includes ways for web sites to request microphone input, and if a web browser had a security bug in that area, that might mean lots of computers are suddenly illegal devices.
I am trying to understand how the line is supposed to be drawn, and why the law is consistently described as a "hidden surveillance device" law rather than a voice radio licensing law or software correctness law, even though you say (plausibly) that the radio license and software correctness are critical parts of the decision -- which also suggests to me that the device looking like a doll, rather than a computer, is largely irrelevant to the BNetzA's decision.
The claim that all those people who say they tried to be communists weren't actually trying Real Communism is pretty close to the textbook/Wikipedia example of the No True Scotsman fallacy, particularly since it is a claim mostly made in hindsight, and contemporary reports of the Soviet Union (to pick an example) played up its communist credentials.
Trying to understand what distinguishes a legal device from an illegal one is not nit-picking. It is trying to understand the law. Asking someone to explain the difference between two similar things, where one thing has a trait (legal device, even number, whatever) and the other does not, is a very common approach to learn about a topic.
The stories I have seen say the doll is illegal because it has a hidden microphone (perhaps because journalists are too lazy to write more than 200 words about this story). You are the only person I have seen claim that it is specifically because bugs can invalidate its license to transmit voice over a radio. Those are two very different reasons for declaring it illegal. For example, if it is illegal because certain bugs invalidate its radio license, then a similarly buggy device that transmits voice over a wired network connection would not be covered.
You have only explained that the regulatory agency somehow finds this particular doll to be a hidden surveillance device now, but apparently did not find it to be one before.
This is like so much under civil law: An arbitrary, idiosyncratic decision that does not provide any real insight into how the next decision about a similar example should be made. Do voice-over-IP applications on your phone make your phone fall under the "not allowed" group, or are all such applications allowed with certain restrictions? Are laptops with microphones allowed to use WiFi or not? How would the restrictions be enforced for such applications?
Sure, and you only touch on my point in passing: It seems impossible to implement communism on any kind of large scale without that kind of failure. Given that all the governments (larger than a kibbutz) that have claimed to be trying communism end up brutally repressing their citizens while also greatly reducing quality of life for the non-elites, I would rather take my chances with capitalism.
The DRC has never been short on government interference. There has basically always been lots of state-sanctioned violence and corruption. Heck, they even got help from other governments in the interfering-with-things department. Except for the "other governments" part, the same is true of other failed states. That is typically why they failed.
Actually, to distinguish a phone from this doll, you wrote:
My phone can not be used as mobile radio to pick up your phones microphone input and transfer that microfone input as "wireless signals" that happen to be BT and then play them back as audio on my phone.
This is factually wrong. This doll doesn't work like that, and a phone can capture audio and transmit it to another phone even more easily than this doll can. So the facepalm is because you said the thing that "no one said".
The FCC is a US regulatory agency. It doesn't approve wireless radios for other countries. In Germany, the BNetzA licenses such devices. Why did it approve this doll for sale in the first place? What changed between then and now? (As a side note, in the US just as in Germany, you need a license to transmit on most frequencies. Even "unlicensed" bands can only be used in connection with devices that are approved by the FCC, so that they only transmit within approved bands, at permitted power levels, in ways that allow other users to use the band, and so forth. WiFi and Bluetooth run in such an "unlicensed" band, and the FCC has very strict rules about WiFi and Bluetooth radios.)
This doll was designed to listen to children and respond with speech, so saying it was designed "to be a DOLL and NOTHING MORE" -- and in particular that it is "NOT A COMMUNICATION DEVICE" is silly. Talking is one form of communication. Radio transmission is another form. I will repeat my original question: Is this doll supposedly illegal because parents were not told that the doll could communicate over Bluetooth or WiFi? How would the doll do speech interaction at all if the parents (or child) didn't have to set it up to use a WiFi network or pair with some other device over Bluetooth?
You still have not explained why the doll is considered a hidden surveillance device, but a phone in your pocket or a smart TV is not. As far as I have seen, this doll only transmits audio to an attacker if the attacker exploits a bug in the Bluetooth interface to run malicious software on the doll. Any device with a microphone and a radio can have the same kind of behavior due to software bugs.
No, I mean that governments inevitably interfere with the market system. That's about the same minimal level of deviation from an ideal that communism's defenders invoke to say that true communism has never really been tried.
I will try to elaborate on why I don't think the law, as described in the article and by most of the comments here, makes much sense.
What makes the device illegal? That a microphone and either a storage device or a transmitter are inside some other object (I will call this the hardware rule), or that the software on the device allows third parties to capture audio (I will call this the software rule)?
If we use the hardware rule, what qualifies it as a "hidden" device? Is a Smart TV a hidden surveillance device? Is any "smart home" control device (pick your favorite vendor/device) a hidden surveillance device? If such a device, or a webcam, usually has an LED to show it is active, but the LED can be disabled by software or can be covered up, does that make it a hidden surveillance device? Is it illegal to cover such a device with a towel, or put it behind a decorative screen, or do similar things?
If we use the software rule, is it intentional features that make the device illegal, or can bugs do the same thing? If the rule is based on intentional features, does telling recipients about those features mean they are not hidden, and thus the device is legal? If bugs are enough to make the device illegal, what happens before we know about the bugs, or after the bugs are fixed? If security bugs are fixed, are devices without the bug-fix illegal, but legal once they get the fixed software?
In the US, anti-snooping laws almost always hinge on someone actually doing covert recording. It would be hard to have a law that outlawed a class of recording device because the First Amendment broadly protects things and methods that someone might use to gather news and facts. Outlawing devices means that lines would have to be drawn between legal and illegal devices, and I do not see a good way to draw those lines.
Yes, I read the summary and the article. I posted my original comment because neither of them make much sense.
This doll is no more capable of picking up my phone's microphone input than your phone is. Almost all phones have Bluetooth -- usually with more features, and easier programmability, than this doll has. If the doll's Bluetooth functionality is inherently a problem, so is your phone's.
Your example of putting this doll on another person's desk is frankly stupid. That is not a typical way to use a doll, and it is perfectly easy for me to come up with a case where you hide your phone near my desk (or in your pocket, as I already said) with the idea of recording things without my knowledge. In either case, the problem is the way someone uses a device that has a microphone and transmitter, not in the device itself. You have still not distinguished this doll from any of many other devices that people are happy to allow.
Ah, the old predictable "no true communism" argument. It's always hard to tell if the person advancing that claim is a shameless liar or an utter moron.
Why didn't you note that true capitalism has never been faithfully tried, either?
Your phone uses Bluetooth. If you leave it in your pocket, does that make it a hidden surveillance device?
You're not making a coherent point, or distinguishing this doll from hundreds of other products that no one seems to think should be considered illegal under this law.
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The question of whether the right is "clearly established" goes to whether the police get qualified immunity. If there was no clearly established right, they get qualified immunity, and don't have to stand trial. If the question goes to an appeals court, they are supposed to first determine whether the right exists -- after which it becomes clearly established, helping the next plaintiff -- and then whether it was clearly established before. They have to clearly establish whether the right exists before they can say whether it was already clear or not.
"something the government" should not be doing. Sigh.
The US Supreme Court has ruled that gathering evidence in support of one's claims -- particularly against the government -- is an integral part of the freedoms of speech and seeking redress. There's a huge difference between someone saying "X happened, trust me" and "X happened, here's video proof", especially when X is something they governed clearly should not be doing.
That doesn't mean the right to record public servants is unqualified, but it's definitely broad.
Registering as a Democrat, running as a Democrat, and being nominated as a Democrat does make you a Democrat. Calling her "decidedly 'right'" does not make her so. Denying plain facts makes both of you look childish, as does blatantly mischaracterizing what I said. There's a huge difference between silencing someone and moderating them. You do come across as a bitter Bernie supporter who ought to be dismissed and modded down by the grown-ups at the table.
Name one mainstream 1970s Republican who advocated for gay marriage, transsexual bathrooms, or any of Hillary's distinguishing social positions. Name one who supported free trade with China, open borders, hugely increased capital gains taxes, cap and trade for emissions, single-payer health care or any of Hillary's other specific economic proposals.
You should be delighted that instead of a 1970s Republican, we elected a 1980s/1990s Democrat.
Hillary's not a Republican, you moron. If you think the Democratic party is not far enough to the left, say so, but you deserved to get moderated down for claiming a vote for Hillary could be part of a straight Republican ballot.
Thank you. I greatly appreciate your citation to the law, your translation of it, and explaining that disclosing the recording capabilities does not make it not "hidden". I think my fundamental disagreement with the law is based on that last part, but my opinions do not change German law :)
Obviously, no one ever practices any large system in a pure form.
However, I would rather have lived in the United States any time in the last 100 years than in the Soviet Union at the same times. Life in the United States -- or Britain, or France, or the former West Germany -- has been better under more capitalist regimes (as actually practiced) than it has been in China, Cuba, Vietnam, or any of the other communist regimes (as actually practiced).
PopeRatzo and drinkypoo played stupid games, and won stupid prizes.
Microsoft has apparently invented such a stinker of a product that better is actually worse.
In almost every case, as Gabriel's classic observation holds, it is better to get something out on the market fast rather than try to make it technically superior. The only obvious reason to cancel the second-generation Hololens is that it is fundamentally not ready for prime time, and would make the Microsoft and Hololens brands look worse if people saw them.
It's awfully hard to keep up, given how fast you're moving those goalposts.
Then what is the precise definition of an illegal hidden surveillance device? You apparently disagree with angel'o'sphere's conclusion that this doll is illegal because its security bugs void its license to transmit voice over a radio. Would the examples I have given elsewhere in this thread be legal or illegal?
In that case, then two results obtain:
No, but when there are conflicting explanations and nobody seems to be able to clearly explain why this thing is not allowed but similar things are allowed, it suggests that the criteria are unclear.
I was trying to distinguish civil law regimes from common law regimes. Under common law, higher courts make precedent: They explain general rules that lower courts are bound to follow, and how those general rules apply to particular cases. A lower court must follow precedent unless it can distinguish the relevant fact pattern in a new case from the rules laid out by precedent. This tends to make decisions of law a little more predictable.
Well, you said that the radio license is invalidated based on the behavior of the software on the device, and in particular whether bugs can allow an attacker to record audio and transmit it over the radio. VOIP apps are another example of third-party software running on a device that records audio and transmits it over the radio; I am not sure what part of a desktop with add-on microphone and add-on WiFi dongle would have voice-over-radio approval. HTML5 includes ways for web sites to request microphone input, and if a web browser had a security bug in that area, that might mean lots of computers are suddenly illegal devices.
I am trying to understand how the line is supposed to be drawn, and why the law is consistently described as a "hidden surveillance device" law rather than a voice radio licensing law or software correctness law, even though you say (plausibly) that the radio license and software correctness are critical parts of the decision -- which also suggests to me that the device looking like a doll, rather than a computer, is largely irrelevant to the BNetzA's decision.
The claim that all those people who say they tried to be communists weren't actually trying Real Communism is pretty close to the textbook/Wikipedia example of the No True Scotsman fallacy, particularly since it is a claim mostly made in hindsight, and contemporary reports of the Soviet Union (to pick an example) played up its communist credentials.
Trying to understand what distinguishes a legal device from an illegal one is not nit-picking. It is trying to understand the law. Asking someone to explain the difference between two similar things, where one thing has a trait (legal device, even number, whatever) and the other does not, is a very common approach to learn about a topic.
The stories I have seen say the doll is illegal because it has a hidden microphone (perhaps because journalists are too lazy to write more than 200 words about this story). You are the only person I have seen claim that it is specifically because bugs can invalidate its license to transmit voice over a radio. Those are two very different reasons for declaring it illegal. For example, if it is illegal because certain bugs invalidate its radio license, then a similarly buggy device that transmits voice over a wired network connection would not be covered.
You seem to be laboring under the delusion that "failed state" means "no government". It doesn't.
You have only explained that the regulatory agency somehow finds this particular doll to be a hidden surveillance device now, but apparently did not find it to be one before.
This is like so much under civil law: An arbitrary, idiosyncratic decision that does not provide any real insight into how the next decision about a similar example should be made. Do voice-over-IP applications on your phone make your phone fall under the "not allowed" group, or are all such applications allowed with certain restrictions? Are laptops with microphones allowed to use WiFi or not? How would the restrictions be enforced for such applications?
Sure, and you only touch on my point in passing: It seems impossible to implement communism on any kind of large scale without that kind of failure. Given that all the governments (larger than a kibbutz) that have claimed to be trying communism end up brutally repressing their citizens while also greatly reducing quality of life for the non-elites, I would rather take my chances with capitalism.
The DRC has never been short on government interference. There has basically always been lots of state-sanctioned violence and corruption. Heck, they even got help from other governments in the interfering-with-things department. Except for the "other governments" part, the same is true of other failed states. That is typically why they failed.
Actually, to distinguish a phone from this doll, you wrote:
This is factually wrong. This doll doesn't work like that, and a phone can capture audio and transmit it to another phone even more easily than this doll can. So the facepalm is because you said the thing that "no one said".
The FCC is a US regulatory agency. It doesn't approve wireless radios for other countries. In Germany, the BNetzA licenses such devices. Why did it approve this doll for sale in the first place? What changed between then and now? (As a side note, in the US just as in Germany, you need a license to transmit on most frequencies. Even "unlicensed" bands can only be used in connection with devices that are approved by the FCC, so that they only transmit within approved bands, at permitted power levels, in ways that allow other users to use the band, and so forth. WiFi and Bluetooth run in such an "unlicensed" band, and the FCC has very strict rules about WiFi and Bluetooth radios.)
This doll was designed to listen to children and respond with speech, so saying it was designed "to be a DOLL and NOTHING MORE" -- and in particular that it is "NOT A COMMUNICATION DEVICE" is silly. Talking is one form of communication. Radio transmission is another form. I will repeat my original question: Is this doll supposedly illegal because parents were not told that the doll could communicate over Bluetooth or WiFi? How would the doll do speech interaction at all if the parents (or child) didn't have to set it up to use a WiFi network or pair with some other device over Bluetooth?
You still have not explained why the doll is considered a hidden surveillance device, but a phone in your pocket or a smart TV is not. As far as I have seen, this doll only transmits audio to an attacker if the attacker exploits a bug in the Bluetooth interface to run malicious software on the doll. Any device with a microphone and a radio can have the same kind of behavior due to software bugs.
No, I mean that governments inevitably interfere with the market system. That's about the same minimal level of deviation from an ideal that communism's defenders invoke to say that true communism has never really been tried.
I will try to elaborate on why I don't think the law, as described in the article and by most of the comments here, makes much sense.
What makes the device illegal? That a microphone and either a storage device or a transmitter are inside some other object (I will call this the hardware rule), or that the software on the device allows third parties to capture audio (I will call this the software rule)?
If we use the hardware rule, what qualifies it as a "hidden" device? Is a Smart TV a hidden surveillance device? Is any "smart home" control device (pick your favorite vendor/device) a hidden surveillance device? If such a device, or a webcam, usually has an LED to show it is active, but the LED can be disabled by software or can be covered up, does that make it a hidden surveillance device? Is it illegal to cover such a device with a towel, or put it behind a decorative screen, or do similar things?
If we use the software rule, is it intentional features that make the device illegal, or can bugs do the same thing? If the rule is based on intentional features, does telling recipients about those features mean they are not hidden, and thus the device is legal? If bugs are enough to make the device illegal, what happens before we know about the bugs, or after the bugs are fixed? If security bugs are fixed, are devices without the bug-fix illegal, but legal once they get the fixed software?
In the US, anti-snooping laws almost always hinge on someone actually doing covert recording. It would be hard to have a law that outlawed a class of recording device because the First Amendment broadly protects things and methods that someone might use to gather news and facts. Outlawing devices means that lines would have to be drawn between legal and illegal devices, and I do not see a good way to draw those lines.
Yes, I read the summary and the article. I posted my original comment because neither of them make much sense.
This doll is no more capable of picking up my phone's microphone input than your phone is. Almost all phones have Bluetooth -- usually with more features, and easier programmability, than this doll has. If the doll's Bluetooth functionality is inherently a problem, so is your phone's.
Your example of putting this doll on another person's desk is frankly stupid. That is not a typical way to use a doll, and it is perfectly easy for me to come up with a case where you hide your phone near my desk (or in your pocket, as I already said) with the idea of recording things without my knowledge. In either case, the problem is the way someone uses a device that has a microphone and transmitter, not in the device itself. You have still not distinguished this doll from any of many other devices that people are happy to allow.
Ah, the old predictable "no true communism" argument. It's always hard to tell if the person advancing that claim is a shameless liar or an utter moron.
Why didn't you note that true capitalism has never been faithfully tried, either?
Your phone uses Bluetooth. If you leave it in your pocket, does that make it a hidden surveillance device?
You're not making a coherent point, or distinguishing this doll from hundreds of other products that no one seems to think should be considered illegal under this law.