I see you've chosen not to engage with any actual argument, and chose instead to make a vague claim of superiority with no explanation. An excellent strategy for when you have no arguments to make but don't want to admit it, such as if you made up a disparaging claim, but got called on it.
I think that those are perfectly reasonable questions. It's not something that you think about a lot as a lawyer - at least not explicitly - because you get so used to this pattern.
Thinking about it, it might be easier to explain this by taking the two steps in the opposite order.
Reasonableness
I don't agree that reasonableness is the bane of all our laws. It's an important safeguard - the point is that we are dealing with subjective judgments or subjective feelings, but we want a safeguard so that someone can't be liable because someone completely overreacted to an innocent remark, or a police officer completely overreacted to very minor evidence.
The question that this is asking is "could a reasonable person, in the position of the victim, have been put in sustained fear" (or in your police example, could a reasonable police officer put in the position of the officer in question have suspected X). The reasonable person is assumed to be of reasonable firmness and resolve, to take sensible logical decisions etc. Note that the question is could a reasonable person, not would they - the person does not have to act in the way that the court thinks a reasonable person would probably act, they just have to act in a way that falls within the spectrum of actions that the reasonable person might take.
In practice, where the person is an expert the court will be slow to find that they have acted unreasonably, especially if they act within the bounds of normal practice in their profession. In principle I think that is sensible - the court is meant to check excesses, not ensure that every officer meets absolute best practice. However it does seem like the pendulum has swung too far at present, particularly in the United States, and I wonder if the fact that US judges are highly politicized means that you are likely to get judges who are more likely to side with the police (I don't mean that they are being swayed by thoughts of rewards for siding with the police, just that the executive is likely to appoint judges who they know take a more pro-executive view).
The subjective limb
This is a straightforward evidential point - straightforward conceptually, that is, not necessarily easy to prove. Subject to the applicable rules of evidence, anything that is relevant can be used to prove that the person was fearful - I'm not aware of CAT scans having been used, but expert evidence from psychiatrists, therapists, police support officers and so on are all used.
Proving that someone was fearful is obviously difficult since it requires the court to try to establish what was in their mind. There are three points though that I think tend to mitigate that problem: 1. This is not an isolated difficulty - the courts are frequently required to establish what was in someone's mind (did she intend to stab him?) and have a lot of practice at it. 2. The criminal standard of proof applies - so the prosecution has to establish beyond reasonable doubt that the person was fearful. 3. They aren't looking at this as an isolated question - they can look at all the circumstances. If, in answer to the other limb of the test, the court has concluded that the defendant's behaviour would have put a reasonable person in sustained fear, they are going to find it rather easier to conclude that this victim was, in fact, in sustained fear. For example, if you make repeated and plausible death threats that the court thinks would have terrorized a reasonable person, and the victim claims that he was left fearful by them, you are likely to find that the court is not very receptive to the argument that the victim is faking it.
As a final point, I don't think it can all be quantified objectively. That, however, is true of an awful lot of criminal laws, even the seemingly straightforward ones. My view is that it's an inevitable product of the fact that we live in a confusing and complicated world.
So where's the bit where she calls testosterone "deeply harmful and limiting"? It's certainly not in the bit you quoted.
I read that quote as saying that they should get rid of the stereotypically girly-girl "ladyfig" series and get rid of the stereotypically male, testosterone-charged macho combat, and make "products that foster creativity and imagination that children of all genders will adore". I.e. she's talking about the lego playsets not men. I think that's obvious from the transcript, but you can also tell that because when she talks about the "macho testosterone" she puts up a picture of a lego figure in combat, not a picture of a human male.
She's pretty outspoken and not afraid to make a point. If she was really saying that testosterone was a negative trait in males don't you think she would have said it, rather than leaving it as an inference that, reading the replies to your comments, nobody except you is picking up on?
And if you're still sure that she meant to denigrate all men, if the most egregious example you've been able to find is an, at most, ambiguous and oblique reference to testosterone, don't you think you might be blowing this out of proportion?
No - there's an objective element to this test as well. Where is says "reasonably to be in sustained fear", that creates a test with two limbs: 1. Was the victim actually in sustained fear? 2. Could the statements have put a reasonable person in the position of the victim in sustained fear?
A threat that obviously wasn't serious would fail the second limb.
(Source: I am a lawyer (although not in this jurisdiction) and this is a common way to formulate criminal laws.)
First, it's pretty obvious that jeffmeden was talking about privacy in terms of the car's location, not "everything that happens in and outside your car".
I see. That's even *worse*. The government absolutely does not have permission to track you.
Second, everything you do involves a tradeoff of privacy, safety, freedom and a dozen other things.
Nonsense, nonsense, nonsense. Going out voluntarily != giving the government permission to track you.
The idea that you can be some sort of privacy and freedom absolutist who never trades either of them for anything is just nonsense.
You're spewing forth straw men. The main point was that the government should not be tracking people and violating their right to privacy. You have privacy and constitutional rights even on public roads.
This is incoherent.
Your first point is that it is worse if the car's location is not private than if "everything that happens in and outside your car" is not private. That's just obvious rubbish.
The remainder of your comment is just saying repeatedly that "the government should not be tracking people". First, this is a strawman - there is a difference between vehicle-to-vehicle communication and centralised tracking. Second, it's not an argument, it's just a soundbite. You aren't engaging with the issue: how much erosion of your privacy would be a reasonable price to pay to make safe, driverless cars a reality?
That transit conduit has a value and it is only because of government that I cannot get some value out of it.
Government is the source of your land rights - you have rights to control what happens with your land because of the laws enacted by society, through the Government. Your whole point here is incredibly wrong-headed.
And - really? Assuming you can get around the whole rights-without-Government issue, you don't think there are any other obstacles to monetizing that airspace? Or do you just prefer to blame "government" for every perceived ill, because you don't really understand?
Will they? There are a lot of advantages to running this in Ireland: low tax rates without the negative publicity of operating in a tax haven, other favourable financial and tax rules that allow foreign companies to book their profits there to further reduce their tax bills, a skilled workforce, good infrastructure, and all the up-front costs that come from building and equipping the data centre in the first place have been paid already. Call me cynical, but I'm not convinced that many data centres will move if Irish law allows the authorities to get this data.
but privacy, as you note, is pretty close to the bottom since your car location is most certainly other people's business as soon as you take it on a public road.
This is absolutely false. People can look at your car, yes, but that doesn't mean everything that happens in and outside your car isn't private. I'd rather have freedom and privacy than safety, and you'd think everyone in a country that's supposed to be "the land of the free and the home of the brave" would agree with me. I don't want the government having control over my vehicle, and all software on the vehicle should be 100% open source, and all hardware should be open as well. No black boxes, and no proprietary garbage. There's just too much room for abuse, and in a free country, that's all it should take to oppose it.
First, it's pretty obvious that jeffmeden was talking about privacy in terms of the car's location, not "everything that happens in and outside your car". Your comment doesn't show that his point is "absolutely false" unless you completely misread what he said.
Second, everything you do involves a tradeoff of privacy, safety, freedom and a dozen other things. If you go outside you lose some privacy; if you get in a car and drive in public you lose some privacy and some safety. The idea that you can be some sort of privacy and freedom absolutist who never trades either of them for anything is just nonsense.
There are plenty of solutions to this problem that only marginally reduce security. For example, keep copies of the encryption keys on index cards in a safe at the Ministry of Justice head office. An attacker would need both the backup hard drive and the key, and they are now in separate, secure locations.
As for why not move the backups off-site too - it sounds like that is the long-term plan, and this is just the stop-gap for prisons that haven't moved over to it yet.
Don't understand evolution in what way? Why do you think it's just "pseudo scientific hand waving"? The GP's point (which I understood to be that there are reasons why evolutionary pressures might push in favour of a longer life expectancy than required just to reproduce) sounds reasonable to me - I'm genuinely curious to know what the misunderstanding is.
It would just be nice to have a bit of balance. I don't think we should scrap online anonymity because some of its uses, in opposing tyrannical powers, whistleblowing and similar, are too important.
But we should still recognise that it has costs. Anonymous online abuse can and does have very serious consequences, including depression and suicides. Too often the argument is presented as one-sided.
That's a pretty naive view of what lawyers do and when they're needed. A lawyer is just an expert in certain things, and they assist people who need to do something they aren't themselves an expert at: - If you want to present a persuasive case in court, you want someone who is an expert in reviewing and presenting evidence. A lawyer can be that person
You also want someone who can explain the case to the court in a persuasive way. A lawyer can be that person. - If you want to prepare a contract that does what it's meant to you need someone who is an expert in precise writing. A lawyer can be that person.
Moreover your points about society are just flat-out wrong. If you look back at the societies of history you will almost always find lawyers, or people offering an equivalent service. I say "almost" because I'm sure there will prove to be an exception, but after a flick through the Wikipedia entries for the major historical civilisations I couldn't find any.
And the idea that laws are complicated because lawyers want them to be complicated is a nice soundbite with no substance. Laws are complicated because the world is complicated. They are an attempt to make clear rules in a world that isn't made up of simple black-and-white issues. They're full of political compromises. And they're drafted by human beings who make mistakes. If the only thing keeping laws complicated was that it was being done deliberately, don't you think we would have fixed that by now?
The sweeping statement was that Greenpeace "don't give a flying fuck about the environment". That the CEO flies to work seems pretty hypocritical to me, I just don't think it means that the whole organisation is ambivalent about the environment.
That article only mentions the word Marx once and doesn't use it to describe the founder's views - not really sure what you were trying to prove with it?
Maybe you could point me to Greenpeace's campaign to stop you driving a car. Their website specifically says they aren't anti car, and they are campaigning for cleaner cars (which isn't really consistent with not wanting any cars at all) but I suppose you'd say that that's what they would say...
When I think of products derived from animals I tend to think of things like milk and eggs - both sources of B12, both things that vegetarians eat - not "shit and fur".
I think you've managed the trifecta there: 1. Sweeping statements without any explanation or evidence. 2. Use of the word "marxism" in a way that means nothing at all. 3. Claim that those on the left are just trying to oppress you (again without any explanation or evidence, obviously).
Brianna Wu saying "every man" is just like a racist saying "every Jew", and it also makes it difficult to take what are certainly very real issues seriously.
Some people would think that you put "every man" in quotation marks because it's a quotation, but it isn't. Brianna Wu does not use the phrase "every man" a single time. She doesn't claim that all men are sexist, or say anything like it, so you can safely put your righteous indignation aside.
The biggest generalisation that she does make is saying that "it’s telling that men in the gaming industry, or simply commentators, refuse to listen to the reality of these situations and try to help" - which seems borne out by reactions like assuming her article is a sexist overgeneralisation when you clearly haven't read it.
The court actually took a pretty sensible view on this, I think.
The judge's reasoning was that the use of data that was recovered and stored was (as a matter of law) subject to the same test of reasonableness as what could be recovered in the first place. He considered trying to decide how long was reasonable now, but decided that he wasn't in a position to do so, since he didn't know how the investigation would go. Better for a later court, looking back on all the facts, to decide whether what was done was reasonable, than for him to try to decide what would be reasonable based on a guess as to what would happen.
In other words, there are limits on storage and use of the data, although they aren't rigid, and a court may be called on to decide whether they have been breached at a later date.
[Writs of assistance] were permanent and even transferable: the holder of a writ could assign it to another. Any place could be searched at the whim of the holder, and searchers were not responsible for any damage they caused. This put anyone who had such a writ above the law. [Wikipedia]
[The court grants] a warrant to obtain emails and other information from a "Gmail" account, which is hosted by Google, Inc., and to permit a search of those emails for certain specific categories of evidence. [Judgment in this case]
I think it is easy to imagine circumstances where what you call a 'blanket' search - a search for specific categories of evidence, but which isn't limited by particular approved keywords - would be justified. I would expect it to be common, because I would expect it to be the only reasonable way to conduct the search in a great many cases.
I am a litigator. We regularly conduct similar searches during what Americans would call discovery - the pre-trial process where you look for evidence. Even if you know exactly what sort of thing you're looking for and are using specialist software designed for this process, it can take hundreds of man-hours and cost well over a hundred thousand dollars to search a large body of correspondence. I can tell you from experience that it is very difficult to pick keywords in advance without making them incredibly broad. If the person may have done something that they don't want to set out explicitly in an email, it can easily be impossible.
There is a strong public interest in effectively investigating crimes and bringing the perpetrators to justice. There has to be some mechanism to get access to email correspondence in order to conduct that investigation. In a big investigation, I can't see that it would be reasonable to require Google to carry out the searches required - it should be done by the police. I therefore think it is entirely plausible that a 'blanket' search warrant would be granted, and I haven't seen any reason not to trust the judge's assessment - after all, he has heard the evidence and you haven't.
How do you square the fact that you say in relation to the password question it would be impossible to prove, but when considering the other examples you are happy to draw inferences if there is sufficient surrounding evidence. Why can't you draw inferences from surrounding evidence when considering the question of whether someone remembers a password?
First, your factors that might make someone not remember a password are all real, but the judge can take them into account. The judge can weigh up the different possibilities - that's what they are employed and trained to do - and decide whether it's plausible that the defendant cannot recall the password. Often they will probably conclude that the prosecution hasn't proved that the defendant could remember the password; sometimes, though, there will be enough evidence. Unless you are arguing that there is no amount of evidence that can prove this beyond reasonable doubt - in which case, see my second point, which is that this is not restricted to this situation - I don't think your factors prevent the law working (although obviously they must be borne in mind).
Second, your example of the seemingly pre-meditated murder is at the extreme end of the evidence available, but there are lots of situations that are much more difficult. For example: i. A person gives incorrect financial information to an investor and profits as a result. If they knew it was incorrect they may be guilty of fraud. Did they know it was incorrect at the time? ii. A person is a passenger in a stolen car. If they knew it to be stolen at the time they may be guilty of an offence. Did they know it was stolen when they got in (assume they weren't involved in the theft)? iii. An accountant receives money from his client, which unknown to him was stolen. If he suspected at the time that the client might be engaged in criminal conduct, he may be guilty of a money laundering offence. Did he suspect?
You could find hundreds more examples - those are just three that occurred to me off the top of my head, and probably aren't the most troublesome. The point is that proving whether a defendant actually knew a particular fact, or actually had a particular thought, is a common issue in criminal prosecutions. It can be difficult to prove, but it's not impossible and the courts are used to dealing with these types of case.
I suggested a range of factors in the GGP post that would suggest he had or had not forgotten.
I don't see how this is in principle harder than other state of mind questions - these are all hard, but they are an inevitable part of the criminal law.
Slashdot Mirror
I see you've chosen not to engage with any actual argument, and chose instead to make a vague claim of superiority with no explanation. An excellent strategy for when you have no arguments to make but don't want to admit it, such as if you made up a disparaging claim, but got called on it.
I think that those are perfectly reasonable questions. It's not something that you think about a lot as a lawyer - at least not explicitly - because you get so used to this pattern.
Thinking about it, it might be easier to explain this by taking the two steps in the opposite order.
Reasonableness
I don't agree that reasonableness is the bane of all our laws. It's an important safeguard - the point is that we are dealing with subjective judgments or subjective feelings, but we want a safeguard so that someone can't be liable because someone completely overreacted to an innocent remark, or a police officer completely overreacted to very minor evidence.
The question that this is asking is "could a reasonable person, in the position of the victim, have been put in sustained fear" (or in your police example, could a reasonable police officer put in the position of the officer in question have suspected X). The reasonable person is assumed to be of reasonable firmness and resolve, to take sensible logical decisions etc. Note that the question is could a reasonable person, not would they - the person does not have to act in the way that the court thinks a reasonable person would probably act, they just have to act in a way that falls within the spectrum of actions that the reasonable person might take.
In practice, where the person is an expert the court will be slow to find that they have acted unreasonably, especially if they act within the bounds of normal practice in their profession. In principle I think that is sensible - the court is meant to check excesses, not ensure that every officer meets absolute best practice. However it does seem like the pendulum has swung too far at present, particularly in the United States, and I wonder if the fact that US judges are highly politicized means that you are likely to get judges who are more likely to side with the police (I don't mean that they are being swayed by thoughts of rewards for siding with the police, just that the executive is likely to appoint judges who they know take a more pro-executive view).
The subjective limb
This is a straightforward evidential point - straightforward conceptually, that is, not necessarily easy to prove. Subject to the applicable rules of evidence, anything that is relevant can be used to prove that the person was fearful - I'm not aware of CAT scans having been used, but expert evidence from psychiatrists, therapists, police support officers and so on are all used.
Proving that someone was fearful is obviously difficult since it requires the court to try to establish what was in their mind. There are three points though that I think tend to mitigate that problem:
1. This is not an isolated difficulty - the courts are frequently required to establish what was in someone's mind (did she intend to stab him?) and have a lot of practice at it.
2. The criminal standard of proof applies - so the prosecution has to establish beyond reasonable doubt that the person was fearful.
3. They aren't looking at this as an isolated question - they can look at all the circumstances. If, in answer to the other limb of the test, the court has concluded that the defendant's behaviour would have put a reasonable person in sustained fear, they are going to find it rather easier to conclude that this victim was, in fact, in sustained fear. For example, if you make repeated and plausible death threats that the court thinks would have terrorized a reasonable person, and the victim claims that he was left fearful by them, you are likely to find that the court is not very receptive to the argument that the victim is faking it.
As a final point, I don't think it can all be quantified objectively. That, however, is true of an awful lot of criminal laws, even the seemingly straightforward ones. My view is that it's an inevitable product of the fact that we live in a confusing and complicated world.
So where's the bit where she calls testosterone "deeply harmful and limiting"? It's certainly not in the bit you quoted.
I read that quote as saying that they should get rid of the stereotypically girly-girl "ladyfig" series and get rid of the stereotypically male, testosterone-charged macho combat, and make "products that foster creativity and imagination that children of all genders will adore". I.e. she's talking about the lego playsets not men. I think that's obvious from the transcript, but you can also tell that because when she talks about the "macho testosterone" she puts up a picture of a lego figure in combat, not a picture of a human male.
She's pretty outspoken and not afraid to make a point. If she was really saying that testosterone was a negative trait in males don't you think she would have said it, rather than leaving it as an inference that, reading the replies to your comments, nobody except you is picking up on?
And if you're still sure that she meant to denigrate all men, if the most egregious example you've been able to find is an, at most, ambiguous and oblique reference to testosterone, don't you think you might be blowing this out of proportion?
This point has been made further down the comment thread, but just to point out: this claim is untrue.
Belial6 has said that the video in which the comment is made is the second part of the video on Lego. You can watch the video at https://www.youtube.com/watch?v=oe65EGkB9kA. You can also review a full transcript at http://www.feministfrequency.com/2012/02/lego-gender-part-2-the-boys-club/.
From both you will see that the statements that Belial6 is relying on are never made. This claim is just not true.
No - there's an objective element to this test as well. Where is says "reasonably to be in sustained fear", that creates a test with two limbs:
1. Was the victim actually in sustained fear?
2. Could the statements have put a reasonable person in the position of the victim in sustained fear?
A threat that obviously wasn't serious would fail the second limb.
(Source: I am a lawyer (although not in this jurisdiction) and this is a common way to formulate criminal laws.)
First, it's pretty obvious that jeffmeden was talking about privacy in terms of the car's location, not "everything that happens in and outside your car".
I see. That's even *worse*. The government absolutely does not have permission to track you.
Second, everything you do involves a tradeoff of privacy, safety, freedom and a dozen other things.
Nonsense, nonsense, nonsense. Going out voluntarily != giving the government permission to track you.
The idea that you can be some sort of privacy and freedom absolutist who never trades either of them for anything is just nonsense.
You're spewing forth straw men. The main point was that the government should not be tracking people and violating their right to privacy. You have privacy and constitutional rights even on public roads.
This is incoherent.
Your first point is that it is worse if the car's location is not private than if "everything that happens in and outside your car" is not private. That's just obvious rubbish.
The remainder of your comment is just saying repeatedly that "the government should not be tracking people". First, this is a strawman - there is a difference between vehicle-to-vehicle communication and centralised tracking. Second, it's not an argument, it's just a soundbite. You aren't engaging with the issue: how much erosion of your privacy would be a reasonable price to pay to make safe, driverless cars a reality?
That transit conduit has a value and it is only because of government that I cannot get some value out of it.
Government is the source of your land rights - you have rights to control what happens with your land because of the laws enacted by society, through the Government. Your whole point here is incredibly wrong-headed.
And - really? Assuming you can get around the whole rights-without-Government issue, you don't think there are any other obstacles to monetizing that airspace? Or do you just prefer to blame "government" for every perceived ill, because you don't really understand?
Will they? There are a lot of advantages to running this in Ireland: low tax rates without the negative publicity of operating in a tax haven, other favourable financial and tax rules that allow foreign companies to book their profits there to further reduce their tax bills, a skilled workforce, good infrastructure, and all the up-front costs that come from building and equipping the data centre in the first place have been paid already. Call me cynical, but I'm not convinced that many data centres will move if Irish law allows the authorities to get this data.
Do you have a source for that malaria fact? I just wonder whether there's maybe more to it than just its effectiveness in newborns.
but privacy, as you note, is pretty close to the bottom since your car location is most certainly other people's business as soon as you take it on a public road.
This is absolutely false. People can look at your car, yes, but that doesn't mean everything that happens in and outside your car isn't private. I'd rather have freedom and privacy than safety, and you'd think everyone in a country that's supposed to be "the land of the free and the home of the brave" would agree with me. I don't want the government having control over my vehicle, and all software on the vehicle should be 100% open source, and all hardware should be open as well. No black boxes, and no proprietary garbage. There's just too much room for abuse, and in a free country, that's all it should take to oppose it.
First, it's pretty obvious that jeffmeden was talking about privacy in terms of the car's location, not "everything that happens in and outside your car". Your comment doesn't show that his point is "absolutely false" unless you completely misread what he said.
Second, everything you do involves a tradeoff of privacy, safety, freedom and a dozen other things. If you go outside you lose some privacy; if you get in a car and drive in public you lose some privacy and some safety. The idea that you can be some sort of privacy and freedom absolutist who never trades either of them for anything is just nonsense.
There are plenty of solutions to this problem that only marginally reduce security. For example, keep copies of the encryption keys on index cards in a safe at the Ministry of Justice head office. An attacker would need both the backup hard drive and the key, and they are now in separate, secure locations.
As for why not move the backups off-site too - it sounds like that is the long-term plan, and this is just the stop-gap for prisons that haven't moved over to it yet.
Don't understand evolution in what way? Why do you think it's just "pseudo scientific hand waving"? The GP's point (which I understood to be that there are reasons why evolutionary pressures might push in favour of a longer life expectancy than required just to reproduce) sounds reasonable to me - I'm genuinely curious to know what the misunderstanding is.
I don't think the GP is saying that at all.
It would just be nice to have a bit of balance. I don't think we should scrap online anonymity because some of its uses, in opposing tyrannical powers, whistleblowing and similar, are too important.
But we should still recognise that it has costs. Anonymous online abuse can and does have very serious consequences, including depression and suicides. Too often the argument is presented as one-sided.
That's a pretty naive view of what lawyers do and when they're needed. A lawyer is just an expert in certain things, and they assist people who need to do something they aren't themselves an expert at:
- If you want to present a persuasive case in court, you want someone who is an expert in reviewing and presenting evidence. A lawyer can be that person
You also want someone who can explain the case to the court in a persuasive way. A lawyer can be that person.
- If you want to prepare a contract that does what it's meant to you need someone who is an expert in precise writing. A lawyer can be that person.
Moreover your points about society are just flat-out wrong. If you look back at the societies of history you will almost always find lawyers, or people offering an equivalent service. I say "almost" because I'm sure there will prove to be an exception, but after a flick through the Wikipedia entries for the major historical civilisations I couldn't find any.
And the idea that laws are complicated because lawyers want them to be complicated is a nice soundbite with no substance. Laws are complicated because the world is complicated. They are an attempt to make clear rules in a world that isn't made up of simple black-and-white issues. They're full of political compromises. And they're drafted by human beings who make mistakes. If the only thing keeping laws complicated was that it was being done deliberately, don't you think we would have fixed that by now?
The sweeping statement was that Greenpeace "don't give a flying fuck about the environment". That the CEO flies to work seems pretty hypocritical to me, I just don't think it means that the whole organisation is ambivalent about the environment.
That article only mentions the word Marx once and doesn't use it to describe the founder's views - not really sure what you were trying to prove with it?
Maybe you could point me to Greenpeace's campaign to stop you driving a car. Their website specifically says they aren't anti car, and they are campaigning for cleaner cars (which isn't really consistent with not wanting any cars at all) but I suppose you'd say that that's what they would say...
When I think of products derived from animals I tend to think of things like milk and eggs - both sources of B12, both things that vegetarians eat - not "shit and fur".
I think you've managed the trifecta there:
1. Sweeping statements without any explanation or evidence.
2. Use of the word "marxism" in a way that means nothing at all.
3. Claim that those on the left are just trying to oppress you (again without any explanation or evidence, obviously).
Brianna Wu saying "every man" is just like a racist saying "every Jew", and it also makes it difficult to take what are certainly very real issues seriously.
Some people would think that you put "every man" in quotation marks because it's a quotation, but it isn't. Brianna Wu does not use the phrase "every man" a single time. She doesn't claim that all men are sexist, or say anything like it, so you can safely put your righteous indignation aside.
The biggest generalisation that she does make is saying that "it’s telling that men in the gaming industry, or simply commentators, refuse to listen to the reality of these situations and try to help" - which seems borne out by reactions like assuming her article is a sexist overgeneralisation when you clearly haven't read it.
The court actually took a pretty sensible view on this, I think.
The judge's reasoning was that the use of data that was recovered and stored was (as a matter of law) subject to the same test of reasonableness as what could be recovered in the first place. He considered trying to decide how long was reasonable now, but decided that he wasn't in a position to do so, since he didn't know how the investigation would go. Better for a later court, looking back on all the facts, to decide whether what was done was reasonable, than for him to try to decide what would be reasonable based on a guess as to what would happen.
In other words, there are limits on storage and use of the data, although they aren't rigid, and a court may be called on to decide whether they have been breached at a later date.
"No difference"?
[Writs of assistance] were permanent and even transferable: the holder of a writ could assign it to another. Any place could be searched at the whim of the holder, and searchers were not responsible for any damage they caused. This put anyone who had such a writ above the law. [Wikipedia]
[The court grants] a warrant to obtain emails and other information from a "Gmail" account, which is hosted by Google, Inc., and to permit a search of those emails for certain specific categories of evidence. [Judgment in this case]
Yep, exactly the same...
Who else is going to pay the neutral third party? The tooth fairy?
Whoever you choose is going to be paid by the state.
I think it is easy to imagine circumstances where what you call a 'blanket' search - a search for specific categories of evidence, but which isn't limited by particular approved keywords - would be justified. I would expect it to be common, because I would expect it to be the only reasonable way to conduct the search in a great many cases.
I am a litigator. We regularly conduct similar searches during what Americans would call discovery - the pre-trial process where you look for evidence. Even if you know exactly what sort of thing you're looking for and are using specialist software designed for this process, it can take hundreds of man-hours and cost well over a hundred thousand dollars to search a large body of correspondence. I can tell you from experience that it is very difficult to pick keywords in advance without making them incredibly broad. If the person may have done something that they don't want to set out explicitly in an email, it can easily be impossible.
There is a strong public interest in effectively investigating crimes and bringing the perpetrators to justice. There has to be some mechanism to get access to email correspondence in order to conduct that investigation. In a big investigation, I can't see that it would be reasonable to require Google to carry out the searches required - it should be done by the police. I therefore think it is entirely plausible that a 'blanket' search warrant would be granted, and I haven't seen any reason not to trust the judge's assessment - after all, he has heard the evidence and you haven't.
How do you square the fact that you say in relation to the password question it would be impossible to prove, but when considering the other examples you are happy to draw inferences if there is sufficient surrounding evidence. Why can't you draw inferences from surrounding evidence when considering the question of whether someone remembers a password?
I would make two points in response.
First, your factors that might make someone not remember a password are all real, but the judge can take them into account. The judge can weigh up the different possibilities - that's what they are employed and trained to do - and decide whether it's plausible that the defendant cannot recall the password. Often they will probably conclude that the prosecution hasn't proved that the defendant could remember the password; sometimes, though, there will be enough evidence. Unless you are arguing that there is no amount of evidence that can prove this beyond reasonable doubt - in which case, see my second point, which is that this is not restricted to this situation - I don't think your factors prevent the law working (although obviously they must be borne in mind).
Second, your example of the seemingly pre-meditated murder is at the extreme end of the evidence available, but there are lots of situations that are much more difficult. For example:
i. A person gives incorrect financial information to an investor and profits as a result. If they knew it was incorrect they may be guilty of fraud. Did they know it was incorrect at the time?
ii. A person is a passenger in a stolen car. If they knew it to be stolen at the time they may be guilty of an offence. Did they know it was stolen when they got in (assume they weren't involved in the theft)?
iii. An accountant receives money from his client, which unknown to him was stolen. If he suspected at the time that the client might be engaged in criminal conduct, he may be guilty of a money laundering offence. Did he suspect?
You could find hundreds more examples - those are just three that occurred to me off the top of my head, and probably aren't the most troublesome. The point is that proving whether a defendant actually knew a particular fact, or actually had a particular thought, is a common issue in criminal prosecutions. It can be difficult to prove, but it's not impossible and the courts are used to dealing with these types of case.
I suggested a range of factors in the GGP post that would suggest he had or had not forgotten.
I don't see how this is in principle harder than other state of mind questions - these are all hard, but they are an inevitable part of the criminal law.