Archive for the ‘law’ Category

Americans, We Love Our Freedom   2 comments

But, it turns out, we actually don’t like everybody’s freedom.  Just ours.  As in, “mine”, really.  Yours, not so much.

From the American Journal of Political Science, Vol. 41, No. 1 (Jan., 1997), pp. 245-269

Citizen initiatives that restrict civil rights experience extraordinary electoral success: voters have approved over three-quarters of these, while endorsing only a third of all initiatives and popular referenda.

Now, of course, this doesn’t state how these outstanding civil rights experiences were resolved (if indeed they were).  They could have been resolved via a ballot initiative, or an “activist judge”, or a legislature passing some additional legislation.  I haven’t found any similar analysis of resolutions to buck up any one of those three.  However, it’s pretty clear that historically, Americans are all on board with voting away rights of others.

More here, here, here, and here.

Posted September 20, 2010 by padraic2112 in law

Prop 8 In California Ruled Unconstitutional   Leave a comment

I encourage anyone who is about to explode onto the blogosphere with commentary to take several moments and read the entire decision.

Posted August 4, 2010 by padraic2112 in law

Why You Shouldn’t Like Obama’s Pick for SCOTUS   1 comment

Thankfully (since I don’t really have the time or the expertise to write this analysis), other people have done the work for me.

From Greenwald’s piece:

Beyond the disturbing risks posed by Kagan’s strange silence on most key legal questions, there are serious red flags raised by what little there is to examine in her record.  I’ve written twice before about that record — here (last paragraph) and here — and won’t repeat those points.  Among the most disturbing aspects is her testimony during her Solicitor General confirmation hearing, where she agreed wholeheartedly with Lindsey Graham about the rightness of the core Bush/Cheney Terrorism template:  namely, that the entire world is a “battlefield,” that “war” is the proper legal framework for analyzing all matters relating to Terrorism, and the Government can therefore indefinitely detain anyone captured on that “battlefield” (i.e., anywhere in the world without geographical limits) who is accused (but not proven) to be an “enemy combatant.”

Those views, along with her steadfast work as Solicitor General defending the Bush/Cheney approach to executive power, have caused even the farthest Right elements — from Bill Kristol to former Bush OLC lawyer Ed Whelan — to praise her rather lavishly.  Contrast all of that with Justice Stevens’ unbroken record of opposing Bush’s sweeping claims of executive power every chance he got, at times even more vigorously than the rest of the Court’s “liberal wing,” and the risks of a Kagan nomination are self-evident.

Scott Horton’s take is a little more nuanced, but essentially the same:

My suspicion–and it’s only a suspicion–is that Kagan is a liberal in the sense of the Kennedy and Johnson Administrations, someone who has faith in the power of the executive to shape a better and more just state. She pays lip service to the limitations on executive authority contained in the Constitution, but she’s generally in the thrall of executive power.

Stuart Taylor, Jr. at The Atlantic chimes in:

But on presidential power and terrorism, she is more of a known quantity.

Justice Stevens led the Court’s assault on the Bush Administration’s sweeping claims of presidential and congressional power to wage war against terrorism. In three big decisions in 2004, 2006, and 2008, narrow liberal majorities — with swing-voting Anthony Kennedy providing the fifth vote — for the first time asserted judicial power to review presidential detentions of alleged “enemy combatants” seized and held abroad. Stevens and his allies also invalidated the rules decreed by Bush for “military commission” trials of foreigners for alleged war crimes and severely restricted interrogations of suspected terrorists.

Kagan has had no occasion to revisit those precise issues as solicitor general. But on somewhat analogous issues — both in her 2009 confirmation testimony and in defending Obama’s continuation of some Bush policies that left-liberals reviled — she has sought to limit the reach of the 2008 decision and has firmly rejected the stance of the left.
… [however, he concludes]…

Speaking as a moderate independent, I like everything about Kagan that the left dislikes.

Additional commentary from The American Conservative:

Perhaps they are all too tired out from combating Sotomayor’s non-existent racism that they don’t have the energy to resist a nominee who appears to be a willing enabler of the worst excesses of the national security state. In reality, we all know that most Republicans have no interest in checking those excesses, and many of them have become so attached to defending such excesses that it has become part of their political identity. To the extent that most Republicans are content with or not overly concerned about Kagan, because she seems to line up with them on some of the issues on which the GOP has been appallingly bad, progressives, libertarians and small-government conservatives have reason to be worried.

And from The American Prospect:

Presumptive front-runner Elena Kagan, while an attractive candidate in some respects, has a record on civil liberties and executive power that strongly suggests she would not be a liberal in this mold either. This would be bad for the development of progressive constitutional values.

Of course, the views of the general political blogosphere are all over the place.  I’m inclined to provisionally agree with Mr. Thompson over at the League of Ordinary Gentlemen:

When Kagan is confirmed, it will be but one more step in the long and unabated pattern of Congressional acquiescence to the Executive, and abdication of its own institutional responsibilities that I identified a while back.  It would certainly be helpful if they realized at some point that their interests as Congress-lizards are not the same as the interests of their respective parties, and are definitely not the same as the interests of the Executive Branch.  We do not live in a parliamentary system, and Congress is supposed to be a coequal branch.  Unfortunately, Congress seems to think otherwise.

and from the comment thread on that post:

It would be nice if the Republicans at least tried to object on executive power grounds. They haven’t, and it doesn’t look like they’re expecting to seriously contest her nomination in general. This is most likely because they actually like her positions on executive power, much as they actually liked the Dick Cheney view of executive power. This does not excuse the Congressional Democrats, who will continue their well-established pattern of spinelessly acceding to the wishes of the Executive branch.

Since we don’t actually have a body of case law decisions to look at, we don’t know for sure that Kagan will be as staunch a supporter of the unitary executive as Mark fears.  However, given the fact that we still have The Patriot Act and we still have warrantless wiretapping, I’m disinclined to give the Administration a pass on this.

David Brooks and Andrew Sullivan both seem largely unimpressed with her conflict-avoidance (Brooks first):

She seems to be smart, impressive and honest — and in her willingness to suppress so much of her mind for the sake of her career, kind of disturbing.

Her life, so far as one can tell, is her career, and her career has been built by avoiding any tough or difficult political or moral positions, eschewing any rigorous intellectual debate in which she takes a clear stand one way or the other, pleasing every single authority figure she has encountered, and reveling in the approval of the First Class Car Acela Corridor elite.

I’m not so enamored of bashing elites, but it does seem pretty odd to me that someone who is being positioned to be a Final Arbiter of conflict in our society has so little public expression of the ability to be involved in conflict.

Posted May 11, 2010 by padraic2112 in law, politics, Uncategorized

Yet Another Sign That Our IP Laws Are Messed UP   Leave a comment

BBC News reports that Microsoft has lost an appeal in its court case against i4i.

The patents cover the use of XML, a mark-up language that preserves data formats across different programs.

The judgement also required Microsoft to remove the i4i technology from its Office software suite and stop selling the infringing programs.

The injunction on sales began in January 2010 and applied to any Microsoft Office software, specifically Word 2003 and 2007, containing the infringing patents.

Since it lost the first round of the legal battle, Microsoft has been stripping the disputed technology from its Office products.

Soon after losing the initial case, Microsoft filed an appeal asking the court to re-think its decision. In December 2009, a panel of judges upheld the initial ruling.

Now, I’m not one to jump to Microsoft’s defense, but let’s be clear here… if I’m reading i4i’s patent correctly, they’re not patenting *a* method for using XML.  From this post:

Now, the patent owned by I4i does not claim to cover the idea of custom text transformation. It very clearly claims the right to an invention that is defined concisely as used to split marked up text into raw text plus a tag map.

They’ve patented creating XSLTXML is an open standard!  They’ve basically been awarded a patent for using an open standard the way the open standard defines it ought to be used.  Here’s how XSLT works, in diagram shorthand:

The XSLT processor ordinarily takes two input documents – an XML source document, and an XSLT stylesheet – and produces an output document. The XSLT stylesheet contains a collection of template rules: instructions and other directives that guide the processor in the production of the output document. — Wikipedia

So, if I have marked up text (the XML document) and a plain text document (the Result Document), creating an XSLT stylesheet violates their patent.

The only difference between the diagram above and the one in Figure 4 of their patent is that they drew a can and labeled it “Primary Storage”.  Again, according to Wikipedia… “a patent application must include one or more claims defining the invention which must be new, inventive, and useful or industrially applicable.”

More blog posts on the topic here, here, and here.  Several legal blog posts defending the merits of i4i’s case, but it seems to me that the legal analysis presumes that the original patent isn’t on a method that is, yanno, part of the concept of the specification itself.

Sure, likely Microsoft knew about i4i’s patent.  I’m not so sure I’d fault a company for trying to drive what appears to this reader to be a blatant patent troll out of business.

Posted March 12, 2010 by padraic2112 in law, tech, Uncategorized

Self-Referential Idiocy!   2 comments

In the spirit of the last post, we have this gem courtesy of Lowering The Bar:

In 2007, an Islington officer ticketed an Islington vehicle, but the department that got the ticket appealed.  Because the department is not a different entity, in legal terms the council was appealing a ticket it got from the council, and under the rules above, the council was hearing its own appeal.  After the council rejected its appeal, it then appealed again to the Parking Adjudicator.  But having appealed, it then presented no evidence, and the Adjudicator voided the ticket.  Feeling its appeal had been an outrageous waste of time, the council asked for costs, thus accusing itself of having acted frivolously, vexatiously and/or wholly unreasonably toward itself.  The Adjudicator declined to award costs, pointing out that “[t]he legal status of the two parties in this appeal amounted to one and the same.”

Posted March 6, 2010 by padraic2112 in humor, law

Outsourcing: The Legal Implications   Leave a comment

Overheard on’s jabber server: “It basically says that since Gmail et al are in “possession” of your e-mail, a warrant only needs to be served on them, and it can include a provision that they aren’t allowed to notify the owner.”  (‘it’ being this decision, blogged about here and here)

From the decision:

Thus subscribers are, or should be, aware that their personal information and the contents of their online communications are accessible to the ISP and its employees and can be shared with the government under the appropriate circumstances. Much of the reluctance to apply traditional notions of third party disclosure to the e-mail context seems to stem from a fundamental misunderstanding of the lack of privacy we all have in our e-mails. Some people seem to think that they are as private as letters, phone calls, or journal entries. The blunt fact is, they are not.

District Judge Mosman seems to be making an interesting conflation that I find… odd… for a judge to make: “because things technically are a certain way, people should know that they are that way, but… regardless of whether they know it or not, we should treat them that way.”  Why should people know that they are that way?  We expect people to understand the full implications of Internet RFCs and how they interact?  Why should we assume that?  Even if we could assume that, there’s lots of other technical implications that can lead to abuse of legal authority, and those are curtailed on different rationales, why should we treat email differently?

There are a number of inconvenient blunt facts, Judge Mosman.  It’s a blunt fact that your cell phone tracks your whereabouts.  It’s a blunt fact that many people’s cars track their whereabouts.  It’s a blunt fact that I can stand up a laser and a few other bits of technology that are commercially available in the United States, point them at my neighbor’s curtains, and get a nice full blown real audio copy of their conversations (this one’s pricey, but here just for reference that I’m not making that last statement up).

What prevents misuse of these technologies is the mechanism of legal warrant: if someone wants access to this sort of data, they’re required to convince a judge that this information is pertinent to a legal action, get said warrant written, and execute it.  Now, *physical* searches are different from wiretaps; this has long been recognized by courts.  One can argue that monitoring someone’s email is monitoring communications, and thus should be treated more like a wiretap than a physical search.  When you go to court to get permission to wiretap a target, all you have to do is exectute that court order on the telecommunications company, you don’t have to inform the target.  You can also get a warrant for someone’s telephone records, but you don’t have to inform the target.  In that light, it doesn’t seem entirely different from the issue of email, right?

But email *is* different from telephone communications, because you’re not just getting someone’s *current* communications, you’re getting someone’s data store.  This isn’t like someone’s phone records, which is just a call log, this is like having retroactive access to everyone’s phone conversations, backwards in time.

There’s a quantifiable and quantifiable difference here.  Certainly, the question of whether or not the government should be able to execute a warrant on someone’s email store is an outstanding legal question, but “well, it can be done and people should know that it can be done so they can’t expect privacy” seems like a really weak sauce position here…

… and coincidentally, here’s a case where the ruling was found to be precisely the reverse…

In an interesting side note, a federal judge ruled yesterday that jurors in the Bear Stearns case (in which Cioffi and Tannin are accused of making their portfolios sound much healthier than they were) will not be permitted to hear about one email, in which Tannin wrote, “I became very worried very quickly. Credit is only deteriorating. I was worried that this would all end badly and that I would have to look for work.”

Judge Frederic Block ruled that the government’s search warrant filed with Google to obtain access to the e-mail was unconstitutionally broad and “did not comply with the Warrants Clause of the Fourth Amendment.”

What’s the moral of the story?  Well, it’s certainly the case that outsourcing providers have a bunch of your data.  It’s also certainly the case that it’s not currently stated in law what the legal obligations are of such an outsourcing provider vis-a-vis protecting your data from nefariousness, let alone government subpoenas or warrants (nor is there a suitable body of case law).  Heck, many outsourcing providers aren’t even in this country, so there’s no guarantee that even *if* legislation is drawn up (or case law reaches some preponderance of decisions) that you’re going to have U.S. legal protections over your data.

It just means that you ought to keep this sort of thing in mind, when you’re deciding whether or not to outsource…

Posted November 2, 2009 by padraic2112 in law, outsourcing, security, tech

Someone Wanted to Dress as a ‘Jackbooted Thug’ For Halloween   1 comment

Cook County state’s attorney office is subpoening the class records of a bunch of Northwestern students involved in The Innocence Project, apparently because they had the gumption to show that the State of Illinois occasionally convicts innocent people.  From the last article:

After spending three years investigating the conviction of a Harvey, Ill., man accused of killing a security guard with a shotgun blast in 1978, journalism students at Northwestern University say they have uncovered new evidence that proves his innocence.

Their efforts helped win a new day in court for Anthony McKinney, who has spent 31 years in prison for the slaying. But as they prepare for that crucial hearing, prosecutors seem to have focused on the students and teacher who led the investigation for the school’s internationally acclaimed Innocence Project.

From another article:

State’s Attorney Anita Alvarez {rejects} the claim that information gathered by students should be protected under the Illinois Reporter’s Privilege Act.

The newspaper says her office is seeking grades and grading criteria, evaluations of student performance, expenses incurred during the inquiry, the syllabus, e-mails, unpublished student memos, and interviews not conducted on the record, or where witnesses weren’t willing to be recorded.

“If you’re going to put yourself into the role of an investigator, then you need to turn over whatever your notes are,” Alvarez said on Tuesday.

Well, now, this isn’t the case whatsoever, Ms. Alvarez.  Even if Illinois Reporter’s Privilege Act doesn’t cover students taking a journalism course (and that requires a huge stretch of logic in there somewhere), it’s simply not the case that you get to demand everything *and* the kitchen sink from these students, as has been pointed out here and hereChilling effect aside, it’s simply not true that everything about investigators is regarded as discoverable in a court of law.

All that aside, from a purely professional standpoint… could you possibly choose a *worse* way of presenting a public face to the legal and journalistic community?

Posted October 27, 2009 by padraic2112 in law