Archive for the ‘Law’ Category

State of Washington & State of Minnesota v. Trump [Press Resource]

Thursday, February 9th, 2017

State of Washington & State of Minnesota v. Trump 9th Circuit Court of Appeals webpage on case: 17-35105.

The clerk of the Ninth Circuit has created a listing of all the pleading, hearings, etc., in date order (most recent at the top of the list) for your research and reading pleasure.

I won’t repeat the listing here as it would be quickly out of date.

Please include: State of Washington & State of Minnesota v. Trump, as a hyperlink in all your postings on this case.

Your readers deserve the opportunity to read, hear and see the arguments and briefs in this case for themselves.

PS: It appears to be updated after the close of business for the clerk’s office so filings today aren’t reflected on the page.

Court: Posting Standards Online Violates Copyright Law [+ solution]

Wednesday, February 8th, 2017

Court: Posting Standards Online Violates Copyright Law by Trey Barrineau.

From the post:

Last week, the U.S. District Court for the District of Columbia ruled that public-records activist Carl Malamud’s organization, Public.Resource.Org, violated copyright law by publicly sharing standards that are used in laws such as building codes. It also said organizations that develop these standards, including those used in the fenestration industry, have the right to charge reasonable fees to access them. Malamud told DWM in an e-mail that he’ll appeal the ruling.
… (emphasis in original)

I was working on a colorful rant, invoking Mr. Bumble in Charles Dickens’s Oliver Twist:

“If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass- a idiot.

based on the report of the decision when I ran across the full court opinion:

AMERICAN SOCIETY FOR TESTING AND MATERIALS, et al., Plaintiffs, v. PUBLIC.RESOURCE.ORG, INC., Defendant. Case No. 13-cv-1215 (TSC)

The preservation of copyright despite being referenced in a law and/or regulation (pages 19-24) is one of the stronger parts of the decision.

In part it reads:

Congress was well aware of the potential copyright issue posed by materials incorporated by reference when it crafted Section 105 in 1976. Ten years earlier, Congress had extended to federal agencies the authority to incorporate private works by reference into federal regulations. See Pub. L. No. 90-23, § 552, 81 Stat. 54 (1967) (codified at 5 U.S.C. § 552) (providing that “matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register”). However, in the Copyright Act of 1976, Congress made no mention of these incorporated works in § 105 (no copyright for “any work of the United States Government”) or any other section. As the House Report quoted above indicates, Congress already carefully weighed the competing policy goals of making incorporated works publicly available while also preserving the incentives and protections granted by copyright, and it weighed in favor of preserving the copyright system. See H.R. Rep. No. 94-1476, at 60 (1976) (stating that under § 105 “use by the Government of a private work would not affect its copyright protection in any way”); see also M.B. Schnapper v. Foley, 667 F.2d 102, 109 (D.C. Cir. 1981) (analyzing Copyright Act and holding that “we are reluctant to cabin the discretion of government agencies to arrange ownership and publication rights with private contractors absent some reasonable showing of a congressional desire to do so”).

However, recognizing the importance of public access to works incorporated by reference into federal regulations, Congress still requires that such works be “reasonably available.” 5 U.S.C. § 552(a)(1). Under current federal regulations issued by the Office of the Federal Register in 1982, a privately authored work may be incorporated by reference into an agency’s regulation if it is “reasonably available,” including availability in hard copy at the OFR and/or the incorporating agency. 1 C.F.R. § 51.7(a)(3). Thirteen years later, Congress passed the National Technology Transfer and Advancement Act of 1995 (“NTTAA”) which directed all federal agencies to use privately developed technical voluntary consensus standards. See Pub. L. No. 104-113, 110 Stat. 775 (1996). Thus, Congress initially authorized agencies to incorporate works by reference, then excluded these incorporated works from § 105 of the Copyright Act, and, nearly twenty years later, specifically directed agencies to incorporate private works by reference. From 1966 through the present, Congress has remained silent on the question of whether privately authored standards and other works would lose copyright protection upon incorporation by reference. If Congress intended to revoke the copyrights of such standards when it passed the NTTAA, or any time before or since, it surely would have done so expressly. See Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001) (“Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not . . . hide elephants in mouseholes.”); United States v. Fausto, 484 U.S. 439, 453 (1988) (“[It] can be strongly presumed that Congress will specifically address language on the statute books that it wishes to change.”). Instead, Congress has chosen to maintain the scheme it created in 1966: that such standards must simply be made reasonably available. See 5 U.S.C. § 552(a)(1).
… (emphasis in original, pages 21-23)

Finding to the contrary, that is referencing a privately authored standard as terminating the rights of a copyright holder, creates obvious due process problems.

Some copyright holders, ASTM for example, report sales as a substantial portion of their yearly income. ASTM International 2015 Annual Report gives an annual operating income of $72,543,549, of which, $48,659,345 was from publications. (page 24)

Congress could improve both the “reasonable access” for citizens and the lot of standard developers by requiring:

  • for works incorporated by reference into federal regulations, agencies must secure a license renewable without time limit for unlimited digital reproduction of that work by anyone
  • digital reproductions of such works, whether by the licensing agency or others, must reference the work’s publisher for obtaining a print copy

That gives standard developing organizations a new source of revenue, increases the “reasonable access” of citizens, and if past experience is any guide, digital copies may drive print sales.

Any takers?

Neil M. Gorsuch (Library of Congress, Bibliography)

Thursday, February 2nd, 2017

This bibliography created by the Library of Congress on Neil M. Gorsuch covers articles, books, cases written by Judge Gorsuch and others.

One of the few sane resource collections you will find on Judge Gorsuch.

Share it widely.

State Legislatures For Bloggers and Reporters (Do You Enable Readers or Troll for Donations?)

Friday, January 27th, 2017

The Law Librarians of Congress produce a number of remarkable legal resources for use by member of Congress and the general public.

While not new, their State Legislatures Websites was new to me and merits mentioning.

Presented both as a map image and a more traditional table listing, the webpage offers a curated set of links to state legislatures.

If that doesn’t sound important, consider my comparison of nearly linkless reporting in Actionable Reporting – An Example with my expanded account that included links to pending (or expired) legislation, along with links to the authors of news worthy legislation.

Vague, hand-waving reports of some bill somewhere are good for fund raising but they don’t enable your readers to take effective action.

That’s your call, enabling your readers or trolling for donations.

Bookmark State Legislatures Websites or if you need it fairly often, copy the table into a local page of legal resources for quick reference.

ODI – Access To Legal Data News

Friday, January 13th, 2017

Strengthening our legal data infrastructure by Amanda Smith.

Amanda recounts an effort between the Open Data Institute (ODI) and Thomas Reuters to improve access to legal data.

From the post:

Paving the way for a more open legal sector: discovery workshop

In September 2016, Thomson Reuters and the ODI gathered publishers of legal data, policy makers, law firms, researchers, startups and others working in the sector for a discovery workshop. Its aims were to explore important data types that exist within the sector, and map where they sit on the data spectrum, discuss how they flow between users and explore the opportunities that taking a more open approach could bring.

The notes from the workshop explore current mechanisms for collecting, managing and publishing data, benefits of wider access and barriers to use. There are certain questions that remain unanswered – for example, who owns the copyright for data collected in court. The notes are open for comments, and we invite the community to share their thoughts on these questions, the data types discussed, how to make them more open and what we might have missed.

Strengthening data infrastructure in the legal sector: next steps

Following this workshop we are working in partnership with Thomson Reuters to explore data infrastructure – datasets, technologies and processes and organisations that maintain them – in the legal sector, to inform a paper to be published later in the year. The paper will focus on case law, legislation and existing open data that could be better used by the sector.

The Ministry of Justice have also started their own data discovery project, which the ODI have been contributing to. You can keep up to date on their progress by following the MOJ Digital and Technology blog and we recommend reading their data principles.

Get involved

We are looking to the legal and data communities to contribute opinion pieces and case studies to the paper on data infrastructure for the legal sector. If you would like to get involved, contact us.
…(emphasis in original)

Encouraging news, especially for those interested in building value-added tools on top of data that is made available publicly. At least they can avoid the cost of collecting data already collected by others.

Take the opportunity to comment on the notes and participate as you are able.

If you think you have seen use cases for topic maps before, consider that the Code of Federal Regulations (US), as of December 12, 2016, has 54938 separate but not unique, definitions of “person.” The impact of each regulation depending upon its definition of that term.

Other terms have similar semantic difficulties both in the Code of Federal Regulations as well as the US Code.

Expiring Patents

Tuesday, January 3rd, 2017

Expatents returns a list of patents expiring that day and you can sign up for a weekly digest of expiring patents.

The site claims that over 80% of patents are never commercially exploited.

Are expired patents, that is without commercial exploitation, like articles that are never cited by anyone?

Potential shareholder litigation over the not-so-trivial cost of patents that never resulted in commercial exploitation?

Was it inside or outside counsel that handled the patent filings?

There’s an interesting area for tracing relationships (associations) and expenses.

Constitution Free Zone [The Only Advantage To Not Living In Hawaii]

Wednesday, November 30th, 2016

Know Your Rights: The Government’s 100-Mile “Border” Zone – Map

From the post:

Many people think that border-related policies impact only people living in border towns like El Paso or San Diego. The reality is that Border Patrol’s interior enforcement operations encroach deep into and across the United States, affecting the majority of Americans.

Roughly two-thirds of the United States’ population, about 200 million people, lives within the 100-mile zone that an outdated federal regulation defines as the border zone—that is, within 100 miles of a U.S. land or coastal border.

Although this zone is not literally “Constitution free”—constitutional protections do still apply—the Border Patrol frequently ignores those protections and runs roughshod over individuals’ civil liberties.

Learn more about the government’s 100-mile border zone.

Read the ACLU factsheet on Custom and Border Protection’s 100-mile zone


The ACLU map demonstrates there are no locations in Hawaii where the border zone does not reach.

Now you can name the one advantage of living outside of Hawaii, just in case it comes up on Jeopardy.


In some ways, this map is mis-leading.

The U.S. government runs roughshod over everyone within and without its borders.

Ask the people of Aleppo for tales of the American government. A city rumored to be founded in the 6th millennium BCE, may be about to become the largest graveyard in history.

Be sure to mention that on holiday cards to the Obama White House.

The GCHQ Puzzle Book

Friday, November 4th, 2016

The GCHQ Puzzle Book

The Amazon description:

If 3=T, 4=S, 5=P, 6=H, 7=H … what is 8?

What is the next letter in the sequence: M, V, E, M, J, S, U, ?

Which of the following words is the odd one out: CHAT, COMMENT, ELF, MANGER, PAIN, POUR?

GCHQ is a top-secret intelligence and security agency which recruits some of the very brightest minds. Over the years, their codebreakers have helped keep our country safe, from the Bletchley Park breakthroughs of WWII to the modern-day threat of cyberattack. So it comes as no surprise that, even in their time off, the staff at GCHQ love a good puzzle. Whether they’re recruiting new staff or challenging each other to the toughest Christmas quizzes and treasure hunts imaginable, puzzles are at the heart of what GCHQ does. Now they’re opening up their archives of decades’ worth of codes, puzzles and challenges for everyone to try.
(emphasis in original)

Hard to say if successful completion of the GCHQ Puzzle Book or hacking into GCHQ would be the better way to introduce yourself to the GCHQ.

Depends on which department within GCHQ captures your interest. 😉

Be aware that some pedestrian agencies and their personnel view intrusion into government computers to be crime and punishable as such.

More sophisticated agencies/personnel realize that “…in Jersey, anything is legal so long as you don’t get caught” and/or if you have something of sufficient value to trade.

The “rule of law,” and “letter of the law” stuff is for groundlings. Don’t be a groundling.

British and Irish Legal Information Institute

Tuesday, October 11th, 2016

British and Irish Legal Information Institute

From the webpage:

Welcome to BAILII, where you can find British and Irish case law & legislation, European Union case law, Law Commission reports, and other law-related British and Irish material. BAILII thanks The Scottish Council of Law Reporting for their assistance in establishing the Historic Scottish Law Reports project. BAILII also thanks Sentral for provision of servers. For more information, see About BAILII.

I ran across this wonderful legal resource while researching a legal issue in another post.

Obviously a great resource for legal research and scholars but also I suspect a great source of leisure reading, well, if you like that sort of thing.

The site also offered this handy list of world law resources:

When I said “leisure reading,” I was only partially joking. What we accept now as “the law,” wasn’t always so.

The history of how rights and obligations have evolved over centuries of human interaction are recorded in legislation and case law.

It is a history with all the mis-steps, failures, betrayals and intrigue that are commonplace in any human enterprise.


Bias in Data Collection: A UK Example

Monday, October 10th, 2016

Kelly Fiveash‘s story, UK’s chief troll hunter targets doxxing, virtual mobbing, and nasty images starts off:

Trolls who hurl abuse at others online using techniques such as doxxing, baiting, and virtual mobbing could face jail, the UK’s top prosecutor has warned.

New guidelines have been released by the Crown Prosecution Service to help cops in England and Wales determine whether charges—under part 2, section 44 of the 2007 Serious Crime Act—should be brought against people who use social media to encourage others to harass folk online.

It even includes “encouraging” statistics:

According to the most recent publicly available figures—which cite data between May 2013 and December 2014—1,850 people were found guilty in England and Wales of offences under section 127 of the Communications Act 2003. But the numbers reveal a steady climb in charges against trolls. In 2007, there were a total of 498 defendants found guilty under section 127 in England and Wales, compared with 693 in 2008, 873 in 2009, 1,186 in 2010 and 1,286 in 2011.

But the “most recent publicly available figures,” doesn’t ring true does it?

Imagine that, 1850 trolls out of a total population of England and Wales of 57 million. (England 53.9 million, Wales 3.1 million, mid-2013)


Let’s look at the referenced government data, 25015 Table.xls.

For the months of May 2013 to December 2014, there are only monthly totals of convictions.

What data is not being collected?

Among other things:

  1. Offenses reported to law enforcement
  2. Offenses investigated by law enforcement (not the same as #1)
  3. Conduct in question
  4. Relationship, if any, between the alleged offender/victim
  5. Race, economic status, location, social connections of alleged offender/victim
  6. Law enforcement and/or prosecutors involved
  7. Disposition of cases without charges being brought
  8. Disposition of cases after charges brought but before trial
  9. Charges dismissed by courts and acquittals
  10. Judges who try and/or dismiss charges
  11. Penalties imposed upon guilty plea and/or conviction
  12. Appeals and results on appeal, judges, etc.

All that information exists for every reported case of “trolls,” and is recorded at some point in the criminal justice process or could be discerned from those records.

Can you guess who isn’t collecting that information?

The TheyWorkForYou site reports at: Communications Act 2003, Jeremy Wright, The Parliamentary Under-Secretary of State for Justice, saying:

The Ministry of Justice Court Proceedings Database holds information on defendants proceeded against, found guilty and sentenced for criminal offences in England and Wales. This database holds information on offences provided by the statutes under which proceedings are brought but not the specific circumstances of each case. It is not possible to separately identify, in all cases brought under section 127 of the Communications Act 2003, whether a defendant sent or caused to send information to an individual or a small group of individuals or made the information widely available to the public. This detailed information may be held by the courts on individual case files which due to their size and complexity are not reported to Justice Analytical Services. As such this information can be obtained only at disproportionate cost.
… (emphasis added)

I was unaware that courts in England and Wales were still recording their proceedings on vellum. That would be expensive to manually gather that data together. (NOT!)

How difficult is it from any policy organization, whether seeking greater protection from trolls and/or opposing classes of prosecution based on discrimination and free speech to gather the same data?

Here is a map of the Crown Prosecution Service districts:


Counting the sub-offices in each area, I get forty-three separate offices.

But that’s only cases that are considered for prosecution and that’s unlikely to be the same number as reported to the police.

Checking for police districts in England, I get thirty-nine.


Plus, another four areas for Wales:


The Wikipedia article List of law enforcement agencies in the United Kingdom, Crown dependencies and British Overseas Territories has links for all these police areas, which in the interest of space, I did not repeat here.

I wasn’t able to quickly find a map of English criminal courts, although you can locate them by postcode at: Find the right court or tribunal. My suspicion is that Crown Prosecution Service areas correspond to criminal courts. But verify that for yourself.

In order to collect the information already in the possession of the government, you would have to search records in 43 police districts, 43 Crown Prosecution Service offices, plus as many as 43 criminal courts in which defendants may be prosecuted. All over England and Wales. With unhelpful clerks all along the way.

All while the government offers the classic excuse:

As such this information can be obtained only at disproportionate cost.

Disproportionate because:

Abuse of discretion, lax enforcement, favoritism, discrimination by police officers, Crown prosecutors, judges could be demonstrated as statistical facts?

Governments are old hands at not collecting evidence they prefer to not see thrown back in their faces.

For example: FBI director calls lack of data on police shootings ‘ridiculous,’ ‘embarrassing’.

Non-collection of data is a source of bias.

What bias is behind the failure to collect troll data in the UK?

Hacker-Proof Code Confirmed [Can Liability Be Far Behind?]

Thursday, September 22nd, 2016

Hacker-Proof Code Confirmed by Kevin Hartnett.

From the post:

In the summer of 2015 a team of hackers attempted to take control of an unmanned military helicopter known as Little Bird. The helicopter, which is similar to the piloted version long-favored for U.S. special operations missions, was stationed at a Boeing facility in Arizona. The hackers had a head start: At the time they began the operation, they already had access to one part of the drone’s computer system. From there, all they needed to do was hack into Little Bird’s onboard flight-control computer, and the drone was theirs.

When the project started, a “Red Team” of hackers could have taken over the helicopter almost as easily as it could break into your home Wi-Fi. But in the intervening months, engineers from the Defense Advanced Research Projects Agency (DARPA) had implemented a new kind of security mechanism — a software system that couldn’t be commandeered. Key parts of Little Bird’s computer system were unhackable with existing technology, its code as trustworthy as a mathematical proof. Even though the Red Team was given six weeks with the drone and more access to its computing network than genuine bad actors could ever expect to attain, they failed to crack Little Bird’s defenses.

“They were not able to break out and disrupt the operation in any way,” said Kathleen Fisher, a professor of computer science at Tufts University and the founding program manager of the High-Assurance Cyber Military Systems (HACMS) project. “That result made all of DARPA stand up and say, oh my goodness, we can actually use this technology in systems we care about.”

Reducing the verification requirement to a manageable size appears to be the key to DARPA’s success.

That is rather than verification of the entire program, only critical parts, such as excluding hackers, need to be verified.

If this spreads, failure to formally verify critical parts of software would be a natural place to begin imposing liability for poorly written code.

PS: Would formal proof of data integration be a value-add?

United States Treaties [Library of Congress] – Incomplete – Missing Native American Treaties

Sunday, September 11th, 2016

United States Treaties Added to the Law Library Website by Jennifer González.

From the webpage:

We have added the United States Treaty Series, compiled by Charles I. Bevans, to our online digital collection. This collection includes treaties that the United States signed with other countries from 1776 to 1949. The collection consists of 13 volumes: four volumes of multilateral treaties, eight volumes of bilateral treaties and one volume of an index.

Multilateral Treaties

Bilateral Treaties

Charles I. Bevans did not include the treaties with native Americans listed at Treaties Between the United States and Native Americans, part of the Avalon project at Yale Law School, Lillian Goldman Law Library.

The Avalon project lists thirty treaties from 1778 – 1868, along with links to their full texts.

For your reading convenience, the list follows:

  • Treaty With the Delawares
  • 1782
  • Chickasaw Peace Treaty Feeler
  • 1784
  • Treaty With the Six Nations
  • 1785
  • Treaty With the Wyandot, etc.

  • Treaty With The Cherokee
  • 1786
  • Treaty With the Chocktaw

  • Treaty With the Chickasaw

  • Treaty With the Shawnee
  • 1789
  • Treaty With the Wyandot, etc.

  • Treaty With the Six Nations
  • 1790
  • Treaty With the Creeks
  • 1791
  • Treaty With the Cherokee
  • 1794
  • Treaty With the Cherokee

  • Treaty With the Six Nations

  • Treaty With the Oneida, etc.
  • 1795
  • Treaty of Greenville
  • 1805
  • Chickasaw Treaty
  • 1816
  • Treaty With the Chickasaw
  • 1818
  • “Secret” Journal on Negotiations of the Chickasaw Treaty of 1818

  • Treaty With the Chickasaw : 1818
  • 1826
  • Refusal of the Chickasaws and Choctaws to Cede Their Lands in Mississippi : 1826
  • 1828
  • Treaty With The Potawatami, 1828.
  • 1830
  • Treaty With the Chickasaw : 1830, Unratified
  • 1832
  • Treaty With the Potawatami, 1832.
  • 1852
  • Treaty with the Apache, July 1, 1852.
  • 1853
  • Treaty with the Comanche, Kiowa, and Apache; July 27, 1853
  • 1865
  • Treaty with the Cheyenne and Arapaho; October 14, 1865

  • Treaty with the Apache, Cheyenne, and Arapaho; October 17, 1865.
  • 1867
  • Treaty With the Kiowa, Comanche, and Apache; October 21, 1867.
  • 1868
  • Fort Laramie Treaty : 1868
  • You should draw your own conclusions about why these treaties were omitted from the Bevans edition. Their omission isn’t mentioned or explained in its preface.

    The Court That Rules The World

    Sunday, August 28th, 2016

    The Court That Rules The World by Chris Hamby.

    If the Trans-Pacific Partnership (TPP) and investor-state dispute settlement (ISDS) don’t sound dangerous to you, this series will change your mind.

    Imagine a private, global super court that empowers corporations to bend countries to their will.

    Say a nation tries to prosecute a corrupt CEO or ban dangerous pollution. Imagine that a company could turn to this super court and sue the whole country for daring to interfere with its profits, demanding hundreds of millions or even billions of dollars as retribution.

    Imagine that this court is so powerful that nations often must heed its rulings as if they came from their own supreme courts, with no meaningful way to appeal. That it operates unconstrained by precedent or any significant public oversight, often keeping its proceedings and sometimes even its decisions secret. That the people who decide its cases are largely elite Western corporate attorneys who have a vested interest in expanding the court’s authority because they profit from it directly, arguing cases one day and then sitting in judgment another. That some of them half-jokingly refer to themselves as “The Club” or “The Mafia.”

    And imagine that the penalties this court has imposed have been so crushing — and its decisions so unpredictable — that some nations dare not risk a trial, responding to the mere threat of a lawsuit by offering vast concessions, such as rolling back their own laws or even wiping away the punishments of convicted criminals.

    This system is already in place, operating behind closed doors in office buildings and conference rooms in cities around the world. Known as investor-state dispute settlement, or ISDS, it is written into a vast network of treaties that govern international trade and investment, including NAFTA and the Trans-Pacific Partnership, which Congress must soon decide whether to ratify.

    These trade pacts have become a flashpoint in the US presidential campaign. But an 18-month BuzzFeed News investigation, spanning three continents and involving more than 200 interviews and tens of thousands of documents, many of them previously confidential, has exposed an obscure but immensely consequential feature of these trade treaties, the secret operations of these tribunals, and the ways that business has co-opted them to bring sovereign nations to heel.

    The BuzzFeed News investigation explores four different aspects of ISDS. In coming days, it will show how the mere threat of an ISDS case can intimidate a nation into gutting its own laws, how some financial firms have transformed what was intended to be a system of justice into an engine of profit, and how America is surprisingly vulnerable to suits from foreign companies.

    (emphasis in original)

    Read carefully and take names.

    Few, if any, are beyond one degree of separation from the Internet.

    U.K. Parliament – U.S. Congress : Legislative Process Glossaries

    Monday, August 22nd, 2016

    I encountered the glossary for legislative activity for the U.S. Congress and remembered a post where I mentioned a similar resource for the U.K.

    Rather than having to dig for both of them in the future:

    U.K. Parliment – Glossary

    U.S. Congress – Glossary

    To be truly useful, applications displaying information from either source should automatically tag these terms for quick reference by readers.


    Is UC-San Diego Running A Military Commission?

    Friday, August 19th, 2016

    Will UC-San Diego keep hiding witnesses that could prove accused students innocent? by Greg Piper.

    From the post:

    The University of California-San Diego routinely hides the identity of witnesses that could help students accused of wrongdoing exonerate themselves, departing from its own rules on who is “relevant” to an investigation.

    This policy, which has been applied against accused students for at least the past five years, was not publicly known until 11 months ago. A state appeals court fleshed out its existence in a due-process lawsuit against the school by a student who was found responsible for cheating and expelled.

    That court struck down UCSD’s ruling against Jonathan Dorfman, saying it had no legal reason to withhold the identity of “Student X” – whose test answers Dorfman allegedly copied – from him.

    Arguing before the court, the UC System’s own lawyer admitted that the school had never bothered to ask Student X where he was sitting in class that day in 2011 – potentially preempting its case against Dorfman.

    UC-San Diego has copied the government’s use of “secret” evidence in U.S. military commissions.

    Here UC-San Diego decided who or what was “relevant” to its inquiry, saying:

    When a female judge suggests that UCSD decided “this was enough and we’re not going to give the information to the defense to try to poke holes in it,” Goldstein responds with apparent earnestness: “That is the procedure here.”

    If U.S. prosecutors were so honest, they would echo:

    we’re not going to give the information to the defense to try to poke holes in it,

    That works, only if you have a presumption of guilt. So far as I know, lip service is still payed to the presumption of innocence.

    If prosecutors want a presumption of guilt, they should argue for it openly, and not conceal that as well.

    What’s the “CFR” and Why Is It So Important to Me?

    Wednesday, July 20th, 2016

    What’s the “CFR” and Why Is It So Important to Me? Government Printing Office (GPO) blog, GovernmentBookTalk.

    From the post:

    If you’re a GPO Online Bookstore regular or public official you probably know we’re speaking about the “Code of Federal Regulations.” CFRs are produced routinely by all federal departments and agencies to inform the public and government officials of regulatory changes and updates for literally every subject that the federal government has jurisdiction to manage.

    For the general public these constantly updated federal regulations can spell fantastic opportunity. Farmer, lawyer, construction owner, environmentalist, it makes no difference. Within the 50 codes are a wide variety of regulations that impact citizens from all walks of life. Federal Rules, Regulations, Processes, or Procedures on the surface can appear daunting, confusing, and even may seem to impede progress. In fact, the opposite is true. By codifying critical steps to anyone who operates within the framework of any of these sectors, the CFR focused on a particular issue can clarify what’s legal, how to move forward, and how to ultimately successfully translate one’s projects or ideas into reality.

    Without CFR documentation the path could be strewn with uncertainty, unknown liabilities, and lost opportunities, especially regarding federal development programs, simply because an interested party wouldn’t know where or how to find what’s available within their area of interest.

    The authors of CFRs are immersed in the technical and substantive issues associated within their areas of expertise. For a private sector employer or entrepreneur who becomes familiar with the content of CFRs relative to their field of work, it’s like having an expert staff on board.

    I like the CFRs but I stumbled on:

    For a private sector employer or entrepreneur who becomes familiar with the content of CFRs relative to their field of work, it’s like having an expert staff on board.

    I don’t doubt the expertise of the CFR authors, but their writing often requires an expert for accurate interpretation. If you doubt that statement, test your reading skills on any section of CFR Title 26, Internal Revenue.

    Try your favorite NLP parser out on any of the CFRs.

    The post lists a number of ways to acquire the CFRs but personally I would use the free Electronic Code of Federal Regulations unless you need to impress clients with the paper version.


    Slouching Towards Total Surveillance – Investigatory Powers Bill Update

    Wednesday, June 29th, 2016

    Investigatory Powers Bill 2015-16 to 2016-17.

    Bill Summary:

    A Bill to make provision about the interception of communications, equipment interference and the acquisition and retention of communications data, bulk personal datasets and other information; to make provision about the treatment of material held as a result of such interception, equipment interference or acquisition or retention; to establish the Investigatory Powers Commissioner and other Judicial Commissioners and make provision about them and other oversight arrangements; to make further provision about investigatory powers and national security; to amend sections 3 and 5 of the Intelligence Services Act 1994; and for connected purposes.

    Whatever criticisms you may have of the UK Parliment, you must admit its delivery of legislative information is quite nice.

    Via email today I received notice of “sitting” and “provisional sitting” on the Investigatory Powers Bill. A quick check of their glossary reveals that “sitting” is another term for committee meeting.

    The first “sitting” or committee meeting on this bill will be 11.07.2016.

    A process described on the homepage of this bill as:

    Committee stage – line by line examination of the Bill – is scheduled to begin on 11 July.

    Considering its progress so far, I’m not expecting “line by line examination” to impede its progress.

    Still, it’s not, yet, a law so delay, diversion, dilution, remain possibilities.

    The privacy you protect could well be your own.

    Driving While Black (DWB) Stops Affirmed By Supreme Court [Hacker Tip]

    Tuesday, June 21st, 2016

    Justice Sotomayor captures the essence of Utah v. Strieff when she writes:

    The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.

    The facts are easy enough to summarize, Edward Strieff was seen visiting a home that had been reported (but not confirmed) as a site of drug sales. Officer Frackwell, with no suspicions that Strieff had committed a crime, detained Strieff, requested his identification and was advised of a traffic warrant for his arrest. Frackwell arrested Strieff and while searching him, discovered “a baggie of methamphetamine and drug paraphernalia.”

    Frackwell moved to suppress the “a baggie of methamphetamine and drug paraphernalia” since Officer Frackwell lacked even a pretense for the original stop. The Utah Supreme Court correctly agreed but the Supreme Court in this decision, written by “Justice” Thomas, disagreed.

    The “exclusionary rule” has a long history but for our purposes, it suffices to say that it removes any incentive for police officers to stop people without reasonable suspicion and demand their ID, search them, etc.

    It does so by excluding any evidence of a crime they discover as a result of such a stop. Or at least it did prior to Utah v. Strieff. Police officers were forced to make up some pretext for a reasonable suspicion in order to stop any given individual.

    No reasonable suspicion for stop = No evidence to be used in court.

    That was the theory, prior to Utah v. Strieff

    Sotomayor makes clear in her dissent, this was a suspicionless stop:

    This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, supra, at 8, many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner. See M. Gottschalk, Caught 119–138 (2015). But it is no secret that people of color are disproportionate victims of this type of scrutiny. See M. Alexander, The New Jim Crow 95–136 (2010). For generations, black and brown parents have given their children “the talk”— instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015).

    By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.

    We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner’s Canary 274–283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but. (emphasis in original)

    New rule: Police can stop you at any time, for no reason, demand identification, check your legal status, if you are arrested as a result of that check, any evidence seized can be used against you in court.

    Police officers were very good at imagining reasonable cause for stopping people, but now even that tissue of protection has been torn away.

    You are subject to arbitrary and capricious stops with no disincentive for the police. They can go fishing for evidence and see what turns up.

    For all of that, I don’t see the police as our enemy. They are playing by rules as defined by others. If we want better play, such as Fourth Amendment rights, then we need enforcement of those rights.

    It isn’t hard to identify the enemies of the people in this decision.

    Hackers, you too can be stopped at anytime. Hackers should never carry incriminating USB drives, SIM cards, etc. If possible, everything even remotely questionable should not be in a location physically associated with you.

    Remote storage of your code, booty, etc., protects it from clumsy physical seizure of local hardware and, if you are very brave, enables rapid recovery from such seizures.

    Judicial Decision Making, Pulling Back the Curtain (Miranda v. Arizona)

    Wednesday, June 15th, 2016

    Miranda v. Arizona: Exploring Primary Sources Behind the Supreme Court Case by Stephen Wesson.

    From the post:

    You have the right to remain silent….” These words, and the rest of the legal warning that follows, are so well-known that they’ve almost become a synonym for “You’re under arrest.” They occupy such a familiar place in popular culture that it might seem as though they’d been part of U.S. law for centuries. However, the now-ubiquitous Miranda warning only came into being fifty years ago, when the Supreme Court ruled that the rights of a criminal suspect, Ernesto Miranda, had been violated because he had not been informed of his Constitutional protections against self-incrimination.

    The Library of Congress is marking this landmark anniversary with the launch of Miranda v. Arizona: The Rights to Justice, an online presentation of historical documents that shed light on the arguments around, and the reaction to, the Miranda ruling of 1966. These documents, which include papers written by and for several Supreme Court justices, allow students to explore the issues discussed by the justices as they considered the ramifications of the case. In addition, letters from law enforcement officers and members of the public illuminate the contentious public debate that erupted after the ruling.

    One particularly powerful document for students to analyze is a page from a memorandum that associate justice William Brennan sent to chief justice Earl Warren about the case. Acknowledging that his 21-page response is lengthy, Brennan explains, “this will be one of the the most important opinions of our time…”

    He then focuses on two words from Warren’s opinion that he says go “to the basic thrust of the approach to be taken.” He expounds,

    An important collection of documents, not only as background to Miranda v. Arizona but also as insight into decision making in the Supreme Court.

    Decisions are announced by the media in sound-bite sized chunks, which fail to portray the complexity of Court opinions, much less the process by which they are created.

    I can think of any number of cases that merit this sort of treatment or even deeper, inter-linked collections of documents.


    Microsoft Giveth, Microsoft Taketh Away

    Monday, June 13th, 2016

    Microsoft Revoking Free Fallout 4 Copies Grabbed Due to Xbox Store Error by Ron Witaker.

    From the post:

    Yesterday afternoon, Fallout 4‘s Deluxe Edition Bundle showed up on the Xbox Store for a very attractive price – $0.00. As you can imagine, word of the error spread quickly, and while no numbers are available, you can bet that many people took advantage of the deal to grab a copy for their Xbox One. That version of the game typically runs $109.99, and includes the Season Pass for all the DLC.

    Ron goes on to point out that Microsoft is revoking all licenses obtained due to this error.

    With some exceptions, a sale is a completed act and not subject to revocation by only one of the parties.

    Would be a stronger case if Fallout 4‘s Deluxe Edition Bundle had listed a price of at least $0.01. Can you say why?

    Would costing $0.01 when purchased with other games make a difference?

    Keep an eye out for litigation!

    How to Read a Legal Opinion:… (Attn: Bloggers, Posters, Reporters)

    Monday, June 13th, 2016

    How to Read a Legal Opinion: A Guide for New Law Students by Orin S. Kerr.

    If I would require one rule for reporting on courts and legislatures it would be: No story will be published without links to the bill, law or decision being reported.

    How hard is that?

    Yet every day posting appear where you must guess to find an opinion or legislative material.

    Links won’t keep you mis-reporting laws and opinions but it will enable your readers to spot such mistakes more easily. (Is that the reason links are so often omitted?)

    If you want to improve your skills at reading opinions, take a look at Kerr’s How to Read a Legal Opinion: A Guide for New Law Students.

    Black’s Law Dictionary is a great help, but don’t use an “original” or out-dated version. The law is stable, but not that stable. There is an iPhone version.

    Bear in mind that Black’s doesn’t record every nuance for every term defined by a statute or used by a court. It is a general guide only.

    Art and the Law: [UK Focused]

    Sunday, June 12th, 2016

    Art and the Law: Guides to the legal framework and its impact on artistic freedom of expression by Jodie Ginsberg, chief executive, Index on Censorship.

    From the post:

    Freedom of expression is essential to the arts. But the laws and practices that protect and nurture free expression are often poorly understood both by practitioners and by those enforcing the law.

    As part of Index on Censorship’s work on art and offence, Index has published a series of law packs intended to address questions about legal limits related to free expression and the arts.

    We intend them as “living” documents, to be enhanced and developed in partnership with arts groups so that artistic freedom is nurtured and nourished.

    This work builds on an earlier study by Index on Censorship, Taking the Offensive, which showed how self-censorship manifests itself in arts organisations and institutions.

    Descriptions of:

    Child Protection: PDF | web

    Counter Terrorism: PDF | web

    Obscene Publications: PDF | web

    Public Order: PDF | web

    Race and Religion: PDF | web

    along with numerous other resources appear on this page.

    Realize these are UK specific and the laws on such matters vary widely. That’s not a criticism but an observation for the safety of readers. Check your local laws with qualified legal advisers.

    Unlike Jonathan “I Want To Be A Twitter Censor” Weisman, my advice for when you find offensive content, is to look away.

    What other people choose to create, publish, perform, listen to, view, read, etc., is their business and certainly none of yours.

    Criminal acts against other people, children in particular, are already unlawful and censorship isn’t required outlaw them.

    Accurate Reporting on the UK Parliament

    Thursday, June 9th, 2016

    When you read: British lawmakers pass new digital surveillance law by Elizabeth Piper and William Schomberg, do you think:

    1. The UK has a new surveillance law?
    2. Debate on a proposed surveillance law has ended in the House of Commons?
    3. A proposed surveillance law is about to be debated in the House of Lords?
    4. Princess Kate’s life will be streamed real-time 24×7 on BBC 4?

    If you said #2 and/or #3, your right!

    Answers #1 and #4 are false.

    I’m completely innocent of any experience with procedure in the UK Parliament but discovering the Reuters headline was false, wasn’t all that hard.

    If you don’t know UK parliamentary procedure, check before reporting:

    For the Investigatory Powers Bill, you could start at: About Parliament to get an overview of the process and some rather imaginative terminology used to describe the process.

    Quick tip: Look for Bills before Parliment if the bill has just been in the news. Easiest place to look for the latest information.

    Scroll down and you will find the Investigatory Powers Bill is now in the House of Lords.

    The Investigatory Powers Bill link takes you to a very well-organized page that summarizes the current bill status (not a law) along with the full text and links to other useful resources.

    The page also offers RSS and email alerts of further action on this bill. You will be accurately informed despite repeated AP reports of its passage.

    If you do report on the Investigatory Powers Bill include its status page. That will assist voters in knowing who is responsible for this travesty, should misfortune prevail and it become law.

    Playpen Defendants 3, FBI 0

    Friday, May 27th, 2016

    Judge tosses evidence in FBI Tor hacking child abuse case by Bill Carmada.

    From the post:

    A US federal judge on Wednesday excluded all evidence in a child pornography case that was acquired by the FBI through an exploit compromising the Tor network. The federal government hasn’t announced what it’ll do next, but if it can’t prevail in an appeal, its case against Vancouver, Washington teacher Jay Michaud may well be doomed.

    Defendant prevails on the grounds of the FBI refusing to disclose its exploit.

    Criminal law 101. The state can’t produce “evidence,” gathered by some unknown means and use it to “prove” the guilt of a defendant.

    Every defendant gets to contest the evidence produced against them. In this case, the FBI has chosen to deny a defendant that right.

    There are two other Playpen decisions to be aware of:

    1) Suppression of Evidence Obtained by FBI’s Use of Network Investigative Techniques (NIT) by Scott Hughes.

    From the post:

    Last month, a United States district court judge threw out evidence in a child abuse imagery case that the Federal Bureau of Investigation (FBI) had obtained using a hacking tool. While the court ruled to suppress the evidence, it did not prohibit the FBI from using the hacking tool—called a “network investigative technique” (NIT)—to install malware code on suspects’ computers. Rather, the court’s ruling stated that the magistrate judge wrongly granted the FBI’s NIT warrant because the case was not within her jurisdiction, thus violating Federal Rule of Evidence 41(b). Still, this ruling marks a possible stumbling block to an FBI probe and the resulting charges against approximately 137 individuals in the United States.

    United States vs. Alex Levin (decision)

    This result will be different if an amended Rule 41 is approved (Congress must act by 1 December 2016).

    The BBC headline: US Supreme Court approves expanded hacking powers was the first one to catch my attention, although it failed to point to the Supreme Court document in question. To cure that shortfall, see this transmittal letter and amendments to the Federal Rules of Criminal Procedure.

    BTW, Scott’s post is an excellent example of how to write a useful blog post on legal issues. Quoting, summarizing, characterizing is all well and good, but many of us are interested in sources and not but the sources.

    2) Second Judge Recommends To Discard Evidence Obtained From FBI Mass Hack

    From the post:

    Paul J Cleary, a Magistrate Judge, is the second judge to suggest that evidence obtained in the FBI mass hack,using malware planted by the federal agency on the infiltrated child porn site PlayPen, be thrown out.

    In the mass hack case, the FBI uploaded the malware in February 2015 as part of Operation Pacifier.

    On the 25th of last month, the same judge recommended for suppression of evidence (obtainedin the FBI mass hack) in a similar case.

    The case involves Scott Fredrick Arterbury.

    United States vs. Scott Frederick Arterbury (decision)

    Another Rule 41 based decision, which would be decided differently under proposed changes to Rule 41 rules on search warrants.


    Although the Rule 41 violation is clear and clean cut, I much prefer the suppression of evidence for failure to disclose its alleged hack of the TOR network. There are many ways to gather the information the FBI claims to possess and proof of how they came to possess it, is a critical link in the chain of evidence.

    I have read differing numbers on the defendants charged out of Playpen, but accepting 137 as the high, there are as many as 134 defendants remaining.

    Suggestions on how to document the remaining cases? I have searched both the FBI and Justice Department for any mention of the Playpen operation. Number of “hits”: 0.

    If you didn’t know better, you would say “the FBI and Justice Department are ashamed of Operation Playpen.” Do you think?

    PS: If you need a general background on this story, see: The FBI’s ‘Unprecedented’ Hacking Campaign Targeted Over a Thousand Computers by Joseph Cox.

    Congress, Maps, A Research Tale – Part 1

    Sunday, May 15th, 2016


    A close friend posted this to Facebook. I pressed them for further details because alone, all this does is raise my blood pressure, it offers no opportunity for meaningful action.

    With their response I was able to locate the offending act: Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015, which given the date, fiscal year 2015, means it likely passed in 2014.

    The timeless nature of most web posts increases the difficult of even minimal searching. If what you are complaining about has a date, please recite it. If it is legislation, provide the date and a pointer.

    Having located the act, if you are reading along you want Section 3003.

    In subsection (b), Definitions, you will find:

    (1) APACHE LEAP.—The term ‘‘Apache Leap’’ means the approximately 807 acres of land depicted on the map entitled ‘‘Southeast Arizona Land Exchange and Conservation Act of 2011–Apache Leap’’ and dated March 2011.

    (2) FEDERAL LAND.—The term ‘‘Federal land’’ means the approximately 2,422 acres of land located in Pinal County, Arizona, depicted on the map entitled ‘‘Southeast Arizona Land Exchange and Conservation Act of 2011–Federal Parcel–Oak Flat’’ and dated March 2011.

    (5) OAK FLAT CAMPGROUND.—The term ‘‘Oak Flat Campground’’ means the approximately 50 acres of land comprising approximately 16 developed campsites depicted on the map entitled ‘‘Southeast Arizona Land Exchange and Conservation Act of 2011–Oak Flat Campground’’ and dated March 2011.

    (6) OAK FLAT WITHDRAWAL AREA.—The term ‘‘Oak Flat Withdrawal Area’’ means the approximately 760 acres of land depicted on the map entitled ‘‘Southeast Arizona Land Exchange and Conservation Act of 2011–Oak Flat Withdrawal Area’’ and dated March 2011.

    OK, I like maps and so went looking for these maps. Searched all of, fourteen hits for the names, but no maps.

    I started to write to the law librarians at the Library of Congress and for due diligence, did a search on the term ” maps ” (note the leading and following spaces). There were twenty-eight (28) “hits” and the eight one reads:

    (b) AVAILABILITY OF MAPS AND LEGAL DESCRIPTIONS.—Maps are entitled ‘‘Trinity County Land Exchange Act of 2014 – Parcel A’’ and ‘‘Trinity County Land Exchange Act of 2014 – Parcel B’’, both dated March 24, 2014. The maps shall be on file and available for public inspection in the Office of the Chief of the Forest Service and the appropriate office of the Bureau of Land Management.

    Ah! So map titles in the bill don’t refer to maps attached to the bill (a sensible assumption), nor do they refer to maps already available elsewhere, of necessity. Maps referenced in legislation may not exist at the time of the reference.

    I would not vote based on a to-be-produced-map but then many in Congress don’t vote as I would. 😉 (Not always a criticism, just an observation.)

    So, the solution to finding the maps lies in

    PUBLIC LAW 113–291, Section 3003, (i) (2) MAPS, Estimates, AND Descriptions (C) Availability:

    (C) AVAILABILITY.—On the date of enactment of this, Act, the Secretary shall file and make available for public inspection in the Office of the Supervisor, Tonto National Forest, each map referred to in this section.

    A quick search at the Tonto National Forest website does not turn up the maps in question.

    Nor does a search for “Oak Flat Withdrawal Area” at the Secretary of Agriculture site:


    At this point I have the following outstanding questions:

    What is the source of these maps, alleged to be dated 2011?

    Bearing in mind the advice in the Moon is a Harsh Mistress, “Always cut cards.”

    I’m fine with maps, so long as it is my map.

    Can these maps be accessed without traveling to the “…Office of the Supervisor, Tonto National Forest….?”

    What maps were available to members of congress voting on this legislation?

    I have feelers out for additional information and will be posting a follow-up later this week.

    Computer Programming for Lawyers:… [Educating a Future Generation of Judges]

    Friday, May 6th, 2016

    Computer Programming for Lawyers: An Introduction by Paul Ohm and Jonathan Frankle.

    From the syllabus:

    This class provides an introduction to computer programming for law students. The programming language taught may vary from year-to-year, but it will likely be a language designed to be both easy to learn and powerful, such as Python or JavaScript. There are no prerequisites, and even students without training in computer science or engineering should be able successfully to complete the class.

    The course is based on the premise that computer programming has become a vital skill for non-technical professionals generally and for future lawyers and policymakers specifically. Lawyers, irrespective of specialty or type of practice, organize, evaluate, and manipulate large sets of text-based data (e.g. cases, statutes, regulations, contracts, etc.) Increasingly, lawyers are asked to deal with quantitative data and complex databases. Very simple programming techniques can expedite and simplify these tasks, yet these programming techniques tend to be poorly understood in legal practice and nearly absent in legal education. In this class, students will gain proficiency in various programming-related skills.

    A secondary goal for the class is to introduce students to computer programming and computer scientific concepts they might encounter in the substantive practice of law. Students might discuss, for example, how programming concepts illuminate and influence current debates in privacy, intellectual property, consumer protection, antidiscrimination, antitrust, and criminal procedure.

    The language for this year is Python. The course website, does not have any problem sets posted, yet. Be sure to check back for those.

    Recommend this to any and all lawyers you encounter. It isn’t possible to predict who will or will not be a judge someday. Judges with a basic understanding of computing could improve the overall quality of decisions on computer technology.

    Like discounting DOJ spun D&D tales about juvenile behavior.

    Elsevier – “…the law is a ass- a idiot.”

    Friday, May 6th, 2016

    Elsevier Complaint Shuts Down SCI-HUB Domain Name by Ernesto.

    From the post:

    However, as part of the injunction Elsevier is able to request domain name registrars to suspend Sci-Hub’s domain names. This happened to the original .org domain earlier, and a few days ago the Chinese registrar appears to have done the same for

    The domain name has stopped resolving and is now listed as “reserved” according to the latest WHOIS info. TorrentFreak reached out to Sci-Hub founder Alexandra Elbakyan, who informed us that the registrar sent her a notice referring to a complaint from Elsevier.

    In addition to the alternative domain names users can access the site directly through the IP-address, or its domain on the Tor-network, which is pretty much immune to any takedown efforts.

    Meanwhile, academic pirates continue to flood to Sci-Hub, domain seizure or not.

    The best response to Elsevier is found in Oliver Twist by Charles Dickens, Chapter 52

    “If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass- a idiot.”

    I do disagree with Ernesto’s characterization of users of Sci-Hub as “academic pirates.”

    Elsevier and others have fitted their business model to a system of laws that exploits the unpaid labor of academics, based on research funded by the public, profiting from sales to libraries and preventing wider access out of spite.

    There is piracy going on in academic publishing but it isn’t on the part of those seeking to access published research.

    Please share access points for Sci-Hub widely and often.

    Speak For Those Who Can’t Speak For Themselves

    Thursday, May 5th, 2016

    It’s no surprise the State of Texas has decided to violate the free speech rights of inmates in its prisons.

    What’s violation of an inmate’s free speech rights when you are out of step with the civilized world on the death penalty?

    Unlike the death penalty, which so far states are not practicing in secret, censorship of prisoner social media accounts is hidden from the public.

    Make the public aware of prison censorship:

    If you are managing a social media account on behalf of an inmate and suddenly find the account has been suspended or content otherwise removed, we urge you to submit a report to The project, a collaboration between EFF and Visualizing Impact, draws on user-generated data to document how social media companies including Facebook, Twitter, Flickr, Google+, Instagram, and YouTube moderate content and the corresponding user experience when that occurs. (Report Inmate Social Media Takedowns to

    Who but the unjust fear cries for justice?

    Defender Services Office

    Friday, April 29th, 2016

    Defender Services Office

    I discovered the Defender Services Office while searching for something beyond the usual complaints about government prosecutions. Complaining is ok, but blunting government efforts requires something more.

    From the about page:

    The Defender Services Office (DSO) of the Administrative Office of the U.S. Courts assists in administering the Defender Services Program under the Criminal Justice Act (CJA), the law governing the provision of federal criminal defense services to those unable to afford representation. The Training Division of DSO provides substantial training and other resource support to Federal Defender Organization (FDO) staff and CJA panel attorneys. The Training Division has seven principal tasks:

    • Providing substantive information on federal criminal law and procedure, publications, training materials and other online resources to CJA panel attorneys and FDO staff through the Training Branch websites, and
    • Designing, implementing and teaching at national and local training programs for CJA panel attorneys and FDO attorneys, paralegals, and investigators.
    • Delivering training programs to FDO attorneys, paralegals and investigators through an interagency agreement with the Federal Judicial Center (FJC) and assisting in the design of those programs.
    • Working with contractors on the planning and implementation of federal death penalty and federal capital habeas corpus training for FDO staff and CJA panel attorneys.
    • Providing guidance and information to members of the CJA panel and FDO staff on CJA cases regarding all aspects of criminal law and procedure through our hotline (800-788-9908).
    • Implementing the Supreme Court Advocacy Program, which arranges moots, performs legal research, provides substantive and strategic advice, or editing and writing drafts of merits briefs, to CJA panel members and FDO attorneys representing CJA-eligible defendants in the United States Supreme Court.
    • Providing advice and consultation on litigation support tools, services and processes to federal courts, federal defender organizations, and CJA panel attorneys.

    There are a number of resource materials, mostly of interest to lawyers and paralegals.


    Cybersecurity Via Litigation

    Friday, April 22nd, 2016

    Ex-Hacker: If You Get Hacked, Sue Somebody by Frank Konkel.

    From the post:

    Jeff Moss, the hacker formerly known as Dark Tangent and founder of Black Hat and DEFCON computer security conferences, has a message for the Beltway tech community: If you get owned, sue somebody.

    Sue the hackers, the botnet operators that affect your business or the company that developed insecure software that let attackers in, Moss said. The days of software companies having built-in legal “liability protections” are about to come to an end, he argued.

    “When the Internet-connected toaster burns down the kitchen, someone is going to get sued,” said Moss, speaking Wednesday at the QTS Information Security and Compliance Forum in Washington, D.C. “The software industry is the only industry with liability protection. Nobody else has liability protection for some weird reason. Do you think that is going to last forever?”

    Some customer and their law firm will be the first ones to tag a major software company for damages.

    Will that be your company/lawyers?

    The only way to dispel the aura invulnerability from around software companies is by repeated assaults by people damaged by their negligence.

    Tort (think liability for civil damages) law has a long and complex history. A history that would not have developed had injured people been content to simply be injured with no compensation.

    On torts in general, see: Elements of Torts in the USA by Robert B. Standler.

    I tried to find an online casebook that had edited versions of some of the more amusing cases from tort history but to no avail.

    You would be very surprised at what conduct has been shielded from legal liability over the years. But times do change and sometimes in favor of the injured party.

    If you want to donate a used tort casebook, I’ll post examples of changing liability as encouragement for suits against software vendors. Stripped of all the legalese, facts of cases can be quite amusing/outraging.