Archive for the ‘Law’ Category

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.

Summary:

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

oak-flat-facebook-450

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 Congress.gov, 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:

usda-oak-flat-search-450

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, http://paulohm.com/classes/cpl16/ 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 Now.cn appears to have done the same for Sci-hub.io.

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 31.184.194.81, 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 OnlineCensorship.org. 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 OnlineCensorship.org)

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, www.fd.org and www.capdefnet.org.
  • 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.

Enjoy!

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.

Indigo is the new Blue

Wednesday, April 20th, 2016

Letter from Carl Malamud to Mr. Michael Zuckerman, Harvard Law Review Association.

You can read Carl’s letter for yourself.

Recommend to law students, law professors, judges, lawyers, people practicing for Jeopardy appearances, etc., The Indigo Book: An Open and Compatible Implementation of A Uniform System of Citation.

In any pleadings, briefs, essays, cite this resource as:

Sprigman et al., The Indigo Book: A Manual of Legal Citation, Public Resource (2016).

Every download of the Indigo Book saves someone $25.89 over a competing work on Amazon, which I won’t name for copyright reasons.

FBI Hacked San Bernardino IPhone – Why Do You Believe That?

Wednesday, March 30th, 2016

The claim of the FBI to have hacked the San Bernardino IPhone without help from Apple has flooded social and mainstream media.

What I haven’t heard in all that clamor is any reason to credit that claim.

This is the same FBI mentioned in:

Report: ‘Nearly Every’ FBI Forensics Expert Gave Flawed Testimony In ‘Almost All Trials’ Over A 20-Year Period

Official confirmation the FBI lied? (Boston Marathon Bombing)

The Judi Bari Website FBI conspiracy (civil court verdict)

FBI Sanctioned for Lying About Existence of Surveillance Records

Admittedly, it isn’t easy to catch the FBI lying, but these few cases illustrate that lying is a way of life at the FBI.

Or as the 9th Circuit is quoted as saying in FBI Sanctioned for Lying About Existence of Surveillance Records:


The Government argues that there are times when the interests of national security require the Government to mislead the Court. The Court strongly disagrees. The Government’s duty of honesty to the Court can never be excused, no matter what the circumstance. The Court is charged with the humbling task of defending the Constitution and ensuring that the Government does not falsely accuse people, needlessly invade their privacy or wrongfully deprive them of their liberty. The Court simply cannot perform this important task if the Government lies to it. Deception perverts justice. Truth always promotes it.

When you are dealing with a party that has a policy of misleading courts to further “national security,” why would you credit any unsubstantiated claim from that source?

More than a policy, a history of lying to both the public and the courts.

Is it sufficient that the FBI declare it’s not lying today? This time? Or did any media representative even ask that question?

Until an independent expert “hacks” an identical iPhone using the FBI’s “method,” the FBI “hack” of the San Bernardino IPhone ranks with photos of presidents with aliens:

Bush_alien1211681503

And for equal time purposes:

obamaxmas

A skeptical public press would not parrot the unsubstantiated claims of known liars, even when those liars are federal agencies.

But then, we don’t have a skeptical public press.

Yes?

Serious Non-Transparency (+ work around)

Tuesday, March 29th, 2016

I mentioned http://www.bkstr.com/ yesterday in my post: Courses -> Texts: A Hidden Relationship, where I lamented the inability to find courses by their titles.

So you could easily discover the required/suggested texts for any given course. Like browsing a physical campus bookstore.

Obscurity is an “information smell” (to build upon Felienne‘s expansion of code smell to spreadsheets).

In this particular case, the “information smell” is skunk class.

I revisited http://www.bkstr.com/ today to extract its > 1200 bookstores for use in crawling a sample of those sites.

For ugly HTML, view the source of: http://www.bkstr.com/.

Parsing that is going to take time and surely there is an easy way to get a sample of the sites for mining.

The idea didn’t occur to me immediately but I noticed yesterday that the general form of web addresses was:

bookstore-prefix.bkstr.com

So, after some flailing about with the HTML from bkstr.com, I searched for “bkstr.com” and requested all the results.

I’m picking a random ten bookstores with law books for further searching.

Not a high priority but I am curious what lies behind the smoke, mirrors, complex HTML and poor interfaces.

Maybe something, maybe nothing. Won’t know unless we look.

PS: Perhaps a better query string:

www.bkstr.com textbooks-and-course-materials

Suggested refinements?

Courses -> Texts: A Hidden Relationship

Monday, March 28th, 2016

Quite by accident I discovered the relationship between courses and their texts is hidden in many (approx. 2000) campus bookstore interfaces.

If you visit a physical campus bookstore you can browse courses for their textbooks. Very useful if you are interested the subject but not taking the course.

An online LLM (master’s of taxation) flyer prompted me to check the textbooks for the course work.

A simple enough information request. Find the campus bookstore and browse by course for text listings.

Not so fast!

The online presences of over 1200 campus bookstores are delivered http://www.bkstr.com/, which offers this interface:

bookstore-campus

Another 748 campus bookstores are delivered by http://bncollege.com/, with a similar interface for textbooks:

harvard-yale

I started this post by saying the relationship between courses and their texts is hidden, but that’s not quite right.

The relationship between a meaningless course number and its required/suggested text is visible, but the identification of a course by a numeric string is hardly meaningful to the casual observer. (read not an enrolled student)

Perhaps better to say that a meaningful identification of courses for non-enrolled students and their relationship to required/suggested texts is absent.

That is the relationship of course -> text is present, but not in a form meaningful to anyone other than a student in that course.

Considering two separate vendors across almost 2,000 bookstores deliberately obscure the course -> text relationship, who has to wonder why?

I don’t have any immediate suggestions but when I encounter systematic obscuring of information across vendors, alarm bells start to go off.

Just for completeness sake, you can get around the obscuring of the course -> text relationship by searching for syllabus LLM taxation income OR estate OR corporate or (school name) syllabus LLM taxation income OR estate OR corporate. Extract required/suggested texts from posted syllabi.

PS: If you can offer advice on bookstore interfaces suggest enabling the browsing of courses by name and linking to the required/suggested texts.


During the searches I made writing this post, I encountered a syllabus on basic tax by Prof. Bret Wells which has this quote by Martin D. Ginsburg:

Basic tax, as everyone knows, is the only genuinely funny subject in law school.

Tax law does have an Alice in Wonderland quality about it, but The Hunting of the Snark: an Agony in Eight Fits is probably the closer match.

Network Measures of the United States Code

Saturday, March 5th, 2016

Network Measures of the United States Code by Alexander Lyte, Dr. David Slater, Shaun Michel.

Abstract:

The U.S. Code represents the codification of the laws of the United States. While it is a well-organized and curated corpus of documents, the legal text remains nearly impenetrable for non-lawyers. In this paper, we treat the U.S. Code as a citation network and explore its complexity using traditional network metrics. We find interesting topical patterns emerge from the citation structure and begin to interpret network metrics in the context of the legal corpus. This approach has potential for determining policy dependency and robustness, as well as modeling of future policies.​

The citation network is quite impressive:

uscode-network

I have inquired about an interactive version of the network but no response as of yet.

EFF On First Amendment, Apple, All Writs Act

Thursday, March 3rd, 2016

Deep Dive: Why Forcing Apple to Write and Sign Code Violates the First Amendment by Andrew Crocker and Jamie Williams.

From the post:

EFF filed an amicus brief today in support of Apple’s fight against a court order compelling the company to create specific software to enable the government to break into an iPhone. The brief is written on behalf of 46 prominent technologists, security researchers, and cryptographers who develop and rely on secure technologies and services that are central to modern life. It explains that the court’s unprecedented order would violate Apple’s First Amendment rights. That’s because the right to free speech prohibits the government from compelling unwilling speakers to speak, and the act of writing and, importantly, signing computer code is a form of protected speech. So by forcing Apple to write and sign an update to undermine the security of its iOS software, the court is also compelling Apple to speak—in violation of the First Amendment. (emphasis in original)

Despite my mentioning A Readers’ Guide to the Apple All Writs Act Cases earlier today, I wanted to call the EFF amicus brief out separately.

Its strong defense of Apple solely on First Amendment grounds merits special mention.

Enabling the government to compel speech, for any reason, should be resisted in courts, in the streets and in refusing to speak.

Or as one of my least favorite people in history once put it:

220px-Voennaia_marka_Ni_shagu_nazad!

(Not one step back)

Yes, it is really that important.

A Readers’ Guide to the Apple All Writs Act Cases

Thursday, March 3rd, 2016

A Readers’ Guide to the Apple All Writs Act Cases

From the post:

The last few weeks and months have been awash in media coverage of two cases before magistrate judges involving the federal government seeking to use the All Writs Act to compel Apple’s cooperation with ongoing criminal investigations. The older case, in the Eastern District of New York, involves a drug case where the phone’s owner has pleaded guilty to the charges against him. The more recent case, in the Central District of California, involves an iPhone used by Syed Farook, one of the alleged San Bernardino shooters. While the two cases involve different different phone models, operating systems, alleged crimes, and legal postures, they touch on similar questions related to the scope of the All Writs Act.

In an attempt to create a one-stop shop for our coverage and the related documents and some useful sources, we’ve compiled this readers’ guide. We will update it as the cases progress to include the latest filings and posts, so check back for more as things unfold.

Just Security has started a “one-stop shop” for its coverage and official documents in the Apple All Writs Act cases.

Considering how seldom news sources point to rulings, briefs, etc., this will get a lot of hits in the coming months.

It does not include coverage from other professional sources, such as LawFare – Hard National Security Choices. Two items by Robert Chesney from LawFare that you may find of interest:

A Primer on Apple’s Brief in the San Bernadino iPhone Fight

Apple v. FBI Primer #2: On Judge Orenstein’s Ruling in the Queens Meth Case

If anyone has collected the professional legal commentary sites posting on the Apple All Writs Act cases, I would appreciate a pointer.

Advice on Reading Academic Papers [Comments on Reading Case Law/Statutes]

Tuesday, March 1st, 2016

Advice on Reading Academic Papers by Aaron Massey.

From the post:

Graduate students must learn to read academic papers, but in virtually all cases, these same students are not formally taught how to best read academic papers. It is not the same process used to read a newspaper, magazine, or novel. The process of learning how to read academic papers properly can not only be painful, but also waste quite a bit of time. Here are my quick tips on reading papers of all stripes:

Less detailed than How to read and understand a scientific paper…., which includes a worked example, and not as oriented to CS as Now to Read a Paper.

In addition to four other guides, Aaron includes this link which returns (as of today), some 384,000,000 “hits” on the search string: “how to read a scientific paper.”

There appears to be no shortage of advice on “how to read a scientific paper.” 😉

Just for grins, a popular search engine returns these results:

“how to read case law” returns 2,070 “hits,” which dwindles down to 80 when similar materials are removed.

Isn’t that interesting? Case law, which in many cases determines who pays, who goes to jail, who wins, has such poor coverage in reading helps?

“how to read statutes” returns 2,500 “hits,” which dwindles down to 97 when similar materials are omitted.

Beyond the barriers of legal “jargon,” be aware that even ordinary words may not have expected meanings in both case law and statutes.

For best and safest results, always consult licensed legal counsel.

That perpetuates the legal guild but its protective mechanisms are harsh and pitiless. Consider yourself forewarned.

Law Library Blogs

Friday, February 19th, 2016

Law Library Blogs by Aaron Kirschenfeld.

A useful collection of fifty-four (54) institutional law library blogs on Feedly.

Law library blogs being one of the online resources you should be following if you are interested in legal informatics.

Bluebook® vs. Baby Blue’s (Or, Bleak House “Lite”)

Friday, February 19th, 2016

The suspense over what objections The Bluebook® A Uniform System of Citation® could have to the publication of Baby Blue’s Manual of Legal Citation, ended with a whimper and not a bang on the publication of Baby Blue’s.

You may recall I have written in favor of Baby Blue’s, sight unseen, Bloggers! Help Defend The Public Domain – Prepare To Host/Repost “Baby Blue”, and, Oxford Legal Citations Free, What About BlueBook?.

Of course, then Baby Blue’s Manual of Legal Citation was published.

I firmly remain of the opinion that legal citations are in the public domain. Moreover, the use of legal citations is the goal of any citation originator so assertion of copyright on the same would be self-defeating, if not insane.

Having said that, Baby Blue’s Manual of Legal Citation is more of a Bleak House “Lite” than a useful re-imagining of legal citation in a modern context.

I don’t expect you to take my word for that judgment so I have prepared mappings from Bluebook® to Baby Blue’s and Baby Blue’s to Bluebook®.

Caveat 1: Baby Blue’s is still subject to revision and may tinker with its table numbering to further demonstrate its “originality” for example, so consider these mappings as provisional and subject to change.

Caveat 2: The mappings are pointers to equivalent subject matter and not strictly equivalent content.

How closely the content of these two publications track each other is best resolved by automated comparison of the two.

As general assistance, pages 68-191 (out of 198) of Baby Blue’s are in substantial accordance with pages 233-305 and 491-523 of the Bluebook®. Foreign citations, covered by pages 307-490 in the Bluebook®, merit a scant two pages, 192-193, in Baby Blue’s.

The substantive content of Baby Blue’s doesn’t begin until page 10 and continues to page 67, with tables beginning on page 68. In terms of non-table content, there is only 57 pages of material for comparison to the Bluebook®. As you can see from the mappings, the ordering of rules has been altered from the Bluebook®, no doubt as a showing of “originality.”

The public does need greater access to primary legal resources but treating the ability to cite Tucker and Celphane (District of Columbia, 1892-1893) [Baby Blue’s page 89] on a par with Federal Reporter [Baby Blue’s page 67], is not a step in that direction.

PS: To explore the issues and possibilities at hand, you will need a copy of the The Bluebook® A Uniform System of Citation®.

Some starter questions:

  1. What assumptions underlie the rules reported in the Bluebook®?
  2. How would you measure the impact of changing the rules it reports?
  3. What technologies drove the its form and organization?
  4. What modern technologies could alter its form and organization?
  5. How can modern technologies display content differently that used its citations?

A more specific question could be: Do we need 123 pages of abbreviations (Babyblue), 113 pages of abbreviations (Bluebook®) when software has the capability to display expanded abbreviations to any user? Even if written originally as an abbreviation.

Abbreviations being both a means of restricting access/understanding and partially a limitation of the printed page into which we sought to squeeze as much information as possible.

Should anyone raise the issue of “governance,” with you in regard to the Bluebook®, they are asking for a seat at the citation rule table for themselves, not you. My preference is to turn the table over in favor of modern mechanisms for citations that result in access, not promises of access if you learn a secret code.

PS: I use Bleak House as a pejorative above but it is one of my favorite novels. Bear in mind that I also enjoy reading the Bluebook and the Chicago Manual of Style. 😉

Legislative Data Demo Day [24 February 2016]

Thursday, February 11th, 2016

Legislative Data Demo Day Hosted by Rep. Seth Moulton and Rep. David Brat.

From the post:

February 24, 2016, Washington, D.C. 4:00pm – 5:00pm, location TBD

Congress is poised to transform its legislative information from outdated documents into open, searchable data. If the House and Senate adopted a consistent data format for all bills, amendments, passed laws, and legal compilations, then new software could bring better transparency and more efficient lawmaking. The bipartisan Statutes at Large Modernization Act, introduced by Reps. Brat and Moulton, takes a giant step toward a data-driven future by setting up a structured data format for the Statutes at Large. Together with similar reforms for other legislative materials, the Statutes at Large Modernization Act will enable automatic redlining between bills and the laws they amend; electronic crosswalks from appropriations to the final disbursement of taxpayer funds; and cheaper, easier legal research.

At the Legislative Data Demo Day, Reps. Moulton and Brat will preview demonstrations of the technologies that can modernize laws and lawmaking – if Congress embraces the transformation from documents into data.

Heads up for what could be a very good event!

The event is free but it looks like physical attendance is required.

Baby Blue’s Manual of Legal Citation [Public Review Ends 15 March 2016]

Tuesday, February 9th, 2016

The Baby Blue’s Manual of Legal Citation, is available for your review and comments:

The manuscript currently resides at https://law.resource.org/pub/us/code/blue/. The manuscript is created from an HTML source file. Transformations of this source file are available in PDF and Word formats. You may submit point edits by editing the html source (from which we will create a diff) or using Word with Baby Blue’s Manual of Legal Citation track changes enabled. You may also provide comments on the PDF or Word documents, or as free-form text. Comments may be submitted before March 15, 2016 to:

Carl Malamud
Public.Resource.Org, Inc.
1005 Gravenstein Highway North
Sebastopol, CA 95472 USA
carl@media.org

Comment early and often!

More to follow.

Collecting Case Data (law)

Tuesday, January 26th, 2016

If you do any amount of legal research, a form for briefing cases can save you from forgetting the citation to a case with the perfect quote.

Everyone has a different style for case briefs but Mr. K– (@kirschsubjudice), has created one at Google Forms, called imaginatively enough: Case Brief.

It will seem like a lot of work at first but reviewing your case briefs will save lots of time over re-reading photocopies of decisions and/or pulling all the volumes, again, when fact checking your story.

Can You Help With Important But Non-Visual Story? – The Blue People

Thursday, January 14th, 2016

Accelerate Your Newsgathering and Verification reported a post that had 3 out of 5 newsgathering tools for images. But as I mention, there are important but non-visual stories that need improved tools for newsgathering and verification.

The copyright struggle between the Blue People and Carl Malamud is an important, but thus far, non-visual story.

Here’s the story in a nutshell:

Laws, court decisions, agency rulings, etc., that govern our daily lives, are found in complex document stores. They have complex citation systems to enable anyone to find a particular law, decision, or rule.

Those systems are the Dewey Decimal system or the Library of Congress classification, except several orders of magnitude more complex. And the systems vary from state to state, etc.

It’s important to get citations right, well, let’s let the BlueBook speak for itself:

The primary purpose of a citation is to facilitate finding and identifying the authority cited…. (A Uniform System of Citation, Tenth Edition, page iv.)

If you are going to quote a law or have access to it, you must have the correct citation.

In order to compel people to obey the law, they must have fair notice of it. And it stands to reason if you can’t find the law, no access to a citation guide, you are SOL as far as access to the law.

The courts come into the picture, being as lazy if not lazier than programmers, by referring to the “BlueBook” as the standard for citations. Courts could have written out their citation practices but as I said, courts are lazy.

Over time, the court’s enshrined their references to the “BlueBook” in court rules, which grants the “BlueBook” an informal monopoly on legal citations and access to the law.

As you have guessed by now, the Blue People, with their government created, unregulated monopoly, charge for the privilege of knowing how to find the law.

The Blue People are quite fond of their monopoly and are loathe to relinquish it. Even though a compilation of how statutes, regulations and courts decisions are cited in fact, is “sweat of the brow” work and not eligible for copyright protection.

A Possible Solution, Based on Capturing Public Facts

The answer to claims of copyright by the Blue People is to collect evidence of the citation practices in all fifty states and federal practice and publish such evidence along with advisory comments on usage.

Fifty law student/librarians could accomplish the task in parallel using modern search technologies and legal databases. Their findings would need to be collated but once done, every state plus federal practice, including nuances, would be easily accessible to anyone.

The courts, as practitioners of precedent,* will continue to support their self-created BlueBook monopoly.

But most judges will have difficulty distinguishing Holder, Attorney General, et al. v. Humanitarian Law Project et al. 561 U. S. 1 (2010) (following the BlueBook) and Holder, Attorney General, et al. v. Humanitarian Law Project et al. 561 U. S. 1 (2010) (following the U.S. Supreme Court and/or some recording of how cases are cited by the US Supreme Court).

If you are in the legal profession or aspire to be, don’t forget Jonathan Swift’s observation in Gulliver’s Travels:

It is a maxim among these lawyers that whatever has been done before, may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice, and the general reason of mankind. These, under the name of precedents, they produce as authorities to justify the most iniquitous opinions; and the judges never fail of directing accordingly.

The inability of courts to distinguish between “BlueBook” and “non-BlueBook” citations will over time render their observance of precedent a nullity.

Not as satisfying as riding them and the Blue People down with war horns blowing but just as effective.

The Need For Visuals

If you have read this far, you obviously don’t need visuals to keep your interest in a story. Particularly a story about access to law and similarly exciting topics. It is an important topic, just not one that really gets your blood pumping.

How would you create visuals to promote public access the laws that govern our day-to-day lives?

I’m no artist but one thought would be to show people trying to consult law books that are chained shut by their citations. Or perhaps one or two of the identifiable Blue People as Jacob Marley type figures with bound law books and heavy chains about them?

The “…could have shared…might have shared…” lines would work well with access to legal materials.

Ping me with suggested images. Thanks!

Law as Pay-to-Play – ASTM International vs. Public.Resource.org, Inc.

Tuesday, January 12th, 2016

Carl Malamud has been hitting Twitter hard today as he posts links to new materials in ASTM International vs. Public.Resource.org, Inc. (case docket).

The crux of the case is whether a legal authority, like the United States, can pass a law that requires citizens to buy materials from private organizations, in order to know what the law says.

That is a law will cite a standard, say by ASTM, and you are bound by the terms of that law, which aren’t clear unless you have a copy of a standard from ASTM. ASTM will be more than happy to sell you a copy.

It’s interesting that ASTM, which has reasonable membership fees of $75 a year, would be the lead plaintiff in this case.

There are technical committees associated with ANSI that have membership fees of $1,200 or more per year. And that is the lowest membership category.

I deeply enjoyed Carl’s tweet that described the ANSI amicus brief as “the sky is falling.”

No doubt from ANSI’s perspective, if Public.Resource.org, Inc. prevails, which it should under any sensible notice of the law reasoning, the sky will be falling.

ANSI and its kin profit by creating a closed club of well-heeled vendors who can pay for early access and participate in development of standards.

You have heard the term “white privilege?” In the briefs for ASTM and its friends, you will realize how deeply entrenched “corporate privilege” is in the United States. The ANSI brief is basically “this is how we do it and it works for us, go away.” No sense of other at all.

There is a running implication that standards organizations (SDOs) have to sell copies of standards to support standards activity. At least on a quick skim, I haven’t seen any documentation on that point. In fact, the W3C, which makes a large number of standards, seems to do ok giving standards away for free.

I can’t help but wonder how the presiding judge will react should a data leak from one of the plaintiffs prove that the “sale of standards” is entirely specious from a financial perspective. That is membership, the “pay-to-play,” is really the deciding factor.

That doesn’t strengthen or weaken the public notice of the law but I do think it is a good indication of the character of the plaintiffs and the lengths they are willing to go to preserve corporate privilege.

In case you are still guessing, I’m on the side of Public.Resource.org.

Oxford Legal Citations Free, What About BlueBook?

Saturday, January 2nd, 2016

Oxford University Standard for Citation of Legal Authorities (OSCOLA)

From the webpage:

The Oxford University Standard for Citation of Legal Authorities is designed to facilitate accurate citation of authorities, legislation, and other legal materials. It is widely used in law schools and by journal and book publishers in the UK and beyond. OSCOLA is edited by the Oxford Law Faculty, in consultation with the OSCOLA Editorial Advisory Board*. OSCOLA was shortlisted for the Halsbury Legal Awards, 2013 Award for Academic Contribution.

OSCOLA (4th edn, Hart Publishers) is available for free in PDF and the webpage lists supplemental materials, such as OSCOLA styles for popular software packages.

I saw this in a tweet by Carl Malamud who asks:

A sense of public purpose. What happened to Harvard?

As of today, Sales Rank Express (Aaron Shepard) reports that:

The Bluebook: A Uniform System of Citation has a sales rank of 9147.

Grapes of Wrath, Amazon sales rank of 2437.

Snow Crash comes in at 3047.

The Firm, by John Grisham is now ranked at 18619.

Projecting from Amazon sales ranking is uncertain but I suspect The Bluebook is making less money than Grapes of Wrath and Snow Crash but more money than The Firm by John Grisham.

The answer to what happened to Harvard is money.

Maybe Corporations Aren’t Sovereign States After All

Monday, December 21st, 2015

Revealed: how Google enlisted members of US Congress it bankrolled to fight $6bn EU antitrust case by Harry Davies.

From the post:

Google enlisted members of the US congress, whose election campaigns it had funded, to pressure the European Union to drop a €6bn antitrust case which threatens to decimate the US tech firm’s business in Europe.

The coordinated effort by senators and members of the House of Representatives, as well as by a congressional committee, formed part of a sophisticated, multimillion-pound lobbying drive in Brussels, which Google has significantly ramped up as it fends off challenges to its dominance in Europe.

An investigation by the Guardian into Google’s multifaceted lobbying campaign in Europe has uncovered fresh details of its activities and methods. Based on documents obtained under a freedom of information request and a series of interviews with EU officials, MEPs and Brussels lobbyists, the investigation has also found:

If you appreciate a tale of how a major corporation attempts to bully a sovereign government by buying up the support of another sovereign government, then this post by Harry Davies will be a great joy.

For the most part I’m not sympathetic to the EU’s complaints because it is attempting to create safe harbors for EU search companies to replicate what Google already offers. Why would anyone want more page-rank search engines is unknown. Been there, done that.

The EU could fund innovative research into the next-generation search technology and draw customers away from Google with better search results and the ad cash that goes with them.

Instead, the EU wants to hold Google back while inefficient and higher priced competitors bilk EU consumers. That hardly seems like a winning model for technological development.

Seat warmers in the EU will prattle on about privacy and other EU fictions in the actions against Goole.

Anyone who thinks removing search results from Google and only Google increases privacy is on par with Americans who fear terrorism. It’s some, as of yet to be diagnosed, mental disorder.

How people that ignorant reliably travel back and forth to work everyday is a tribute modern transportation systems.

Google should start doing rolling one-week Google blackouts across the EU. Paying penalties under SAAs and/or with lost revenue would be a small price to pay for rationality on the part of the EU.

The best defense against a monopoly is a better product than the monopoly, not the same product at a higher price from smaller EU vendors.

PS: You might want to notice the EU is trying to favor EU search vendors, not EU citizens, whatever they may claim to the contrary. Another commonality between governments.

Cybersecurity Act of 2015 – Text

Friday, December 18th, 2015

Coverage of the “omnibus” bill and the Cybersecurity Act of 2015 has been everywhere on the Web but nary a pointer to the text passed by Congress.

Wouldn’t you rather read the text for yourself than have it summarized?

At this point, the only text I can point you to is in the Congressional Record for December 17, 2015.

The Cybersecurity Act of 2015 is in subsection N, which begins on page H9631, last column on your right and continues to the top of the last column to your right on page H9645.

Please ask media outlets, bloggers and others to include pointers to court decisions, legislation, etc. with their stories.

It’s a small thing but a big step towards an interconnected web of information, as opposed to the current disconnected web.

US Court Opinion Links!

Thursday, December 17th, 2015

I was reading an account the opinion in Authors Guild vs. Google this morning, but the link pointed to a pay wall site. Sigh, court opinions are in the public domain so why not point to a public copy?

Let me make that easier for members of the media, at least for the Supreme Court and the Circuit Courts of Appeal:

You can get a more complete list, includes District and Bankruptcy courts, from Court Website Links.

The only value-add that I offer is a direct link to finding opinions.

One-click on “opinions” plus search gives you a public link to the public opinion.

Is that too much to ask?

PS: Websites of the Circuit Courts vary widely. District judges consider themselves just short of demi-gods so you can imagine the conversations with Circuit Courts judges on web options. Not quite fire by night and clouds by day but almost.

The Pentagon’s plan to outsource lethal cyber-weapons

Friday, November 13th, 2015

The Pentagon’s plan to outsource lethal cyber-weapons by Violet Blue.

From the post:

The Pentagon has quietly put out a call for vendors to bid on a contract to develop, execute and manage its new cyber weaponry and defense program. The scope of this nearly half-billion-dollar “help wanted” work order includes counterhacking, as well as developing and deploying lethal cyberattacks — sanctioned hacking expected to cause real-life destruction and loss of human life.

In June 2016, work begins under the Cyberspace Operations Support Services contract (pdf) under CYBERCOM (United States Cyber Command). The $460 million project recently came to light and details the Pentagon’s plan to hand over its IT defense and the planning, development, execution, management, integration with the NSA, and various support functions of the U.S. military’s cyberattacks to one vendor.

Violet’s post will bring you up to date on discussions of cyber-weapons and where a large number of questions remain, such as what law governs cyber-weapons.

It isn’t clear how worried anyone should be at this point because the Pentagon is following its traditional acquisition process for cyber-weapons. Had the Pentagon started hiring top name exploit merchants and hackers, the danger of cyber-weapons would be imminent.

Traditional contracting process? We may have quantum computing long before cyber-weapons from the traditional process post a threat to then outdated software.

But in all events, do read and pass Violet’s post along.

Trans-Pacific Partnership (full text)

Thursday, November 5th, 2015

Trans-Pacific Partnership (full text)

The Trans-Pacific Partnership text has been released!

Several of the sites I have tried were down due to traffic but this medium.com site appears to be holding up.

Be forewarned that this is a bizarre presentation of the text with promotional logos, etc.

A wave of commentary is sure to follow and within a few days I will collect up the best that is relevant to software/IP and post about it.

Just for grins, check your reading time against the suggested reading times by Medium. It rates the Intellectual Property chapter (18) at 106 minutes.

Hmmm, it might be possible to read it in 106 minutes but fully understanding what you have read is likely to take longer.

Enjoy!

Locating a Compiled Federal Legislative History: A Beginner’s Guide

Tuesday, November 3rd, 2015

Locating a Compiled Federal Legislative History: A Beginner’s Guide by Robert Brammer.

From the post:

Compiling a federal legislative history may seem daunting, but it does not have to be. We hope, through our last few Beginner’s Guides, that we have made this process easier for researchers. There is another, possibly less complicated, option for finding legislative history documents that we wanted to be sure to highlight — determining whether someone has already done the work for you and created a legislative history report! There are many sources of pre-compiled legislative histories available that you will want to check before compiling your own. These compilations range from finding aids that help you locate a compiled legislative history to monographs that contain the legislative history for one act.

If you want less friction when researching federal legislative history, Robert has a number of suggestions to help with just that task.

On the other hand, if you want to have a sense of frustration, despair and ultimately joy at persevering, then compile a legislative history on your own. 😉

Seriously, government documents, to say nothing of legislative history, is a world unto itself. There are librarians who don’t do anything but government documents. They are a god-send if you do have to use a depository library.

Of course, legislative histories are for those who take the surface of legislation at face value. For all of the surface action, there are deeper currents of benefit and personalities that are being played out in the legislative dance.

By and large, official legislative histories don’t give you that view.

Harvard Law Library Readies Trove of Decisions for Digital Age

Thursday, October 29th, 2015

Harvard Law Library Readies Trove of Decisions for Digital Age by Erik Eckholm.

From the post:

Shelves of law books are an august symbol of legal practice, and no place, save the Library of Congress, can match the collection at Harvard’s Law School Library. Its trove includes nearly every state, federal, territorial and tribal judicial decision since colonial times — a priceless potential resource for everyone from legal scholars to defense lawyers trying to challenge a criminal conviction.

Now, in a digital-age sacrifice intended to serve grand intentions, the Harvard librarians are slicing off the spines of all but the rarest volumes and feeding some 40 million pages through a high-speed scanner. They are taking this once unthinkable step to create a complete, searchable database of American case law that will be offered free on the Internet, allowing instant retrieval of vital records that usually must be paid for.

“Improving access to justice is a priority,” said Martha Minow, dean of Harvard Law School, explaining why Harvard has embarked on the project. “We feel an obligation and an opportunity here to open up our resources to the public.”

While Harvard’s “Free the Law” project cannot put the lone defense lawyer or citizen on an equal footing with a deep-pocketed law firm, legal experts say, it can at least guarantee a floor of essential information. The project will also offer some sophisticated techniques for visualizing relations among cases and searching for themes.

Complete state results will become publicly available this fall for California and New York, and the entire library will be online in 2017, said Daniel Lewis, chief executive and co-founder of Ravel Law, a commercial start-up in California that has teamed up with Harvard Law for the project. The cases will be available at www.ravellaw.com. Ravel is paying millions of dollars to support the scanning. The cases will be accessible in a searchable format and, along with the texts, they will be presented with visual maps developed by the company, which graphically show the evolution through cases of a judicial concept and how each key decision is cited in others.

A very challenging dataset for capturing and mapping semantics!

If you think current legal language is confusing, strap on a couple of centuries of decisions plus legislation as the meaning of words and concepts morph.

Some people will search it as flatly as they do Google Ngrams and that will be reflected in the quality of their results.

Yet another dataset where sharing search trails with commentary would enrich the data with every visit. Less experienced searchers could follow the trails of more accomplished searchers.

Whether capturing and annotating search trails and other non-WestLaw/LexisNexis features will make it into user facing interfaces remains to be seen.

There is some truth to the Westlaw claim that “Core primary law is only the beginning…” but the more court data becomes available, the greater the chance for innovative tools.