6 ms·

The Republic of Georgia claims that the legal code establishing the rights and obligations of its citizens (including annotations commissioned and approved by t

by cs702 8y ago

The Republic of Georgia claims that the legal code establishing the rights and obligations of its citizens (including annotations commissioned and approved by the state) should not be freely available to its citizens or anyone else, because it is copyrighted by the state. According to the article, 20 other states around the world are making similar copyright claims. The written laws of a state (along with annotations commissioned by the state) are, in effect, the source code for running the state. Citizens must behave as specified by this code. Otherwise they are fined, incarcerated, or worse. Shouldn't the code that controls people's lives be free, open-source?

gumby 8y ago
> The Republic of Georgia claims that the legal code establishing the rights and obligations of its citizens...should not be freely available to its citizens The federal government of the United States claims this as well, for example see Gilmore v. Gonzales. You are subject to classified laws and regulation to which you do not have access.
- vonmoltke 8y ago
  > The federal government of the United States claims this as well, for example see Gilmore v. Gonzales. That's not entirely correct: http://volokh.com/posts/1134369043.shtml http://volokh.com/posts/1134369043.shtml > Now, just to be clear, I have no idea whether the TSA's decision not to publish the text of its regulations is a smart one. I can understand why they don't publish the names on the No-Fly list, but it's not obvious to me why they can't publish the regulation or rule (or the relevant part) requiring an ID. Maybe this is a misguided law, or an appropriate law being implemented in a misguided way. I don't know; as I said, this isn't my area of expertise. Further, I think reasonable people can disagree on whether TSA's practices are a big deal. Some will find them deeply troublesome, and others won't. > At the same time, I think it's important to recognize that this dispute appears to be significantly narrower than Kevin's post suggests. First, Congress isn't passing any secret laws; the undisclosed authority is a regulation, not a statute, and the TSA's requirement is widely known. Second, no one is being arrested; as I understand it, the issue is only who can be let on an airplane. > Finally, the court isn't being called on to interpret a law it has never seen. DOJ filed a motion attempting file a version of its brief under seal. According to the government's claim at oral argument, the version of the brief filed under seal would have included the text of any regulations TSA follows. The Ninth Circuit rejected the motion without comment, however, and if one judge's comment at oral argument is any sign, it may be because the actual text of the regulation isn't essential to the case. As best I can tell, then, DOJ hasn't filed the undisclosed regulations with the Court because the Court rejected its motion to do so under seal, and the alternative, filing it in open court, would have defeated the purpose of having the text of the regulations unpublished.
  - gumby 8y ago
    Eugene Volokh is a lawyer and I am not, but I feel he is hairsplitting here. Regulations written to implement acts of congress are considered "regulatory law" and can be litigated in criminal, not civil court; you can be arrested for violating them etc. They swim, fly and quack like a duck.
    - torstenvl 8y ago
      > Regulations written to implement acts of congress are considered "regulatory law"... Correct. > ...and can be litigated in criminal . . . court... Overreaching. This rarely happens. > ...litigated in . . . not civil court... They certainly can be litigated in civil court. They almost always are. > ...you can be arrested for violating them... Extreme overstatement. This is almost never the case.
- falcrist 8y ago
  I knew there were secret courts (which are already pretty horrifying in themselves), but the idea that there are secret laws is deeply repugnant to my sense of fairness. How can a system of laws be just when the people ruled by it aren't allowed to know all of it? It seems to me that the idea of secret laws is incompatible with the very foundation of liberal democracy.
Tor3 8y ago
One should think that this would enable anyone accused of a crime to argue "Your Honour, I could not know that my act was illegal as the law in question is unaccessible to me."
- OscarCunningham 8y ago
  Ignorance of the law is, famously, not a legal defence.
  - will_brown 8y ago
    And fair notice of the law is, famously, an exception to the ignorance of the law rule and is a lawful defense.
    - marcoperaza 8y ago
      This doesn’t do the work you might think it does. To properly know the contents of the law, to the high standard you’re demanding, you would have to read every court case any bit related to the prohibition in question. The annotations merely include a non-binding, incomplete summary of that case law. Fair notice is pretty narrow. I am pretty sure (could be wrong), that there is no requirement to codify even. If a state wanted, it could leave its laws uncodified and require you to go through every page of legislative records to discover what the law is. What it can’t do is pass literally secret laws and then hold them against you. There are states that still have common law crimes inherited from before the revolution. These are crimes that the state legislature has never defined, but are recognized by judicial custom (though it is widely agreed that even the courts in those states could not define new crimes in this way)
- golem14 8y ago
  https://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat https://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat
  - Tor3 8y ago
howard941 8y ago
Agreed, but anticipate a counterargument that the laws are available for you to study at local libraries and county courthouses. (copyedited)
stupidcar 8y ago
The text of the laws themselves are open-source. It's the annotations that are the issue and this is, at least, an area where there is a reasonable ambiguity. Hopefully one that will be resolved in favour of greatest openness, but the state's position is at least not totally unreasonable. What is unreasonable, and why this is getting attention on HN is because Malamud's actions in publish the annotations has been described as "terrorism". Perhaps this is just one boneheaded lawyer speaking carelessly, but maybe it's a deliberate attempt to conflate political activism, which may often involve breaking the law or defying authority in a harmless way in pursuit of a political goal, with terrorism, which involves breaking the law in a violent or dangerous way for the same ends. It's important that such a distinction is kept, and the state cannot depict any and all political motivated misbehaviour as "terrorism"
- kevin_b_er 8y ago
  Unofficial versions of the law are available, somewhat. The only official version of the law is the annotated one. Thus the only official law is deemed secret without payment by the state. Thus you cannot know the true law in Georgia without paying. Not to mention the official annotations are considered authoritative. Lawyer and judges reference them, making them part of the law.
  - rayiner 8y ago
    Lawyers and judges reference a huge variety of materials in their opinions. That doesn’t make all those reference materials “part of the law.” These annotations do not appear to be essential to understanding the law. They appear to be explanatory aids.
    - moefh 8y ago
      > These annotations do not appear to be essential to understanding the law At least 3 judges disagree with this (quoted from the article): > “The annotations clearly have authoritative weight in explicating and establishing the meaning and effect of Georgia’s laws,” Judge Stanley Marcus wrote for a unanimous three-judge panel of the court
deleted 8y ago
[deleted]
SeanLuke 8y ago
> The Republic of Georgia What is this?
- forgottenpass 8y ago
  A name for the state of Georgia. Most U.S. states have a few names, some unofficial names- like "Rhode Island" - are very popular (the name of that state is actually "State of Rhode Island and Providence Plantations"). The inclusion of "republic" means it's probably a hangover rooted in colonial, revolutionary, and/or confederate time periods.
  - SeanLuke 8y ago
    > A name for the state of Georgia Where is "The Republic of Georgia" documented as a common name for Georgia? "The Republic of Georgia" was the name of the country Georgia prior to the breakup of the USSR.
- anoncake 8y ago
  I understood it to mean the independent country rather than the US state. Apparently the opposite was meant.

by cs702 8y ago

gumby 8y ago

> The Republic of Georgia claims that the legal code establishing the rights and obligations of its citizens...should not be freely available to its citizens The federal government of the United States claims this as well, for example see Gilmore v. Gonzales. You are subject to classified laws and regulation to which you do not have access.

vonmoltke 8y ago
> The federal government of the United States claims this as well, for example see Gilmore v. Gonzales. That's not entirely correct: http://volokh.com/posts/1134369043.shtml http://volokh.com/posts/1134369043.shtml > Now, just to be clear, I have no idea whether the TSA's decision not to publish the text of its regulations is a smart one. I can understand why they don't publish the names on the No-Fly list, but it's not obvious to me why they can't publish the regulation or rule (or the relevant part) requiring an ID. Maybe this is a misguided law, or an appropriate law being implemented in a misguided way. I don't know; as I said, this isn't my area of expertise. Further, I think reasonable people can disagree on whether TSA's practices are a big deal. Some will find them deeply troublesome, and others won't. > At the same time, I think it's important to recognize that this dispute appears to be significantly narrower than Kevin's post suggests. First, Congress isn't passing any secret laws; the undisclosed authority is a regulation, not a statute, and the TSA's requirement is widely known. Second, no one is being arrested; as I understand it, the issue is only who can be let on an airplane. > Finally, the court isn't being called on to interpret a law it has never seen. DOJ filed a motion attempting file a version of its brief under seal. According to the government's claim at oral argument, the version of the brief filed under seal would have included the text of any regulations TSA follows. The Ninth Circuit rejected the motion without comment, however, and if one judge's comment at oral argument is any sign, it may be because the actual text of the regulation isn't essential to the case. As best I can tell, then, DOJ hasn't filed the undisclosed regulations with the Court because the Court rejected its motion to do so under seal, and the alternative, filing it in open court, would have defeated the purpose of having the text of the regulations unpublished.
- gumby 8y ago
  Eugene Volokh is a lawyer and I am not, but I feel he is hairsplitting here. Regulations written to implement acts of congress are considered "regulatory law" and can be litigated in criminal, not civil court; you can be arrested for violating them etc. They swim, fly and quack like a duck.
  - torstenvl 8y ago
    > Regulations written to implement acts of congress are considered "regulatory law"... Correct. > ...and can be litigated in criminal . . . court... Overreaching. This rarely happens. > ...litigated in . . . not civil court... They certainly can be litigated in civil court. They almost always are. > ...you can be arrested for violating them... Extreme overstatement. This is almost never the case.
falcrist 8y ago
I knew there were secret courts (which are already pretty horrifying in themselves), but the idea that there are secret laws is deeply repugnant to my sense of fairness. How can a system of laws be just when the people ruled by it aren't allowed to know all of it? It seems to me that the idea of secret laws is incompatible with the very foundation of liberal democracy.

Tor3 8y ago

One should think that this would enable anyone accused of a crime to argue "Your Honour, I could not know that my act was illegal as the law in question is unaccessible to me."

OscarCunningham 8y ago
Ignorance of the law is, famously, not a legal defence.
- will_brown 8y ago
  And fair notice of the law is, famously, an exception to the ignorance of the law rule and is a lawful defense.
  - marcoperaza 8y ago
    This doesn’t do the work you might think it does. To properly know the contents of the law, to the high standard you’re demanding, you would have to read every court case any bit related to the prohibition in question. The annotations merely include a non-binding, incomplete summary of that case law. Fair notice is pretty narrow. I am pretty sure (could be wrong), that there is no requirement to codify even. If a state wanted, it could leave its laws uncodified and require you to go through every page of legislative records to discover what the law is. What it can’t do is pass literally secret laws and then hold them against you. There are states that still have common law crimes inherited from before the revolution. These are crimes that the state legislature has never defined, but are recognized by judicial custom (though it is widely agreed that even the courts in those states could not define new crimes in this way)
golem14 8y ago
https://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat https://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat
- Tor3 8y ago

howard941 8y ago

Agreed, but anticipate a counterargument that the laws are available for you to study at local libraries and county courthouses. (copyedited)

stupidcar 8y ago

The text of the laws themselves are open-source. It's the annotations that are the issue and this is, at least, an area where there is a reasonable ambiguity. Hopefully one that will be resolved in favour of greatest openness, but the state's position is at least not totally unreasonable. What is unreasonable, and why this is getting attention on HN is because Malamud's actions in publish the annotations has been described as "terrorism". Perhaps this is just one boneheaded lawyer speaking carelessly, but maybe it's a deliberate attempt to conflate political activism, which may often involve breaking the law or defying authority in a harmless way in pursuit of a political goal, with terrorism, which involves breaking the law in a violent or dangerous way for the same ends. It's important that such a distinction is kept, and the state cannot depict any and all political motivated misbehaviour as "terrorism"

kevin_b_er 8y ago
Unofficial versions of the law are available, somewhat. The only official version of the law is the annotated one. Thus the only official law is deemed secret without payment by the state. Thus you cannot know the true law in Georgia without paying. Not to mention the official annotations are considered authoritative. Lawyer and judges reference them, making them part of the law.
- rayiner 8y ago
  Lawyers and judges reference a huge variety of materials in their opinions. That doesn’t make all those reference materials “part of the law.” These annotations do not appear to be essential to understanding the law. They appear to be explanatory aids.
  - moefh 8y ago
    > These annotations do not appear to be essential to understanding the law At least 3 judges disagree with this (quoted from the article): > “The annotations clearly have authoritative weight in explicating and establishing the meaning and effect of Georgia’s laws,” Judge Stanley Marcus wrote for a unanimous three-judge panel of the court

deleted 8y ago

[deleted]

SeanLuke 8y ago

> The Republic of Georgia What is this?

forgottenpass 8y ago
A name for the state of Georgia. Most U.S. states have a few names, some unofficial names- like "Rhode Island" - are very popular (the name of that state is actually "State of Rhode Island and Providence Plantations"). The inclusion of "republic" means it's probably a hangover rooted in colonial, revolutionary, and/or confederate time periods.
- SeanLuke 8y ago
  > A name for the state of Georgia Where is "The Republic of Georgia" documented as a common name for Georgia? "The Republic of Georgia" was the name of the country Georgia prior to the breakup of the USSR.
anoncake 8y ago
I understood it to mean the independent country rather than the US state. Apparently the opposite was meant.