6 ms·

Let's take this speculative legislation down the slippery slope, shall we? Next stop: full-speed collision with the First Amendment!... Putting the URL in que

Let's take this speculative legislation down the slippery slope, shall we? Next stop: full-speed collision with the First Amendment!... Putting the URL in question on a website... but it's not actually a hyperlink, just plain text? Felony or not? Printing the URL on a t-shirt and selling them? Felony or not? Passing out pamphlets that list the URL? Felony or not? Mentioning the URL in a news publication? Felony or not? Telling your friend the URL? Felony or not?

AndrewMoffat 15y ago
The fact that these legislators don't see those immediately-relevant cases you mentioned as being enough gray area to put doubt in their mind as to the effectiveness of the legislation really doesn't speak well to their comprehension of how the internet works. It's really sad.
- earl 15y ago
  I'm only aware of a handful of senators (maybe the macaca jackass, or perhaps santorum) that have been in any way hurt by not knowing how the internet works. I wish they were so incentivized, but they seem to be following the incentives they have.
Tangaroa 15y ago
Mens Rea.
- CWuestefeld 15y ago
  Yes, but (not having seen the text of the bill), the reporting implies that there is no requirement of mens rea. If they're removing safe harbor provisions that protect some kind of clearinghouse (like a message form) from being responsible for what member post, then it must necessarily have no requirement for mens rea.
  - gburt 15y ago
    In fact, what it would be doing is redefining "guilty". You'd be of guilty mind when the crime you intended to commit was sharing a URL.
  - anigbrowl 15y ago
    Yes, but (not having seen the text of the bill), the reporting implies... That doesn't strike me as a very reliable basis for discussion. I have an extremely low opinion of the media's ability or desire to accurately report on legislative or judicial matters. Regarding this bill (which I have read), I'm struck by the poor reporting of the new procedural safeguards for defendants and checks upon the activity of law enforcement. I don't think I'd support this bill, but reports so far are giving readers a very lopsided view of it.
- deleted 15y ago
  [deleted]
- barrkel 15y ago
  Ignorantia juris non excusat. (Note to downvoter(s): this is a genuine counterpoint to mens rea. You can break a criminal law with a clear conscience, yet still be convicted, when the reason you had a clear conscience is that you didn't know it was illegal. It's a fine distinction.)
  - billswift 15y ago
    Except that with the proliferation of laws in recent decades, "Ignorance of the law is no excuse" has become a sick joke. It is literally impossible for someone to know all the laws they could be breaking. See for example Harvey Silverglate's recent book, Three Felonies a Day. Also, apparently ignorance of the law is perfectly acceptable if you are a cop or DA, http://reason.com/archives/2010/08/02/ignorance-of-the-law-is-no-exc http://reason.com/archives/2010/08/02/ignorance-of-the-law-i...
    - awhow 15y ago
      Yeah, and remember it was the idea of "ignorance of the law is no excuse", that ended the sitcom Seinfeld. Sad.
      - danssig 15y ago
        I personally think this statement is pretty misunderstood. I don't think they mean "ignorance of the law is not a valid excuse" (i.e. "you should have known") but rather "if you don't know the law we're still going to punish you" (i.e. "we don't care if you could have known or not").
  - dpatru 15y ago
    Mens rea has to do with the natural consequences of the act while legal mistake (not knowing the law) has to do with the legal consequences. So, eg, if I burn down your house, mens rea asks, "did I intend to cause the fire?" while legal mistake asks, "did I know it was illegal?" Generally lack of mens rea is a defense (I burned down your house by accidently starting a grease fire in the kitchen,) while legal mistake is not (I didn't know it was illegal to burn down houses.) The exception to legal mistake is when the law requires legal knowledge, eg, knowingly failing to file a tax return (I must know that the return is required.) There is also factual mistake where the mistake is not about the law but about some fact necessary to the crime, eg I intend to link to burn down my neighbor's house but instead, mistaking my house for my neighbor's, burn down my own house.
- edanm 15y ago
  For anyone else as ignorant as me (from Wikipedia): Mens rea is Latin for "guilty mind".[1] In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty unless the mind be also guilty". Thus, in jurisdictions with due process, there must be an actus reus accompanied by some level of mens rea to constitute the crime with which the defendant is charged (see the technical requirement of concurrence). As a general rule, criminal liability does not attach to a person who acted with the absence of mental fault. The exception is strict liability crimes.
abecedarius 15y ago
Has a legislator ever paid much of a political cost for passing unconstitutional legislation? It must have happened, but I'm not aware myself of any serious pain for any of them.
- cletus 15y ago
  One example I recall from the 90s is where Congress passed a law giving the President line-item veto power over the budget (meaning the president was free to strike down any parts of it he saw fit), which was something the Clinton Whitehouse sought. That power was ruled unconstitutional by the Supreme Court and overturned. I don't recall anyone paying any kind of price for that even though it was a complete abdication of Congress' authority.
  - anigbrowl 15y ago
    That's a somewhat inaccurate summary. Reagan had also explicitly asked for it, and the 1996 bill was introduced and mostly supported by the Republicans, who you may recall had a Congressional majority at the time. Senator Bob Dole, who introduced the bill, was the GOP candidate for president in the same year, and one has to wonder if its introduction was partially aimed at burnishing his credentials as an opponent of pork-barrel politics. There were two attempts to bring it back in 2006, both sponsored by prominent Republicans. Any president would like more authority over the budget, but the GOP does seem to have invested the most political capital in it. The general public seems fairly indifferent to the niceties of constitutional law so I'm not surprised the proponents haven't suffered any major electoral rebukes. http://en.wikipedia.org/wiki/Line-item_veto_in_the_United_States http://en.wikipedia.org/wiki/Line-item_veto_in_the_United_St... http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=104&session=1&vote=00115#position http://www.senate.gov/legislative/LIS/roll_call_lists/roll_c...
- OstiaAntica 15y ago
  There are dozens of Democrats who voted for the unconstitutional individual mandate in ObamaCare who lost their seats last cycle.
edanm 15y ago
Let's substitute one criminal activity for another. Let's say instead of linking to a site that allows you to download copyrighted material, we were talking about linking to a site that allowed you to order a hit on your wife/husband. Or a site that allowed you to order custom-made child pornography. (1) I'm pretty sure that, if that were the site in question, many of your rhetorical questions won't seem quite as ridiculous. In fact, I'm pretty sure even the last question you pose, telling a friend the URL, can in some cases be construed as illegal, and certainly immoral. Again, not all cases, but some cases. And if we forget the slippery slope fallacy and focus on just the linking, how would you feel if a news website actually linked to a site that allows people to download child pornography? Or allows people to order a hit on someone? 1 - I'm not saying copyright infringement is anywhere near the level of wrong I'm talking about. It's just that using something that is clearly considered wrong to all people, is a great way to clear up, in your own mind, whether what you're objecting to is the text of the bill, or the fact that it's talking about copyright infringement. I'm guessing most people here would be all for a law that banned passing out the URL of a site that solicited murders, etc. But when talking about copyright infringement, your preconceived notion that copyright infringement is OK gets in the way. EDIT: Minor fixes.
- gburt 15y ago
  I don't think most people would be for a law that bans passing out a URL that solicits murders. We may not agree with the site, but sharing the URL of it should not be a crime. If you gave someone -- say a reporter -- the contact information of a murderer to interview for a story, should that be a crime?
  - edanm 15y ago
    "If you gave someone -- say a reporter -- the contact information of a murderer to interview for a story, should that be a crime?" No. Which is why I said about sharing the URL: "Again, not all cases [should be illegal], but some cases." But as I said in another comment, if I gave someone the URL to a site from which he could order a hit on his wife, knowing he was planning on doing so, and then he went ahead and did it, could I be arrested as an accomplice? Let's remove computers entirely to see where we stand. If I gave someone the phone number of a hitman, would I be an accomplice? I don't know the answer for sure, but I suspect that I could be seen as an accomplice. So why is this different?
pbhjpbhj 15y ago
Printing the QR code for the URL?
jamesaguilar 15y ago
What about a link to this list of urls you're not allowed to link to.

AndrewMoffat 15y ago

The fact that these legislators don't see those immediately-relevant cases you mentioned as being enough gray area to put doubt in their mind as to the effectiveness of the legislation really doesn't speak well to their comprehension of how the internet works. It's really sad.

earl 15y ago
I'm only aware of a handful of senators (maybe the macaca jackass, or perhaps santorum) that have been in any way hurt by not knowing how the internet works. I wish they were so incentivized, but they seem to be following the incentives they have.

Tangaroa 15y ago

Mens Rea.

CWuestefeld 15y ago
Yes, but (not having seen the text of the bill), the reporting implies that there is no requirement of mens rea. If they're removing safe harbor provisions that protect some kind of clearinghouse (like a message form) from being responsible for what member post, then it must necessarily have no requirement for mens rea.
- gburt 15y ago
  In fact, what it would be doing is redefining "guilty". You'd be of guilty mind when the crime you intended to commit was sharing a URL.
- anigbrowl 15y ago
  Yes, but (not having seen the text of the bill), the reporting implies... That doesn't strike me as a very reliable basis for discussion. I have an extremely low opinion of the media's ability or desire to accurately report on legislative or judicial matters. Regarding this bill (which I have read), I'm struck by the poor reporting of the new procedural safeguards for defendants and checks upon the activity of law enforcement. I don't think I'd support this bill, but reports so far are giving readers a very lopsided view of it.
deleted 15y ago
[deleted]
barrkel 15y ago
Ignorantia juris non excusat. (Note to downvoter(s): this is a genuine counterpoint to mens rea. You can break a criminal law with a clear conscience, yet still be convicted, when the reason you had a clear conscience is that you didn't know it was illegal. It's a fine distinction.)
- billswift 15y ago
  Except that with the proliferation of laws in recent decades, "Ignorance of the law is no excuse" has become a sick joke. It is literally impossible for someone to know all the laws they could be breaking. See for example Harvey Silverglate's recent book, Three Felonies a Day. Also, apparently ignorance of the law is perfectly acceptable if you are a cop or DA, http://reason.com/archives/2010/08/02/ignorance-of-the-law-is-no-exc http://reason.com/archives/2010/08/02/ignorance-of-the-law-i...
  - awhow 15y ago
    Yeah, and remember it was the idea of "ignorance of the law is no excuse", that ended the sitcom Seinfeld. Sad.
    - danssig 15y ago
      I personally think this statement is pretty misunderstood. I don't think they mean "ignorance of the law is not a valid excuse" (i.e. "you should have known") but rather "if you don't know the law we're still going to punish you" (i.e. "we don't care if you could have known or not").
- dpatru 15y ago
  Mens rea has to do with the natural consequences of the act while legal mistake (not knowing the law) has to do with the legal consequences. So, eg, if I burn down your house, mens rea asks, "did I intend to cause the fire?" while legal mistake asks, "did I know it was illegal?" Generally lack of mens rea is a defense (I burned down your house by accidently starting a grease fire in the kitchen,) while legal mistake is not (I didn't know it was illegal to burn down houses.) The exception to legal mistake is when the law requires legal knowledge, eg, knowingly failing to file a tax return (I must know that the return is required.) There is also factual mistake where the mistake is not about the law but about some fact necessary to the crime, eg I intend to link to burn down my neighbor's house but instead, mistaking my house for my neighbor's, burn down my own house.
edanm 15y ago
For anyone else as ignorant as me (from Wikipedia): Mens rea is Latin for "guilty mind".[1] In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty unless the mind be also guilty". Thus, in jurisdictions with due process, there must be an actus reus accompanied by some level of mens rea to constitute the crime with which the defendant is charged (see the technical requirement of concurrence). As a general rule, criminal liability does not attach to a person who acted with the absence of mental fault. The exception is strict liability crimes.

abecedarius 15y ago

Has a legislator ever paid much of a political cost for passing unconstitutional legislation? It must have happened, but I'm not aware myself of any serious pain for any of them.

cletus 15y ago
One example I recall from the 90s is where Congress passed a law giving the President line-item veto power over the budget (meaning the president was free to strike down any parts of it he saw fit), which was something the Clinton Whitehouse sought. That power was ruled unconstitutional by the Supreme Court and overturned. I don't recall anyone paying any kind of price for that even though it was a complete abdication of Congress' authority.
- anigbrowl 15y ago
  That's a somewhat inaccurate summary. Reagan had also explicitly asked for it, and the 1996 bill was introduced and mostly supported by the Republicans, who you may recall had a Congressional majority at the time. Senator Bob Dole, who introduced the bill, was the GOP candidate for president in the same year, and one has to wonder if its introduction was partially aimed at burnishing his credentials as an opponent of pork-barrel politics. There were two attempts to bring it back in 2006, both sponsored by prominent Republicans. Any president would like more authority over the budget, but the GOP does seem to have invested the most political capital in it. The general public seems fairly indifferent to the niceties of constitutional law so I'm not surprised the proponents haven't suffered any major electoral rebukes. http://en.wikipedia.org/wiki/Line-item_veto_in_the_United_States http://en.wikipedia.org/wiki/Line-item_veto_in_the_United_St... http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=104&session=1&vote=00115#position http://www.senate.gov/legislative/LIS/roll_call_lists/roll_c...
OstiaAntica 15y ago
There are dozens of Democrats who voted for the unconstitutional individual mandate in ObamaCare who lost their seats last cycle.

edanm 15y ago

Let's substitute one criminal activity for another. Let's say instead of linking to a site that allows you to download copyrighted material, we were talking about linking to a site that allowed you to order a hit on your wife/husband. Or a site that allowed you to order custom-made child pornography. (1) I'm pretty sure that, if that were the site in question, many of your rhetorical questions won't seem quite as ridiculous. In fact, I'm pretty sure even the last question you pose, telling a friend the URL, can in some cases be construed as illegal, and certainly immoral. Again, not all cases, but some cases. And if we forget the slippery slope fallacy and focus on just the linking, how would you feel if a news website actually linked to a site that allows people to download child pornography? Or allows people to order a hit on someone? 1 - I'm not saying copyright infringement is anywhere near the level of wrong I'm talking about. It's just that using something that is clearly considered wrong to all people, is a great way to clear up, in your own mind, whether what you're objecting to is the text of the bill, or the fact that it's talking about copyright infringement. I'm guessing most people here would be all for a law that banned passing out the URL of a site that solicited murders, etc. But when talking about copyright infringement, your preconceived notion that copyright infringement is OK gets in the way. EDIT: Minor fixes.

gburt 15y ago
I don't think most people would be for a law that bans passing out a URL that solicits murders. We may not agree with the site, but sharing the URL of it should not be a crime. If you gave someone -- say a reporter -- the contact information of a murderer to interview for a story, should that be a crime?
- edanm 15y ago
  "If you gave someone -- say a reporter -- the contact information of a murderer to interview for a story, should that be a crime?" No. Which is why I said about sharing the URL: "Again, not all cases [should be illegal], but some cases." But as I said in another comment, if I gave someone the URL to a site from which he could order a hit on his wife, knowing he was planning on doing so, and then he went ahead and did it, could I be arrested as an accomplice? Let's remove computers entirely to see where we stand. If I gave someone the phone number of a hitman, would I be an accomplice? I don't know the answer for sure, but I suspect that I could be seen as an accomplice. So why is this different?

pbhjpbhj 15y ago

Printing the QR code for the URL?

jamesaguilar 15y ago

What about a link to this list of urls you're not allowed to link to.