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But this is just a policy clarification and not a change to the text of the CFAA itself. Policy is not law and there can be arbitrary exceptions and even compl

But this is just a policy clarification and not a change to the text of the CFAA itself. Policy is not law and there can be arbitrary exceptions and even complete reversals of policy with a change in power.

user3939382 4y ago
In the abstract, arbitrary enforcement of the law is a serious threat to democracy. I completely agree, the law needs to be amended. Unfortunately Congress doesn't seem to act unless it's in the interest of their megacorp donors.
- robonerd 4y ago
  On the other hand, airtight enforcement of all laws is a serious threat to liberty. Laws are imperfect and prosecutorial discretion is an important safety mechanism to prevent people in odd edge cases (which it turns out, are common) from getting unjustly maimed by the legal apparatus. Adjusting laws is also part of the process, but that is a slow process (another safety mechanism.)
  - mLuby 4y ago
    There is already a safety mechanism for that: jury nullification. Airtight enforcement of all laws is only a threat to liberty when the laws themselves are a threat to liberty.
    - lazide 4y ago
      You’ll find few judges letting anyone use jury nullification in instructions, or telling any of the jurors about it.
    - lathiat 4y ago
      CGP Grey covered jury nullification pretty well: https://www.youtube.com/watch?v=uqH_Y1TupoQ https://www.youtube.com/watch?v=uqH_Y1TupoQ
  - pdonis 4y ago
    > airtight enforcement of all laws is a serious threat to liberty Only because "all laws" now includes all manner of micromanagement of people's lives by the government. The proper way to fix that problem is to stop the micromanagement by repealing all of those laws, not by making the micromanagement discretionary. Nobody complains about "airtight enforcement" of laws against, for example, murder. In fact, the common complaint about those laws--i.e., laws that actually encode a prohibition against an obvious crime--is that they do not get the airtight enforcement that they should get--because law enforcement and politicians are too preoccupied with all of the micromanagement to just do their basic job of protecting people's basic rights.
    - staticassertion 4y ago
      People complain about lack of discretion with murder - that's why we have multiple degrees, and it's a matter of discretion (by many parties) which was committed. Discretion is fundamental to the legal system. Any system that doesn't allow discretion is going to be a disaster - the world is complex, there's always nuance. It also leads to abuse, but I reject the idea that strict enforcement would solve abuse - but you've basically said "some laws" are bad laws so it's hard to say. I suspect you're just saying "government should stay out of everything, that way people are free", and you're ignoring the fact that in a system like that no one's stopping a bunch of assholes from shitting on everyone else because it's not illegal.
      - pdonis 4y ago
        > People complain about lack of discretion with murder I don't think people complain about lack of discretion with murder. I think people complain about too much discretion: obvious murderers are allowed to go free because of technicalities or political influence. > that's why we have multiple degrees, and it's a matter of discretion (by many parties) which was committed. No, it's a matter of discretion which gets charged, in the sense that the prosecutor cannot be forced to bring one particular charge or another; it's the prosecutor's choice. But in most cases, which charge best fits a particular set of facts should not be difficult to determine. And in a sane legal system which only focused on protecting basic rights instead of trying to micromanage everything, it wouldn't be. > Discretion is fundamental to the legal system. Discretion in rare edge cases is fundamental to the legal system. But as I commented elsewhere in this thread, if the need for discretion is common, then we aren't talking about edge cases; we're talking about a legal system that has gotten out of hand. > I suspect you're just saying "government should stay out of everything, that way people are free" I have no idea where you're getting that from since I explicitly said the government's basic job is to protect people's basic rights.
  - pdonis 4y ago
    > odd edge cases (which it turns out, are common) If they're common, they're not edge cases. The whole point of having prosecutorial discretion for edge cases is that such cases should be extremely rare. If they turn out to be common, it's a sign that the whole system of law has gotten out of hand, not that some boundaries need to be tweaked.
    - lazide 4y ago
      Any rule applied across 300 million people is going to have edge cases regularly - maybe even weekly or monthly - that need to be investigated and decided on. That makes it ‘common’ but also not worthwhile to spend months updating the code on if they are each different issues.
      - pdonis 4y ago
        > Any rule applied across 300 million people is going to have edge cases regularly The rule against murder is applied across 300 million people and very rarely has edge cases. The same goes for the rule against fraud, which is more to the point for this discussion (see below). The problem is that most of the "rules" that are applied across 300 million people are not straightforward rules like the ones against murder or fraud, but micromanaging rules like the ones in the law that is the subject of this article. The law itself is silly: fraud is already a crime, why should fraud using a computer be any different from any other kind of fraud? If we just had the simple rule against fraud, it would be obvious that "white hat" security testing of computer systems is not fraud and is not a crime, and we wouldn't have all the edge cases that make enforcement of this law such a mess. The only reason the edge cases are so common is that the laws are not written to embody simple straightforward rules against obvious crimes that everybody can recognize; they are written to embody complex, byzantine rules that have evolved over time because people have the mistaken belief that giving more power to the government can solve problems. But actually, as the old joke about regular expressions goes, when people try to use the government to solve a problem, now they have two problems.
        lazide 4y ago
  - netizen-936824 4y ago
    Sounds to me like we need to write better laws
    - nkrisc 4y ago
      Yes. But the world is too complex to write perfect laws so we must always account for discretion. Writing better laws is a goal, not a solution.
      - monocasa 4y ago
        I agree that it's not a perfect solution (there's rarely such a thing in the application of law), but it's a better solution than a single DoJ administration's policy statements.
        robonerd 4y ago
        Both at once works better than trusting just one. Think of it as Defense in Depth.
        monocasa 4y ago
        I don't think anyone is suggesting anything different, only that a change in law would be much stronger effective defense and something to also strive for (despite also not being perfect).
    - StillBored 4y ago
      Or at least in the USA, actually seat a "jury of ones peers" rather than random Joes that can barely turn on a computer. For computer related crimes it shouldn't be that hard to find people working in a technology oriented field.
      - robonerd 4y ago
        That's a difficult principle to generalize. Surely cops shouldn't get juries comprised of other cops. A lot of professions are known for circling the wagons and protecting their own (and I think tech is not the worst, but certainly not an exception.)
  - nybble41 4y ago
    > … prosecutorial discretion is an important safety mechanism to prevent people in odd edge cases … from getting unjustly maimed by the legal apparatus. I agree, but there needs to be a mostly-automatic mechanism whereby repeated exercise of this discretion affects the law itself, so that you don't create the opposite problem: people getting unjustly maimed by the legal apparatus because a prosecutor decided to use their "discretion", for whatever reason, to enforce an obsolete law which was still on the books even though it's almost never enforced. (Because legislators apparently have better things to do than repeal old laws which aren't affecting hardly anyone.) A law which consistently goes unenforced should eventually become unenforceable, not remain discretionary. Consider this an application of the estoppel principle: If you choose not to enforce the law in cases A, B, and C, you shouldn't be able to later try to enforce it in case D without showing that there is some substantial difference between D and the first three cases. Mandatory sunset clauses would be another good idea, along with a requirement that the entire bill, along with any external documents incorporated by reference (e.g. building codes), must be read into the official record with a quorum of the legislature present before it can be passed or renewed.
    - reaperducer 4y ago
      Mandatory sunset clauses would be another good idea Some states have a government body that does nothing but review old laws and rules and agencies to see if they're still needed. I don't know how successful they are (for varying definitions of "successful,") but they do exist.
      - dane-pgp 4y ago
        To give an example, the UK has passed seventeen "Statute Law (Repeals) Acts"[0] since 1969, the most recent[1] being in 2013, which repealed the whole of 817 Acts of Parliament, and portions of more than 50 others (on the advice of the Law Commission[2]). [0] https://en.wikipedia.org/wiki/Statute_Law_%28Repeals%29_Act https://en.wikipedia.org/wiki/Statute_Law_%28Repeals%29_Act [1] https://en.wikipedia.org/wiki/Statute_Law_%28Repeals%29_Act_2013 https://en.wikipedia.org/wiki/Statute_Law_%28Repeals%29_Act_... [2] https://en.wikipedia.org/wiki/Law_Commission_%28England_and_Wales%29 https://en.wikipedia.org/wiki/Law_Commission_%28England_and_...
  - RajT88 4y ago
    > people in odd edge cases (which it turns out, are common) Common in this case because the CFAA is often used not as an enforcement tool, but as a way of silencing critics, stifling scrutiny or just in general saving face.
- tiahura 4y ago
  In the abstract, arbitrary enforcement of the law is a serious threat to democracy. No its not. Prosecutorial discretion is older than the US Constitution. No one expects the police to pull over every driver that is going 36 in a 35, or arrest someone speeding to the hospital, or arrest everyone that fails to return a library book, or arrest every birthday party with loud music after 10. The police and prosecutors have always had the power to use their good judgment and warn without citing or prosecuting.
  - sidewndr46 4y ago
    Something being old doesn't make it a good thing. Slavery was pretty old, we managed to get rid of that and I don't think we're worse off. To your point: I'd be thrilled if police officers actually pulled over everyone violating each and every traffic law. It'd make roads much safer and easier to use. As it stands where I live there is no longer any traffic enforcement.
  - InitialLastName 4y ago
    The difficulty that arises when people in power have the opportunity to use judgement to decide the courses of other peoples' lives is that we regularly see that judgement implement their (entirely human, but unjust) biases. Maybe they let the hot girl run a stop sign, but do an "exploratory stop" on the black dude because he "looks sketchy", escalate to a strip search because of a "odor of marijuana" and leave him with his car disassembled on the side of the road when they don't find anything (assuming nobody catches a beating or a bullet over a miscommunication). On the other hand, efforts to constrain that power have a tendency to encode societal biases and injustices in law (see mandatory minimum sentences as a prime example), so it's not at all clear what the right compromise is.
    - tiahura 4y ago
      Then fire them and get new ones. We want the system biased towards non-prosecution.
  - Thetawaves 4y ago
    When unfair laws are enforced uniformly, the sons and daughters of the legislature, or even the legislature themselves become subject to the same laws they create. This applies the necessary pressure to repeal unjust laws. The alternative are laws that are only applied against 'bad people' - as determined through some inscrutable belief system. You should be able to imagine how this can be used to discriminate against entire classes of people.
VLM 4y ago
It presents strongly in the courtroom for the defense. Even the worst case scenario of it being revoked in the future, "The jury needs to know the government cannot make up its mind if the defendant committed a crime, or more likely, did not commit a crime." "Preponderance of the Evidence" is simply going to be tougher when this is handed to the defense.
zionic 4y ago
The recent 5th circuit decision, once it makes to go the Supreme Court, is going to change a lot in this regard.
ocdtrekkie 4y ago
Bear in mind though, a complete reversal of policy could be contested via the https://ballotpedia.org/Arbitrary-or-capricious_test https://ballotpedia.org/Arbitrary-or-capricious_test Sure, this isn't a revised law, considering how hard that is to pass today, but it is a useful piece of official text from the highest law enforcement body of the land that should be taken to indicate what the government considers acceptable behavior. Proving you were abiding by what the government declared permissible is a pretty solid defense.
frankfrankfrank 4y ago
I propose that this issue be affected in a different manner; through legislation to make companies and the executive level personally liable for any and all damages due to breaches, to an extreme level to motivate the companies and people to alter their positions on these matters. I get that people have this desire to impose their assistance on others by testing and revealing security vulnerabilities, however, how would you like if someone knocked on your door one day and said, "hey, I was checking out all your doors and windows last night while you were sleeping and hacked into your security system, and thought you should know that it's all suuuuuuper insecure." I doubt most of us would appreciate that either. What we really really dealing with here is an abuse by the companies/services, where they have externalized the cost/risk of security vulnerabilities in lieu of profits and exec bonuses. If they had to internalize the risks/costs through my proposed damages, they would be quite motivated to prioritize even paying for white hat pen testing type activities, or even just opening up avenues for reporting and rewarding.
scotuswroteus 4y ago
There can also be arbitrary unlawful actions by the DOJ that are given wide berth and discretion.
aerostable_slug 4y ago
> arbitrary exceptions and even complete reversals of policy I see you're familiar with the ATF.
giantg2 4y ago
Yep, this is very true. We see this all the time with other agencies. For example, the ATF waffles and changes definitions all the time resulting in felony charges for people who owned something that was previously approved. No reason to believe this is any different. Although it is a step in the right direction - just not a permanent step.
- pas 4y ago
  Laws aren't permanent either. Even the constitution was planned to be amended regularly.
  - giantg2 4y ago
    Yes, but laws require going through a legislative process. Agency regulation changes happen almost unilaterally, and generally much faster.
    - lazide 4y ago
      They are reviewed by Congress, and agency regulation was setup specifically by Congress that didn’t want to be bothered with the minutia.
      - giantg2 4y ago
        Are they actually reviewed? My understanding is that the agency submits them for review, but doesn't require any action for them to take effect. If congress doesn't like it, they have to submit a joint resolution to overrule it. The point is, if it were a bill, you'd have to have enough support to make the change, compromise on terms/ammendments, etc. It also means the elected representatives would be held accountable by the voters. As a regulation, they can avoid compromise and most accountability. The regulation would have to piss off the ruling party for the joint resolution to be a viable option.
        lazide 4y ago
starwind 4y ago
Policies can inform judges decision which inform precedent so I don't think this is worthless
- tptacek 4y ago
  Orin Kerr is commenting about this on Twitter right now and says pretty clearly that the new policy doesn't create any rights in court; you can use it to try to persuade DOJ not to prosecute, but it's unlikely that you can use it as a defense once they do.
- londons_explore 4y ago
  Is this true? Is a valid defense in court "your honour, I'm afraid that while I have broken the law, the prosecution should have ignored it according to their own policies?"
  - nicknow 4y ago
    No. The Principles of Federal Prosecution (Title 9 of the Justice Manual) make very clear you can't litigate whether a prosecutor is following DOJ's internal policies - that's between the Assistant US Attorney, the US Attorney, and the Attorney General.
    - tiahura 4y ago
      A judge may or may not care about DOJ's internal policies, and DOJ's disclaimer that's not binding on them isn't binding on the judge. Defendants certainly argue that a particular prosecution is selective enforcement and will refer to DOJ policies.
      - cmeacham98 4y ago
        Selective enforcement is legal though, no (as long as it isn't selecting based on a protected class such as race)?
        4y ago
vkou 4y ago
1. There isn't a single country in the world that does not use policy as the cornerstone of day-to-day governance, procedure, and enforcement. 2. There can be arbitrary changes to law too, with a change in power. You have numerous forms of redress when you feel that policy is incompatible with law. You can ask the agency in question. You can ask a legislator to pressure the agency. You can ask a legislator to write an explicit law. You can take the agency to court. You can elect an executive that can lay down policy requirements on their subservient agencies. There's a very unfortunate political meme in this country, that frequently repeats the lie that policy (executive or otherwise) is not the product of elected government. Like any magical spell, if repeated loudly, and frequently enough, I suppose its disciples might will it into being. When you don't like how the state's prosecutor's office works, in this country, you can elect a new head prosecutor, who will make changes in their department. When you don't like how the federal prosecutor's office works, in this country, you can elect a new executive. All of these agencies under thus, under direct democratic control.
- ahtihn 4y ago
  > 2. There can be arbitrary changes to law too, with a change in power. Arbitrary changes to law aren't retroactive in general. If you did something in the past that has later become illegal, you can't be prosecuted. The same doesn't apply for policy changes.
  - vkou 4y ago
    There is no prohibition on the legislature passing civil ex-post-facto laws, only criminal. Agencies can only enforce ex-post-facto policy changes if congress explicitly authorized them to. ... Also, as Matt Levine points out, executive agencies are prohibited by law from making capricious and arbitrary policy changes. Congress is not bound by any such restrictions - it can pass legislature that is as capricious and arbitrary, and as completely devoid of public input as it likes.
duxup 4y ago
I'd have no problem with the law being changed too. However regardless how strict the law someone "could" always abuse it anyway and some sensible level enforcement is always needed. This isn't a panacea but responsible prosecution or lack of it is important too.
pvarangot 4y ago
This was a constant PITA while I was on an H1B and while not changing the laws, they kept on changing exactly how they interpreted everything. My lawyers told me also to not use government benefits while on a Green Card, because even though it's probably ok and won't harm my chances at citizenship they may change how they interpret it later down the road and even though I was in the clear when I got the benefits it might as well become a showstopper later on.
- legalcorrection 4y ago
  [deleted]
  - cmeacham98 4y ago
    Citation?
- spoonjim 4y ago
  Yes, this is one of the drawbacks of Congress delegating broad swaths of authority to regulatory agencies… there is no protection from ex post facto changes.
bandyaboot 4y ago
Agreed. People who care about this stuff should absolutely keep this in mind when they’re voting for who should be in power.

user3939382 4y ago

In the abstract, arbitrary enforcement of the law is a serious threat to democracy. I completely agree, the law needs to be amended. Unfortunately Congress doesn't seem to act unless it's in the interest of their megacorp donors.

robonerd 4y ago
On the other hand, airtight enforcement of all laws is a serious threat to liberty. Laws are imperfect and prosecutorial discretion is an important safety mechanism to prevent people in odd edge cases (which it turns out, are common) from getting unjustly maimed by the legal apparatus. Adjusting laws is also part of the process, but that is a slow process (another safety mechanism.)
- mLuby 4y ago
  There is already a safety mechanism for that: jury nullification. Airtight enforcement of all laws is only a threat to liberty when the laws themselves are a threat to liberty.
  - lazide 4y ago
    You’ll find few judges letting anyone use jury nullification in instructions, or telling any of the jurors about it.
  - lathiat 4y ago
    CGP Grey covered jury nullification pretty well: https://www.youtube.com/watch?v=uqH_Y1TupoQ https://www.youtube.com/watch?v=uqH_Y1TupoQ
- pdonis 4y ago
  > airtight enforcement of all laws is a serious threat to liberty Only because "all laws" now includes all manner of micromanagement of people's lives by the government. The proper way to fix that problem is to stop the micromanagement by repealing all of those laws, not by making the micromanagement discretionary. Nobody complains about "airtight enforcement" of laws against, for example, murder. In fact, the common complaint about those laws--i.e., laws that actually encode a prohibition against an obvious crime--is that they do not get the airtight enforcement that they should get--because law enforcement and politicians are too preoccupied with all of the micromanagement to just do their basic job of protecting people's basic rights.
  - staticassertion 4y ago
    People complain about lack of discretion with murder - that's why we have multiple degrees, and it's a matter of discretion (by many parties) which was committed. Discretion is fundamental to the legal system. Any system that doesn't allow discretion is going to be a disaster - the world is complex, there's always nuance. It also leads to abuse, but I reject the idea that strict enforcement would solve abuse - but you've basically said "some laws" are bad laws so it's hard to say. I suspect you're just saying "government should stay out of everything, that way people are free", and you're ignoring the fact that in a system like that no one's stopping a bunch of assholes from shitting on everyone else because it's not illegal.
    - pdonis 4y ago
      > People complain about lack of discretion with murder I don't think people complain about lack of discretion with murder. I think people complain about too much discretion: obvious murderers are allowed to go free because of technicalities or political influence. > that's why we have multiple degrees, and it's a matter of discretion (by many parties) which was committed. No, it's a matter of discretion which gets charged, in the sense that the prosecutor cannot be forced to bring one particular charge or another; it's the prosecutor's choice. But in most cases, which charge best fits a particular set of facts should not be difficult to determine. And in a sane legal system which only focused on protecting basic rights instead of trying to micromanage everything, it wouldn't be. > Discretion is fundamental to the legal system. Discretion in rare edge cases is fundamental to the legal system. But as I commented elsewhere in this thread, if the need for discretion is common, then we aren't talking about edge cases; we're talking about a legal system that has gotten out of hand. > I suspect you're just saying "government should stay out of everything, that way people are free" I have no idea where you're getting that from since I explicitly said the government's basic job is to protect people's basic rights.
- pdonis 4y ago
  > odd edge cases (which it turns out, are common) If they're common, they're not edge cases. The whole point of having prosecutorial discretion for edge cases is that such cases should be extremely rare. If they turn out to be common, it's a sign that the whole system of law has gotten out of hand, not that some boundaries need to be tweaked.
  - lazide 4y ago
    Any rule applied across 300 million people is going to have edge cases regularly - maybe even weekly or monthly - that need to be investigated and decided on. That makes it ‘common’ but also not worthwhile to spend months updating the code on if they are each different issues.
    - pdonis 4y ago
      > Any rule applied across 300 million people is going to have edge cases regularly The rule against murder is applied across 300 million people and very rarely has edge cases. The same goes for the rule against fraud, which is more to the point for this discussion (see below). The problem is that most of the "rules" that are applied across 300 million people are not straightforward rules like the ones against murder or fraud, but micromanaging rules like the ones in the law that is the subject of this article. The law itself is silly: fraud is already a crime, why should fraud using a computer be any different from any other kind of fraud? If we just had the simple rule against fraud, it would be obvious that "white hat" security testing of computer systems is not fraud and is not a crime, and we wouldn't have all the edge cases that make enforcement of this law such a mess. The only reason the edge cases are so common is that the laws are not written to embody simple straightforward rules against obvious crimes that everybody can recognize; they are written to embody complex, byzantine rules that have evolved over time because people have the mistaken belief that giving more power to the government can solve problems. But actually, as the old joke about regular expressions goes, when people try to use the government to solve a problem, now they have two problems.
      - lazide 4y ago
- netizen-936824 4y ago
  Sounds to me like we need to write better laws
  - nkrisc 4y ago
    Yes. But the world is too complex to write perfect laws so we must always account for discretion. Writing better laws is a goal, not a solution.
    - monocasa 4y ago
      I agree that it's not a perfect solution (there's rarely such a thing in the application of law), but it's a better solution than a single DoJ administration's policy statements.
      - robonerd 4y ago
        Both at once works better than trusting just one. Think of it as Defense in Depth.
        monocasa 4y ago
        I don't think anyone is suggesting anything different, only that a change in law would be much stronger effective defense and something to also strive for (despite also not being perfect).
  - StillBored 4y ago
    Or at least in the USA, actually seat a "jury of ones peers" rather than random Joes that can barely turn on a computer. For computer related crimes it shouldn't be that hard to find people working in a technology oriented field.
    - robonerd 4y ago
      That's a difficult principle to generalize. Surely cops shouldn't get juries comprised of other cops. A lot of professions are known for circling the wagons and protecting their own (and I think tech is not the worst, but certainly not an exception.)
- nybble41 4y ago
  > … prosecutorial discretion is an important safety mechanism to prevent people in odd edge cases … from getting unjustly maimed by the legal apparatus. I agree, but there needs to be a mostly-automatic mechanism whereby repeated exercise of this discretion affects the law itself, so that you don't create the opposite problem: people getting unjustly maimed by the legal apparatus because a prosecutor decided to use their "discretion", for whatever reason, to enforce an obsolete law which was still on the books even though it's almost never enforced. (Because legislators apparently have better things to do than repeal old laws which aren't affecting hardly anyone.) A law which consistently goes unenforced should eventually become unenforceable, not remain discretionary. Consider this an application of the estoppel principle: If you choose not to enforce the law in cases A, B, and C, you shouldn't be able to later try to enforce it in case D without showing that there is some substantial difference between D and the first three cases. Mandatory sunset clauses would be another good idea, along with a requirement that the entire bill, along with any external documents incorporated by reference (e.g. building codes), must be read into the official record with a quorum of the legislature present before it can be passed or renewed.
  - reaperducer 4y ago
    Mandatory sunset clauses would be another good idea Some states have a government body that does nothing but review old laws and rules and agencies to see if they're still needed. I don't know how successful they are (for varying definitions of "successful,") but they do exist.
    - dane-pgp 4y ago
      To give an example, the UK has passed seventeen "Statute Law (Repeals) Acts"[0] since 1969, the most recent[1] being in 2013, which repealed the whole of 817 Acts of Parliament, and portions of more than 50 others (on the advice of the Law Commission[2]). [0] https://en.wikipedia.org/wiki/Statute_Law_%28Repeals%29_Act https://en.wikipedia.org/wiki/Statute_Law_%28Repeals%29_Act [1] https://en.wikipedia.org/wiki/Statute_Law_%28Repeals%29_Act_2013 https://en.wikipedia.org/wiki/Statute_Law_%28Repeals%29_Act_... [2] https://en.wikipedia.org/wiki/Law_Commission_%28England_and_Wales%29 https://en.wikipedia.org/wiki/Law_Commission_%28England_and_...
- RajT88 4y ago
  > people in odd edge cases (which it turns out, are common) Common in this case because the CFAA is often used not as an enforcement tool, but as a way of silencing critics, stifling scrutiny or just in general saving face.
tiahura 4y ago
In the abstract, arbitrary enforcement of the law is a serious threat to democracy. No its not. Prosecutorial discretion is older than the US Constitution. No one expects the police to pull over every driver that is going 36 in a 35, or arrest someone speeding to the hospital, or arrest everyone that fails to return a library book, or arrest every birthday party with loud music after 10. The police and prosecutors have always had the power to use their good judgment and warn without citing or prosecuting.
- sidewndr46 4y ago
  Something being old doesn't make it a good thing. Slavery was pretty old, we managed to get rid of that and I don't think we're worse off. To your point: I'd be thrilled if police officers actually pulled over everyone violating each and every traffic law. It'd make roads much safer and easier to use. As it stands where I live there is no longer any traffic enforcement.
- InitialLastName 4y ago
  The difficulty that arises when people in power have the opportunity to use judgement to decide the courses of other peoples' lives is that we regularly see that judgement implement their (entirely human, but unjust) biases. Maybe they let the hot girl run a stop sign, but do an "exploratory stop" on the black dude because he "looks sketchy", escalate to a strip search because of a "odor of marijuana" and leave him with his car disassembled on the side of the road when they don't find anything (assuming nobody catches a beating or a bullet over a miscommunication). On the other hand, efforts to constrain that power have a tendency to encode societal biases and injustices in law (see mandatory minimum sentences as a prime example), so it's not at all clear what the right compromise is.
  - tiahura 4y ago
    Then fire them and get new ones. We want the system biased towards non-prosecution.
- Thetawaves 4y ago
  When unfair laws are enforced uniformly, the sons and daughters of the legislature, or even the legislature themselves become subject to the same laws they create. This applies the necessary pressure to repeal unjust laws. The alternative are laws that are only applied against 'bad people' - as determined through some inscrutable belief system. You should be able to imagine how this can be used to discriminate against entire classes of people.

VLM 4y ago

It presents strongly in the courtroom for the defense. Even the worst case scenario of it being revoked in the future, "The jury needs to know the government cannot make up its mind if the defendant committed a crime, or more likely, did not commit a crime." "Preponderance of the Evidence" is simply going to be tougher when this is handed to the defense.

zionic 4y ago

The recent 5th circuit decision, once it makes to go the Supreme Court, is going to change a lot in this regard.

ocdtrekkie 4y ago

Bear in mind though, a complete reversal of policy could be contested via the https://ballotpedia.org/Arbitrary-or-capricious_test https://ballotpedia.org/Arbitrary-or-capricious_test Sure, this isn't a revised law, considering how hard that is to pass today, but it is a useful piece of official text from the highest law enforcement body of the land that should be taken to indicate what the government considers acceptable behavior. Proving you were abiding by what the government declared permissible is a pretty solid defense.

frankfrankfrank 4y ago

I propose that this issue be affected in a different manner; through legislation to make companies and the executive level personally liable for any and all damages due to breaches, to an extreme level to motivate the companies and people to alter their positions on these matters. I get that people have this desire to impose their assistance on others by testing and revealing security vulnerabilities, however, how would you like if someone knocked on your door one day and said, "hey, I was checking out all your doors and windows last night while you were sleeping and hacked into your security system, and thought you should know that it's all suuuuuuper insecure." I doubt most of us would appreciate that either. What we really really dealing with here is an abuse by the companies/services, where they have externalized the cost/risk of security vulnerabilities in lieu of profits and exec bonuses. If they had to internalize the risks/costs through my proposed damages, they would be quite motivated to prioritize even paying for white hat pen testing type activities, or even just opening up avenues for reporting and rewarding.

scotuswroteus 4y ago

There can also be arbitrary unlawful actions by the DOJ that are given wide berth and discretion.

aerostable_slug 4y ago

> arbitrary exceptions and even complete reversals of policy I see you're familiar with the ATF.

giantg2 4y ago

Yep, this is very true. We see this all the time with other agencies. For example, the ATF waffles and changes definitions all the time resulting in felony charges for people who owned something that was previously approved. No reason to believe this is any different. Although it is a step in the right direction - just not a permanent step.

pas 4y ago
Laws aren't permanent either. Even the constitution was planned to be amended regularly.
- giantg2 4y ago
  Yes, but laws require going through a legislative process. Agency regulation changes happen almost unilaterally, and generally much faster.
  - lazide 4y ago
    They are reviewed by Congress, and agency regulation was setup specifically by Congress that didn’t want to be bothered with the minutia.
    - giantg2 4y ago
      Are they actually reviewed? My understanding is that the agency submits them for review, but doesn't require any action for them to take effect. If congress doesn't like it, they have to submit a joint resolution to overrule it. The point is, if it were a bill, you'd have to have enough support to make the change, compromise on terms/ammendments, etc. It also means the elected representatives would be held accountable by the voters. As a regulation, they can avoid compromise and most accountability. The regulation would have to piss off the ruling party for the joint resolution to be a viable option.
      - lazide 4y ago

starwind 4y ago

Policies can inform judges decision which inform precedent so I don't think this is worthless

tptacek 4y ago
Orin Kerr is commenting about this on Twitter right now and says pretty clearly that the new policy doesn't create any rights in court; you can use it to try to persuade DOJ not to prosecute, but it's unlikely that you can use it as a defense once they do.
londons_explore 4y ago
Is this true? Is a valid defense in court "your honour, I'm afraid that while I have broken the law, the prosecution should have ignored it according to their own policies?"
- nicknow 4y ago
  No. The Principles of Federal Prosecution (Title 9 of the Justice Manual) make very clear you can't litigate whether a prosecutor is following DOJ's internal policies - that's between the Assistant US Attorney, the US Attorney, and the Attorney General.
  - tiahura 4y ago
    A judge may or may not care about DOJ's internal policies, and DOJ's disclaimer that's not binding on them isn't binding on the judge. Defendants certainly argue that a particular prosecution is selective enforcement and will refer to DOJ policies.
    - cmeacham98 4y ago
      Selective enforcement is legal though, no (as long as it isn't selecting based on a protected class such as race)?
      - 4y ago

vkou 4y ago

1. There isn't a single country in the world that does not use policy as the cornerstone of day-to-day governance, procedure, and enforcement. 2. There can be arbitrary changes to law too, with a change in power. You have numerous forms of redress when you feel that policy is incompatible with law. You can ask the agency in question. You can ask a legislator to pressure the agency. You can ask a legislator to write an explicit law. You can take the agency to court. You can elect an executive that can lay down policy requirements on their subservient agencies. There's a very unfortunate political meme in this country, that frequently repeats the lie that policy (executive or otherwise) is not the product of elected government. Like any magical spell, if repeated loudly, and frequently enough, I suppose its disciples might will it into being. When you don't like how the state's prosecutor's office works, in this country, you can elect a new head prosecutor, who will make changes in their department. When you don't like how the federal prosecutor's office works, in this country, you can elect a new executive. All of these agencies under thus, under direct democratic control.

ahtihn 4y ago
> 2. There can be arbitrary changes to law too, with a change in power. Arbitrary changes to law aren't retroactive in general. If you did something in the past that has later become illegal, you can't be prosecuted. The same doesn't apply for policy changes.
- vkou 4y ago
  There is no prohibition on the legislature passing civil ex-post-facto laws, only criminal. Agencies can only enforce ex-post-facto policy changes if congress explicitly authorized them to. ... Also, as Matt Levine points out, executive agencies are prohibited by law from making capricious and arbitrary policy changes. Congress is not bound by any such restrictions - it can pass legislature that is as capricious and arbitrary, and as completely devoid of public input as it likes.

duxup 4y ago

I'd have no problem with the law being changed too. However regardless how strict the law someone "could" always abuse it anyway and some sensible level enforcement is always needed. This isn't a panacea but responsible prosecution or lack of it is important too.

pvarangot 4y ago

This was a constant PITA while I was on an H1B and while not changing the laws, they kept on changing exactly how they interpreted everything. My lawyers told me also to not use government benefits while on a Green Card, because even though it's probably ok and won't harm my chances at citizenship they may change how they interpret it later down the road and even though I was in the clear when I got the benefits it might as well become a showstopper later on.

legalcorrection 4y ago
[deleted]
- cmeacham98 4y ago
  Citation?
spoonjim 4y ago
Yes, this is one of the drawbacks of Congress delegating broad swaths of authority to regulatory agencies… there is no protection from ex post facto changes.

bandyaboot 4y ago

Agreed. People who care about this stuff should absolutely keep this in mind when they’re voting for who should be in power.