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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 mech

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.
    - staticassertion 4y ago
      > 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. Discretion is literally built in ie: intent, malice, negligence, etc - these are all subjective judgments that I think any sane person supports. Accidentally killing someone should be treated very differently from planned murder - and we use subjective judgment to determine the case. > 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. First off, no, it is not the prosecutor's sole discretion. Obviously the prosecution (which is many people who form a consensus) brings the charges, but the defense may attempt a plea for a different charge, and the judge will instruct the jury on how to determine a conviction. Discretion is fundamental to the entire process, as it should be. Second, notice that you're already saying things like "in most cases" ie: things are not 100% one way or the other. > 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. Discretion is already selectively applied. Not every case goes to a jury. We have different types of discretion, like civil law or arbitration. What no one is asking for is less discretion. "Zero tolerance" black and white policies are pretty much a disaster. > 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. Maybe you should come out and say what those basic rights are and are not?
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.

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.
  - staticassertion 4y ago
    > 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. Discretion is literally built in ie: intent, malice, negligence, etc - these are all subjective judgments that I think any sane person supports. Accidentally killing someone should be treated very differently from planned murder - and we use subjective judgment to determine the case. > 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. First off, no, it is not the prosecutor's sole discretion. Obviously the prosecution (which is many people who form a consensus) brings the charges, but the defense may attempt a plea for a different charge, and the judge will instruct the jury on how to determine a conviction. Discretion is fundamental to the entire process, as it should be. Second, notice that you're already saying things like "in most cases" ie: things are not 100% one way or the other. > 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. Discretion is already selectively applied. Not every case goes to a jury. We have different types of discretion, like civil law or arbitration. What no one is asking for is less discretion. "Zero tolerance" black and white policies are pretty much a disaster. > 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. Maybe you should come out and say what those basic rights are and are not?

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.