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> these are all subjective judgments that I think any sane person supports They are legal judgments that in the end, if the case goes to trial, get made by jur

by pdonis 4y ago

> these are all subjective judgments that I think any sane person supports They are legal judgments that in the end, if the case goes to trial, get made by juries. They are only "subjective" in that no person can truly see inside the mind of another, so everyone has to make their best judgment based on what they can see. That's not at all the same as law enforcement selectively enforcing micromanagement laws--my usual go-to example is laws against speeding. Nobody even pretends that enforcement of speeding laws is a reasonable use of discretion on the part of law enforcement: enforcement is based on using such laws as a revenue source. The CFAA is the same kind of thing: as I asked in another post upthread, since fraud is already illegal, why should using a computer to commit fraud be any different from committing fraud some other way? Why not just enforce the laws we already have against fraud? > 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 Again, this kind of "discretion" is not the same as the kind of "discretion" involved in enforcement of micromanaging laws like speeding laws. Obviously each party in the legal process has to make judgments. Prosecutors have to decide what charges the facts they have will support. Defense lawyers have to decide how best to defend their clients given what they know. But in a sane legal system, prosecutors should not be deciding which cases to aggressively prosecute based on political considerations (e.g., how Aaron Swartz was treated), and defense lawyers should not have to decide whether to advise their clients to accept a plea bargain based on how full the court's docket is. Nor, to get back to the subject of this thread, should prosecutors be deciding whether "white hat" security researchers are committing a crime. That should not even be on their radar. But with the CFAA, it is. And we're supposed to be so pleased that now the prosecutors will be less draconian in making such judgments than they were before. > Maybe you should come out and say what those basic rights are and are not? Um, how about the right not to be murdered or defrauded? Do those count?

staticassertion 4y ago
> They are legal judgments that in the end, if the case goes to trial, get made by juries. They are only "subjective" in that no person can truly see inside the mind of another, so everyone has to make their best judgment based on what they can see. It's really nuts to me that "legal" And "subjective" are concepts you're trying to draw a hard line between. Of course all legal judgments are subjective - that is both obviously inherent as well as being a desirable feature. Yes, you nailed it, the jury system does indeed require a judgment based on the information as it is presented to them... > Nobody even pretends that enforcement of speeding laws is a reasonable use of discretion on the part of law enforcement: enforcement is based on using such laws as a revenue source. I mean, how does this support your case? Speeding laws are extremely black and white, there's very little legal discretion, the discretion is in terms of enforcement ie: are you getting pulled over. But it's not like you sit in front of a jury and present the facts, it's much closer to what you seem to be advocating for - a system with less human intervention. > since fraud is already illegal, why should using a computer to commit fraud be any different from committing fraud some other way? Why not just enforce the laws we already have against fraud? For like a million reasons lol I feel like this is just "I have no idea how the legal system works, but in my mind this whole thing is so simple, why not simply apply the law objectively?". I mean god I don't even know where to start. Different types of fraud are going to have jurisdiction in different agencies. We fundamentally require different agencies because we have a federal and state legislature (and many other very good reasons) - so I guess if you want to remove states and "simplify" things, maybe you could start moving towards a single "fraud" construct? There's also expediency and practicality, but that's more nuanced and I feel like if I have to explain "there's a federal and a state government" we shouldn't jump into how a law is made. > But with the CFAA, it is. And we're supposed to be so pleased that now the prosecutors will be less draconian in making such judgments than they were before. Multiple things can be true. The CFAA is broad and shitty. Also, the legal system is not some simple thing where you can just "objectively" enforce the law, nor should it be. If you want to say "the CFAA is overly broad" ok, cool. If you want to say "this isn't a good thing because this is just a policy, not a change in the law", ok sure. But saying "We should have a singular objective definition of fraud" and acting like that's simple or achievable is plain naive, and this whole discretion argument almost feels irrelevant. At this point I don't think you even know what you're trying to say, I'm gonna disengage. I would suggest you disentangle your points since it seems like you're trying to say a lot of different things.
- pdonis 4y ago
  > The CFAA is broad and shitty. Good, then we're in agreement on my basic point: that the CFAA is bad law. That means the best way to fix the root problem with the CFAA is to repeal it because it's bad law, not try to patch it. As I have pointed out at various points in this overall thread, we already have laws against fraud. All we need to do is apply them to fraud committed using computers. We don't need a whole new set of laws just for fraud committed with computers. > At this point I don't think you even know what you're trying to say Sure I do. I just said it again above.

by pdonis 4y ago

staticassertion 4y ago

> They are legal judgments that in the end, if the case goes to trial, get made by juries. They are only "subjective" in that no person can truly see inside the mind of another, so everyone has to make their best judgment based on what they can see. It's really nuts to me that "legal" And "subjective" are concepts you're trying to draw a hard line between. Of course all legal judgments are subjective - that is both obviously inherent as well as being a desirable feature. Yes, you nailed it, the jury system does indeed require a judgment based on the information as it is presented to them... > Nobody even pretends that enforcement of speeding laws is a reasonable use of discretion on the part of law enforcement: enforcement is based on using such laws as a revenue source. I mean, how does this support your case? Speeding laws are extremely black and white, there's very little legal discretion, the discretion is in terms of enforcement ie: are you getting pulled over. But it's not like you sit in front of a jury and present the facts, it's much closer to what you seem to be advocating for - a system with less human intervention. > since fraud is already illegal, why should using a computer to commit fraud be any different from committing fraud some other way? Why not just enforce the laws we already have against fraud? For like a million reasons lol I feel like this is just "I have no idea how the legal system works, but in my mind this whole thing is so simple, why not simply apply the law objectively?". I mean god I don't even know where to start. Different types of fraud are going to have jurisdiction in different agencies. We fundamentally require different agencies because we have a federal and state legislature (and many other very good reasons) - so I guess if you want to remove states and "simplify" things, maybe you could start moving towards a single "fraud" construct? There's also expediency and practicality, but that's more nuanced and I feel like if I have to explain "there's a federal and a state government" we shouldn't jump into how a law is made. > But with the CFAA, it is. And we're supposed to be so pleased that now the prosecutors will be less draconian in making such judgments than they were before. Multiple things can be true. The CFAA is broad and shitty. Also, the legal system is not some simple thing where you can just "objectively" enforce the law, nor should it be. If you want to say "the CFAA is overly broad" ok, cool. If you want to say "this isn't a good thing because this is just a policy, not a change in the law", ok sure. But saying "We should have a singular objective definition of fraud" and acting like that's simple or achievable is plain naive, and this whole discretion argument almost feels irrelevant. At this point I don't think you even know what you're trying to say, I'm gonna disengage. I would suggest you disentangle your points since it seems like you're trying to say a lot of different things.

pdonis 4y ago
> The CFAA is broad and shitty. Good, then we're in agreement on my basic point: that the CFAA is bad law. That means the best way to fix the root problem with the CFAA is to repeal it because it's bad law, not try to patch it. As I have pointed out at various points in this overall thread, we already have laws against fraud. All we need to do is apply them to fraud committed using computers. We don't need a whole new set of laws just for fraud committed with computers. > At this point I don't think you even know what you're trying to say Sure I do. I just said it again above.