7 ms·

Fixing the worst law in technology

66 points by mitmads 14y ago

kylelibra 14y ago
Good to see positive change come from tragedy.
infogulch 14y ago
'... President Obama ... the ultimate enforcer of the law' Um what?
- geebee 14y ago
  referring to the US President as head of the executive branch of government.
- MartinCron 14y ago
  That's the role of the executive branch, and President Obama is the head of the executive branch. It's weird to see it phrased that way, but it's not incorrect.
  - anigbrowl 14y ago
    Yes, but he can't just rewrite the law by making a speech, as the author suggests. He's charged with the faithful execution of the laws, not their interpretation. If you read court decisions where a law is criticized by a judge or justice as unjust or unfair (but not necessarily unconstitutional), they never say that prosecutors should stop bringing such cases to court; they say that changing the law will require Congress to act. To take a current example of the dichotomy, the Obama administration has filed a brief with the Supreme Court asking it to overturn DOMA (Defense of Marriage Act), as it's the administration's belief that the law is unconstitutional - but in the meantime, the administration is still implementing DOMA as written, because until the SC rules against it (if they do) it remains the law of the land. If two married gay people file a joint tax return, the IRS will send it back with an apologetic letter and tell them they have to file separately and so on.
    - crusso 14y ago
      Not sure if you pulled your example from the politifact article, which was the top Google hit on "enforcing doma", or not... but it also mentions specific examples of where DOMA is NOT enforced because the administration has decided it has more authority than is Constitutionally and legislatively prescribed. http://www.politifact.com/florida/statements/2012/apr/09/vern-buchanan/vern-buchanan-says-obama-will-no-longer-enforce/ http://www.politifact.com/florida/statements/2012/apr/09/ver...
      - anigbrowl 14y ago
        I hadn't read that. However, in the counter-examples given, which all involve immigration, the AG is using his explicit statutory discretion to halt or defer proceedings on individual cases.
    - betterunix 14y ago
      "He's charged with the faithful execution of the laws, not their interpretation." In practice, though, the executive can pick and choose enforcement priorities. Case in point: the DEA ramped up the effort against medical marijuana in California after the Obama administration made a deal with the pharmaceutical lobby, to win support for the Affordable Care Act. Within two years, the Obama administration's DEA had raided more medical marijuana dispensaries than the previous administration had in all eight years. Virginia recently overturned its law that forbade unmarried opposite-sex couples from living together. Nobody had been prosecuted under that law in many years (at least not as far as anyone knows), and only one person had been threatened with prosecution. The police in Virginia certainly know that unmarried couples are living together and having sex with each other; they just have other laws they are busy enforcing. The idea that the law must be enforced without any exceptions or leniency is the sort of far-right, law-and-order thinking that has turned America into the world leader in imprisonment.
      - anigbrowl 14y ago
        Do please cite evidence for this claim about the Affordable Care Act. I've been a long-time advocate for MMJ and have lobbied for it in front of county lawmakers, and I don't find this very credible. Also, your claim implicitly assumes that the number of dispensaries was static, when it was anything but. Your misrepresenting my position on law enforcement; I pointed out a critical logical flaw in the OP, which is the idea that the rule of lenity applies to law enforcement. It is a specifically judicial concept.
- Semiapies 14y ago
  http://www.usa.gov/Agencies/Federal/Executive.shtml http://www.usa.gov/Agencies/Federal/Executive.shtml
matt2000 14y ago
Perhaps we should make a site who's terms of service explicitly bars use by members of congress. Once some member of congress goes to the site, we try to get them put in jail, at which point they'll change the law.
- derekp7 14y ago
  Good idea, but I don't think it is possible for a private citizen to bring a prosecution. You could report it as a crime to the local police / FBI, but then they would probably file charges against you for wasting their time.
  - jpd750 14y ago
    Sad, but true. This is just outrageous.
  - Retric 14y ago
    It's all in how you approach it. If your goal is change then the press is your best option. So, send a vary nicely worded letter to the FBI and the press along with a video and logs and the FBI will simply add you to a few watch lists...
  - dclowd9901 14y ago
    The law is broad enough that any unauthorized access (even apparently toward private companies) constitutes breakage. I don't see how it would be any different in this case.
- usefulcat 14y ago
  Rather than starting a new site, it might be better to find an existing sympathetic and preferably well-established site and persuade them to add such language to their TOS.
- lukifer 14y ago
  Interesting idea. Another approach could be an "I'm Spartacus" strategy: a site with a one-click tool to automatically "hack" some willing participant, and then daring prosecutors to try to charge thousands of end users at once. In reality, though, either strategy misses the grander problem, which is not about the letter of the law, but about selective prosecution that dehumanizes arbitrary victims for the purposes of career advancement, personal grudges, and maintaining bureaucratic budgets.
gz5 14y ago
The law of any overly generalized and overly complex law: the law is no good. Don't try to repair it. Rip it out and establish clear, concise, use-case specific laws, when necessary.
anigbrowl 14y ago
Good god, this is stupid. The damage was trivial, yet he is threatened with two hundred and fifty thousand dollars in damages and up to twenty-five years in prison. Really? The prosecutor is seeking the maximum statutory penalty for this? Somehow I doubt that. All the Administration needs to do is to rely on the ancient common-law principle called the “rule of lenity.” This states that ambiguous criminal laws should be construed in favor of a defendant. BY A COURT. The rule of lenity is something that is supposed to guide the behavior of judges. This is lousy journalism, which misleads the audience in an attempt to pander to their sensibilities. There is no way the author of this piece ran it past a lawyer.
- danso 14y ago
  Well, most of my legal knowledge comes from watching The Wire, but I think you're too critical of the OP's point, though he obviously could've stated them clearer: > Really? The prosecutor is seeking the maximum statutory penalty for this? Somehow I doubt that. The penalties listed are what's defined in the statutes. Keep in mind that the case at hand was just revealed. The prosecutors won't be saying what penalties they seek until the bargaining and sentencing phase. > 2. BY A COURT. The rule of lenity is something that is supposed to guide the behavior of judges. You're correct that this is a guideline for judges. But the OP is apparently referring to "the rule of lenity" in how 13 federal judges so far have rejected the DOJ's interpretation of the CFAA. To the OP, this is proof that the law is so vague that it needs to be changed, or else "the rule of lenity" will constantly be invoked.
  - anigbrowl 14y ago
    OK, but any journalist writing on legal matters should know that the statutory maximum is not a good guide to the likely sentence in the event of a conviction. To mention the statutory maximum without any qualification is sensationalism masquerading as cold fact. By that standard I could say 'X has been arrested for littering - he could face the death penalty!!' Well, it's possible - until X has been charged with something specific, who am I to say he won't get hit with a capital murder charge or somesuch? I don't agree with you about the how the OP is using the rule of lenity. He specifically says the executive needs to change its enforcement on that basis, whereas changing the law is something that would be done by Congress. If he can't say what he means then he has no business reporting on legal topics.
michaelfeathers 14y ago
That law is pretty bad, but I wonder whether it is the worst law in technology. Can anyone think of a contender?
- svantana 14y ago
  The Mickey Mouse Act springs to mind... http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act
  - AnthonyMouse 14y ago
    DMCA 1201 is definitely on the short list too. But I don't think either of them is strictly as bad as the CFAA. At least with the DMCA you have some general idea when you might be violating it. Nobody even really even seems to know exactly what the CFAA prohibits, and even the narrow readings make felonies out of stuff that really ought not to be that serious.
- deleted 14y ago
  [deleted]
gmcrews 14y ago
The author of the article has overlooked something ancient and obvious. Jury nullification (http://en.wikipedia.org/wiki/Jury_nullification http://en.wikipedia.org/wiki/Jury_nullification) is exactly for laws such as this one. It's been part of English-based common law for many centuries. If the Swartz case had reached trial and I had been a juror, the chances of me nullifying the "worst law in technology" would have been near 100%. I'm sure most of us feel the same way. If I'm right, the problem is not as bad as the author makes it seem.
jessaustin 14y ago
Does Matthew Keys deserve to mentioned alongside Aaron Swartz? Swartz's actions seem somehow more... noble. Both of them "abused" their access, but Swartz did so to make a political point about scientific knowledge, in the hopes of improving our society. I can't discern what Keys's motivations were in this case. It's possible however that this makes Keys a "better" defendant, in that the law is clearly unjust even in his case.

66 points by mitmads 14y ago

kylelibra 14y ago

Good to see positive change come from tragedy.

infogulch 14y ago

'... President Obama ... the ultimate enforcer of the law' Um what?

geebee 14y ago
referring to the US President as head of the executive branch of government.
MartinCron 14y ago
That's the role of the executive branch, and President Obama is the head of the executive branch. It's weird to see it phrased that way, but it's not incorrect.
- anigbrowl 14y ago
  Yes, but he can't just rewrite the law by making a speech, as the author suggests. He's charged with the faithful execution of the laws, not their interpretation. If you read court decisions where a law is criticized by a judge or justice as unjust or unfair (but not necessarily unconstitutional), they never say that prosecutors should stop bringing such cases to court; they say that changing the law will require Congress to act. To take a current example of the dichotomy, the Obama administration has filed a brief with the Supreme Court asking it to overturn DOMA (Defense of Marriage Act), as it's the administration's belief that the law is unconstitutional - but in the meantime, the administration is still implementing DOMA as written, because until the SC rules against it (if they do) it remains the law of the land. If two married gay people file a joint tax return, the IRS will send it back with an apologetic letter and tell them they have to file separately and so on.
  - crusso 14y ago
    Not sure if you pulled your example from the politifact article, which was the top Google hit on "enforcing doma", or not... but it also mentions specific examples of where DOMA is NOT enforced because the administration has decided it has more authority than is Constitutionally and legislatively prescribed. http://www.politifact.com/florida/statements/2012/apr/09/vern-buchanan/vern-buchanan-says-obama-will-no-longer-enforce/ http://www.politifact.com/florida/statements/2012/apr/09/ver...
    - anigbrowl 14y ago
      I hadn't read that. However, in the counter-examples given, which all involve immigration, the AG is using his explicit statutory discretion to halt or defer proceedings on individual cases.
  - betterunix 14y ago
    "He's charged with the faithful execution of the laws, not their interpretation." In practice, though, the executive can pick and choose enforcement priorities. Case in point: the DEA ramped up the effort against medical marijuana in California after the Obama administration made a deal with the pharmaceutical lobby, to win support for the Affordable Care Act. Within two years, the Obama administration's DEA had raided more medical marijuana dispensaries than the previous administration had in all eight years. Virginia recently overturned its law that forbade unmarried opposite-sex couples from living together. Nobody had been prosecuted under that law in many years (at least not as far as anyone knows), and only one person had been threatened with prosecution. The police in Virginia certainly know that unmarried couples are living together and having sex with each other; they just have other laws they are busy enforcing. The idea that the law must be enforced without any exceptions or leniency is the sort of far-right, law-and-order thinking that has turned America into the world leader in imprisonment.
    - anigbrowl 14y ago
      Do please cite evidence for this claim about the Affordable Care Act. I've been a long-time advocate for MMJ and have lobbied for it in front of county lawmakers, and I don't find this very credible. Also, your claim implicitly assumes that the number of dispensaries was static, when it was anything but. Your misrepresenting my position on law enforcement; I pointed out a critical logical flaw in the OP, which is the idea that the rule of lenity applies to law enforcement. It is a specifically judicial concept.
Semiapies 14y ago
http://www.usa.gov/Agencies/Federal/Executive.shtml http://www.usa.gov/Agencies/Federal/Executive.shtml

matt2000 14y ago

Perhaps we should make a site who's terms of service explicitly bars use by members of congress. Once some member of congress goes to the site, we try to get them put in jail, at which point they'll change the law.

derekp7 14y ago
Good idea, but I don't think it is possible for a private citizen to bring a prosecution. You could report it as a crime to the local police / FBI, but then they would probably file charges against you for wasting their time.
- jpd750 14y ago
  Sad, but true. This is just outrageous.
- Retric 14y ago
  It's all in how you approach it. If your goal is change then the press is your best option. So, send a vary nicely worded letter to the FBI and the press along with a video and logs and the FBI will simply add you to a few watch lists...
- dclowd9901 14y ago
  The law is broad enough that any unauthorized access (even apparently toward private companies) constitutes breakage. I don't see how it would be any different in this case.
usefulcat 14y ago
Rather than starting a new site, it might be better to find an existing sympathetic and preferably well-established site and persuade them to add such language to their TOS.
lukifer 14y ago
Interesting idea. Another approach could be an "I'm Spartacus" strategy: a site with a one-click tool to automatically "hack" some willing participant, and then daring prosecutors to try to charge thousands of end users at once. In reality, though, either strategy misses the grander problem, which is not about the letter of the law, but about selective prosecution that dehumanizes arbitrary victims for the purposes of career advancement, personal grudges, and maintaining bureaucratic budgets.

gz5 14y ago

The law of any overly generalized and overly complex law: the law is no good. Don't try to repair it. Rip it out and establish clear, concise, use-case specific laws, when necessary.

anigbrowl 14y ago

Good god, this is stupid. The damage was trivial, yet he is threatened with two hundred and fifty thousand dollars in damages and up to twenty-five years in prison. Really? The prosecutor is seeking the maximum statutory penalty for this? Somehow I doubt that. All the Administration needs to do is to rely on the ancient common-law principle called the “rule of lenity.” This states that ambiguous criminal laws should be construed in favor of a defendant. BY A COURT. The rule of lenity is something that is supposed to guide the behavior of judges. This is lousy journalism, which misleads the audience in an attempt to pander to their sensibilities. There is no way the author of this piece ran it past a lawyer.

danso 14y ago
Well, most of my legal knowledge comes from watching The Wire, but I think you're too critical of the OP's point, though he obviously could've stated them clearer: > Really? The prosecutor is seeking the maximum statutory penalty for this? Somehow I doubt that. The penalties listed are what's defined in the statutes. Keep in mind that the case at hand was just revealed. The prosecutors won't be saying what penalties they seek until the bargaining and sentencing phase. > 2. BY A COURT. The rule of lenity is something that is supposed to guide the behavior of judges. You're correct that this is a guideline for judges. But the OP is apparently referring to "the rule of lenity" in how 13 federal judges so far have rejected the DOJ's interpretation of the CFAA. To the OP, this is proof that the law is so vague that it needs to be changed, or else "the rule of lenity" will constantly be invoked.
- anigbrowl 14y ago
  OK, but any journalist writing on legal matters should know that the statutory maximum is not a good guide to the likely sentence in the event of a conviction. To mention the statutory maximum without any qualification is sensationalism masquerading as cold fact. By that standard I could say 'X has been arrested for littering - he could face the death penalty!!' Well, it's possible - until X has been charged with something specific, who am I to say he won't get hit with a capital murder charge or somesuch? I don't agree with you about the how the OP is using the rule of lenity. He specifically says the executive needs to change its enforcement on that basis, whereas changing the law is something that would be done by Congress. If he can't say what he means then he has no business reporting on legal topics.

michaelfeathers 14y ago

That law is pretty bad, but I wonder whether it is the worst law in technology. Can anyone think of a contender?

svantana 14y ago
The Mickey Mouse Act springs to mind... http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act
- AnthonyMouse 14y ago
  DMCA 1201 is definitely on the short list too. But I don't think either of them is strictly as bad as the CFAA. At least with the DMCA you have some general idea when you might be violating it. Nobody even really even seems to know exactly what the CFAA prohibits, and even the narrow readings make felonies out of stuff that really ought not to be that serious.
deleted 14y ago
[deleted]

gmcrews 14y ago

The author of the article has overlooked something ancient and obvious. Jury nullification (http://en.wikipedia.org/wiki/Jury_nullification http://en.wikipedia.org/wiki/Jury_nullification) is exactly for laws such as this one. It's been part of English-based common law for many centuries. If the Swartz case had reached trial and I had been a juror, the chances of me nullifying the "worst law in technology" would have been near 100%. I'm sure most of us feel the same way. If I'm right, the problem is not as bad as the author makes it seem.

jessaustin 14y ago

Does Matthew Keys deserve to mentioned alongside Aaron Swartz? Swartz's actions seem somehow more... noble. Both of them "abused" their access, but Swartz did so to make a political point about scientific knowledge, in the hopes of improving our society. I can't discern what Keys's motivations were in this case. It's possible however that this makes Keys a "better" defendant, in that the law is clearly unjust even in his case.