more on 1st Circuit rules on Councilman

[David Farber <dave () farber net>]

Begin forwarded message:

From: Bob Frankston <Bob2-19-0501 () bobf frankston com>
Date: September 6, 2005 3:40:40 PM EDT
To: dave () farber net, ip () v2 listbox com
Cc: Dave Crocker <dhc2 () dcrocker net>
Subject: RE: [IP] 1st Circuit rules on Councilman


The legal system is fundamentally about trusting the larger society  
rather
than taking "the law" into our own hands and using weapons other the  
words
(and money).

The problem is that the fictions that allow us to accept the legal  
system
become stretched during transitions. It's even more problematic when we
have precedent vs science/engineering. I keep referring to the legal  
system
and its tendency to bifurcate babies and compromise on pi being 3.07.  
I do
find it strange speech using electronics is different from speech using
sound waves or wood pulp.

This is why I fear a Supreme Court that strictly interprets the US
Constitution -- it is a document in a context. The writers themselves  
were
struggling to come to terms with the new philosophical concepts of  
the day
and would have been surprised to see how well it has worked and probably
horrified that people took their words so literally.

Of course, loose interpretations can also be very dangerous ... but  
then is
the decision to extend Mickey forever loose or strict? I would like to
think there is privacy outside the confines of my house and that  
electronic
invasions are still invasions. I sense that extending privacy is  
precisely
the kind of "tampering" that today's administration abhors.

But then why should we expect human systems to change in less than a few
generations simply because our understanding of basic concepts changes
daily. It's been less then two centuries and evolution is still  
viewed as
heresy.


-----Original Message-----
From: David Farber [mailto:dave () farber net]
Sent: Tuesday, September 06, 2005 15:02
To: ip () v2 listbox com
Subject: [IP] 1st Circuit rules on Councilman



-----Original Message-----
From: "Dave Crocker"<dhc2 () dcrocker net>
Sent: 06/09/05 1:03:21 PM
To: "dave () farber net"<dave () farber net>
Cc: "ip () v2 listbox com"<ip () v2 listbox com>
Subject: Re: [IP] 1st Circuit rules on Councilman




>     It's remarkable, is it not, that the First Circuit en banc held
> that it's OK to convict someone criminally who is presumed to know  
> what
> the law requires, ...  This is just the latest
> example of a pernicious trend in federal criminal law - the ability  
> and
> willingness of prosecutors to prosecute, harass, and persecute  
> citizens
> and companies for violating utterly vague and/or overbroad federal
> criminal statutes and endless turgid regulations,


Dave.

I, too, found the latest appelate court decision remarkable.  I found it
remarkable that the lower reviews had bought any of the artificial, lame
arguments brought by Councilman.

Are we to believe that it is the slightist bit reasonable for a  
provider of
a general-purpose communication service to me to inspect the content of
messages -- without my knowledge, of course -- and to use that  
content to
competitive advantage?

What is apparently often missed in this debate is that the lower courts
were playing around with what the rest of us would call legal
technicalities, rather than the meat of the offense.

The latest decision put logic and legal games aside and focused on
reasonable expectations and reasonable interpretations of the law --  
and,
by the way, the intentions of those who wrote those laws.

The previous decisions worked in the detached vaccuum that can make the
legal process pure but destructive.  What is remarkable about the latest
decision is that it stayed in the real world.


   d/

  Dave Crocker
  Brandenburg InternetWorking
  +1.408.246.8253
  dcrocker  a t ...
  WE'VE MOVED to:  www.bbiw.net

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