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disorderlyvision
10-06-2009, 08:42 AM
http://online.wsj.com/article/SB10001424052748704471504574438900830760842.html


Laws have become too vague and the concept of intent has disappeared.

When we think about the pace of change in technology, it's usually to marvel at how computing power has become cheaper and faster or how many new digital ways we have to communicate. Unfortunately, this pace of change is increasingly clashing with some of the slower-moving parts of our culture.

Technology moves so quickly we can barely keep up, and our legal system moves so slowly it can't keep up with itself. By design, the law is built up over time by court decisions, statutes and regulations. Sometimes even criminal laws are left vague, to be defined case by case. Technology exacerbates the problem of laws so open and vague that they are hard to abide by, to the point that we have all become potential criminals.

Boston civil-liberties lawyer Harvey Silverglate calls his new book "Three Felonies a Day," referring to the number of crimes he estimates the average American now unwittingly commits because of vague laws. New technology adds its own complexity, making innocent activity potentially criminal.

Mr. Silverglate describes several cases in which prosecutors didn't understand or didn't want to understand technology. This problem is compounded by a trend that has accelerated since the 1980s for prosecutors to abandon the principle that there can't be a crime without criminal intent.

In 2001, a man named Bradford Councilman was charged in Massachusetts with violating the wiretap laws. He worked at a company that offered an online book-listing service and also acted as an Internet service provider to book dealers. As an ISP, the company routinely intercepted and copied emails as part of the process of shuttling them through the Web to recipients.

The federal wiretap laws, Mr. Silverglate writes, were "written before the dawn of the Internet, often amended, not always clear, and frequently lagging behind the whipcrack speed of technological change." Prosecutors chose to interpret the ISP role of momentarily copying messages as they made their way through the system as akin to impermissibly listening in on communications. The case went through several rounds of litigation, with no judge making the obvious point that this is how ISPs operate. After six years, a jury found Mr. Councilman not guilty.

Other misunderstandings of the Web criminalize the exercise of First Amendment rights. A Saudi student in Idaho was charged in 2003 with offering "material support" to terrorists. He had operated Web sites for a Muslim charity that focused on normal religious training, but was prosecuted on the theory that if a user followed enough links off his site, he would find violent, anti-American comments on other sites. The Internet is a series of links, so if there's liability for anything in an online chain, it would be hard to avoid prosecution.

Mr. Silverglate, a liberal who wrote a previous book taking the conservative position against political correctness on campuses, is a persistent, principled critic of overbroad statutes. This is a common problem in securities laws, which Congress leaves intentionally vague, encouraging regulators and prosecutors to try people even when the law is unclear. He reminds us of the long prosecution of Silicon Valley investment banker Frank Quattrone, which after five years resulted in a reversal of his criminal conviction on vague charges of obstruction of justice.

These miscarriages are avoidable. Under the English common law we inherited, a crime requires intent. This protection is disappearing in the U.S. As Mr. Silverglate writes, "Since the New Deal era, Congress has delegated to various administrative agencies the task of writing the regulations," even as "Congress has demonstrated a growing dysfunction in crafting legislation that can in fact be understood." Prosecutors identify defendants to go after instead of finding a law that was broken and figuring out who did it. Expect more such prosecutions as Washington adds regulations.

Sometimes legislators know when they make false distinctions based on technology. An "anti-cyberbullying" proposal is making its way through Congress, prompted by the tragic case of a 13-year-old girl driven to suicide by the mother of a neighbor posing as a teenage boy and posting abusive messages on MySpace. The law would prohibit using the Internet to "coerce, intimidate, harass, or cause substantial emotional distress to a person." Imagine a law that tried to apply this control of speech to letters, editorials or lobbying.

Mr. Silverglate, who will testify against the bill later this week, tells me he figures that "being emotionally distressed is just part of living in a free society." New technologies like the Web, he concludes, "scare legislators because they don't understand them and want to control them, even as they become a normal part of life."

In a complex world of new technologies, there is more need than ever for clear rules of the road. Americans should expect that a crime requires bad intent and also that Congress and prosecutors will try to create clarity, not uncertainty. Our legal system has a lot of catching up to do to work smoothly with the rest of our lives.

Anti Federalist
10-06-2009, 08:47 AM
Well, good to see a Boston lawyer agrees with with I have know for years: that you cannot go a day without breaking the law.

Gives some new ammo to defend against the morons who say: "well if you're not doing anything wrong what are you worried about?"

Elwar
10-06-2009, 09:15 AM
Some examples of laws we're breaking would have been nice.

Such as this classic article:

http://www.backwoodshome.com/columns/wolfe0106.html


Still think you’re not a criminal?

Really. So you’ve never: “forgotten” to report a little extra income on your 1040, built an addition on your house without a permit, driven without a seatbelt (the Supreme Court says cops can throw you in jail for that), given a glass of dinner wine to your 17-year-old, smoked a joint, disconnected a pollution control device on your car, cut a friend’s hair without a license, installed an “outlaw” toilet, carried a pocket knife with a blade longer-than-legal (bet you don’t even know what length is legal, do you?), been in a room where friends were talking about doing something illegal (conspiracy!), put a dollar in a football pool, patronized a prostitute, taken a tax deduction you really weren’t “entitled” to, lied to a bureaucrat, “willfully” failed to file, built a pipe-bomb just to watch it go boom, carried money with traces of cocaine on it (like some 82 percent of the paper money in circulation today), put prescription medicine into one of those little daily dispenser containers, given one of your own prescription pills to a sick friend (search Title 21 of the U.S. Code and just see if you can figure out exactly what you can and can’t do with that itty-bitty bottle of Zoloft or Prozac you depend on to help you survive this modern madness), owned chemicals that might be used in bomb making (like the bleach and ammonia bottles under your kitchen sink), transposed the digits of your Social Security Number on a government form, or driven in a car with someone who might have been transporting contraband. Ever?

Remember, these days you can be convicted of “conspiracy” for crimes you don’t even know about, or for buying legal items that might be used for illegal causes. Some acquaintance gets in trouble and needs to snitch on a friend to get his own sentence reduced — and you’re toast.

constituent
10-06-2009, 10:10 AM
wow, that's a very good article.

if you haven't, you should follow the link and read about the book.


important excerpt:


Prosecutors identify defendants to go after instead of finding a law that was broken and figuring out who did it. Expect more such prosecutions as Washington adds regulations.

cheapseats
10-07-2009, 05:44 PM
Spirit Of Law
7 October 2009


Spirit Of Law in America is unequivocally, unwholesomely and unapologetically Mercenary. One can guess -- rah rah, New World Order -- that it is similar throughout developed countries. Do as we say AND as we do. When one considers Development, I really do think that DEVELOPING INTO WHAT is a ball on which we are meant to continually train our sensibilities.

Gordon Covitz has an on-point opinion piece in the September 27 Wall Street Journal entitled, "You Commit Three Felonies A Day." It focuses on how leap-and-bound advances in technology compound the abiding twin problems, Vagueness and Slowness, that already infect and debilitate an embarrassingly infamous American Legal System.

http://online.wsj.com/article/SB10001424052748704471504574438900830760842.html

It's twue, it's twue.

Allow me to direct an interrogation-grade klieg light onto three fly-over points that, like middle children, are playing quietly within the article.

UNO: "This is a common problem in securities laws, which Congress leaves intentionally vague, encouraging regulators and prosecutors to try people even when the law is unclear."

DOS: "'Since the New Deal era, Congress has delegated to various administrative agencies the task of writing the regulations," even as "'Congress has demonstrated a growing dysfunction in crafting legislation that can in fact be understood.'" Prosecutors identify defendants to go after instead of finding a law that was broken and figuring out who did it."

TRES: "These miscarriages are avoidable."

Um, er, ah . . . B.ull S.hit, M.ore S.hit, P.iled high and Deep.

Which segues to a Truth that I like to mention whenever remotely germane to a conversation. AMERICA'S IVY LEAGUE UNIVERSITIES ARE CRANKING OUT A DISPROPORTIONATE NUMBER OF RATS.

Mercenary + Mean-Spirited = Double Trouble.

Anti Federalist
10-07-2009, 06:19 PM
Still think you’re not a criminal?

Really. So you’ve never: “forgotten” to report a little extra income on your 1040, built an addition on your house without a permit, driven without a seatbelt (the Supreme Court says cops can throw you in jail for that), given a glass of dinner wine to your 17-year-old, smoked a joint, disconnected a pollution control device on your car, cut a friend’s hair without a license, installed an “outlaw” toilet, carried a pocket knife with a blade longer-than-legal (bet you don’t even know what length is legal, do you?), been in a room where friends were talking about doing something illegal (conspiracy!), put a dollar in a football pool, patronized a prostitute, taken a tax deduction you really weren’t “entitled” to, lied to a bureaucrat, “willfully” failed to file, built a pipe-bomb just to watch it go boom, carried money with traces of cocaine on it (like some 82 percent of the paper money in circulation today), put prescription medicine into one of those little daily dispenser containers, given one of your own prescription pills to a sick friend (search Title 21 of the U.S. Code and just see if you can figure out exactly what you can and can’t do with that itty-bitty bottle of Zoloft or Prozac you depend on to help you survive this modern madness), owned chemicals that might be used in bomb making (like the bleach and ammonia bottles under your kitchen sink), transposed the digits of your Social Security Number on a government form, or driven in a car with someone who might have been transporting contraband. Ever?

Except for patronizing a prostitute...

phill4paul
10-07-2009, 06:33 PM
Still think you’re not a criminal?

Really. So you’ve never: “forgotten” to report a little extra income on your 1040, built an addition on your house without a permit, driven without a seatbelt (the Supreme Court says cops can throw you in jail for that), given a glass of dinner wine to your 17-year-old, smoked a joint, disconnected a pollution control device on your car, cut a friend’s hair without a license, installed an “outlaw” toilet, carried a pocket knife with a blade longer-than-legal (bet you don’t even know what length is legal, do you?), been in a room where friends were talking about doing something illegal (conspiracy!), put a dollar in a football pool, patronized a prostitute, taken a tax deduction you really weren’t “entitled” to, lied to a bureaucrat, “willfully” failed to file, built a pipe-bomb just to watch it go boom, carried money with traces of cocaine on it (like some 82 percent of the paper money in circulation today), put prescription medicine into one of those little daily dispenser containers, given one of your own prescription pills to a sick friend (search Title 21 of the U.S. Code and just see if you can figure out exactly what you can and can’t do with that itty-bitty bottle of Zoloft or Prozac you depend on to help you survive this modern madness), owned chemicals that might be used in bomb making (like the bleach and ammonia bottles under your kitchen sink), transposed the digits of your Social Security Number on a government form, or driven in a car with someone who might have been transporting contraband. Ever?

Verily I am a sinner.

mport1
10-07-2009, 06:36 PM
A great fact to bring up when you get the someone arguing "It's the law!" It doesn't matter if the law is moral or just, you must follow it because its the law and people who break it should face the punishment!

tangent4ronpaul
10-07-2009, 06:38 PM
Still think you’re not a criminal?

Really. So you’ve never: “forgotten” to report a little extra income on your 1040, built an addition on your house without a permit, driven without a seatbelt (the Supreme Court says cops can throw you in jail for that), given a glass of dinner wine to your 17-year-old, smoked a joint, disconnected a pollution control device on your car, cut a friend’s hair without a license, installed an “outlaw” toilet, carried a pocket knife with a blade longer-than-legal (bet you don’t even know what length is legal, do you?), been in a room where friends were talking about doing something illegal (conspiracy!), put a dollar in a football pool, patronized a prostitute, taken a tax deduction you really weren’t “entitled” to, lied to a bureaucrat, “willfully” failed to file, built a pipe-bomb just to watch it go boom, carried money with traces of cocaine on it (like some 82 percent of the paper money in circulation today), put prescription medicine into one of those little daily dispenser containers, given one of your own prescription pills to a sick friend (search Title 21 of the U.S. Code and just see if you can figure out exactly what you can and can’t do with that itty-bitty bottle of Zoloft or Prozac you depend on to help you survive this modern madness), owned chemicals that might be used in bomb making (like the bleach and ammonia bottles under your kitchen sink), transposed the digits of your Social Security Number on a government form, or driven in a car with someone who might have been transporting contraband. Ever?

yeah - lets not get into what I've done on that list...

well, 2 points - if it's illegal to cut someones hair, how come they sell hair cutting kits in Walmarts and drug stores? Ditto for daily pill containers...

Growing up we did "bowl cuts", and as older added a bit more skill. Never gave it a second thought. Now I'm not talking about hanging out a shingle and accepting money for it, but friends, family, roommates... They even have amateur books on how to cut hair at home.

How totally asinine!

-t

phill4paul
10-07-2009, 06:42 PM
A great fact to bring up when you get the someone arguing "It's the law!" It doesn't matter if the law is moral or just, you must follow it because its the law and people who break it should face the punishment!

Hehe, There is a law in N.C. that says you can be arrested for singing off key in public (archaic but still on the books supposedly). I am gonna have to look that one up.
I think I am going to have to go to the downtown square and sing off key. Then have a friend call the cops and insist that I am arrested.
Oh, this could be FUN!

tangent4ronpaul
10-07-2009, 07:00 PM
Hehe, There is a law in N.C. that says you can be arrested for singing off key in public (archaic but still on the books supposedly). I am gonna have to look that one up.
I think I am going to have to go to the downtown square and sing off key. Then have a friend call the cops and insist that I am arrested.
Oh, this could be FUN!

I guess you don't have a lot of kerioki(sp?) in NC :D

taking that hair cutting example to it's logical, that would mean it's illegal to trim your own bear, or shave. Bet that would go over REAL WELL!

personally, I'm sure a lot of these laws are ignored, if they are known at all.

-t

phill4paul
10-07-2009, 07:07 PM
I guess you don't have a lot of kerioki(sp?) in NC :D

taking that hair cutting example to it's logical, that would mean it's illegal to trim your own bear, or shave. Bet that would go over REAL WELL!

personally, I'm sure a lot of these laws are ignored, if they are known at all.

-t

Wow, what an even better idea to call cops to a karaoke bar! Then I wouldn't have to be arrested. I could force them to arrest everyone on my video tape. Now that would piss off some "law abiding 'mericans". :D

As far as the haircutting law I don't think it would apply personally. Nor do I think it applies if you do it for free. I believe that one states accepting gain for cutting hair. Like if I gave you a beer to give me a bowl cut.:)

John F Kennedy III
06-11-2012, 05:19 PM
bump

paulbot24
06-11-2012, 06:07 PM
There are some strange knife laws on the books to be sure. I found myself on a website not long ago that listed various knife laws by state and some of the "obscure" ones. One state, I can't remember which one, said it is legal to conceal your knife, however, "if there are hostilities with three or more adults involved" or either party could be perceived to be acting in "a threatening manner" at that point you legally must declare that you have a concealed knife and it is a crime to keep it concealed. So in effect, you are legally obligated to pull out the knife and declare it to a group of guys if there are "hostilities." I always considered a knife as a last resort, like an "In case of unwarranted harrassment and very likely beating by group of assholes, pull out knife, but remember, you still don't REALLY want to have to use it" kind of thing. Yet another thing to tack onto the list if you are unlucky enough to find yourself in a situation involving thugs and cops.