Author Archives: SHG

Rep. Jackie Speier Finally Reveals Her Scheme To Destroy The Internet (Update x2)

It’s been a very long time coming, with pronouncements as far back as 2014.

The war against “revenge porn” is about to enter Congress.

Rep. Jackie Speier, D-Calif., is preparing to introduce legislation to criminalize the non-consensual online dissemination of lewd content by jilted lovers and hackers, her office confirms to U.S. News.

Since then, crickets.  Until now. Given that it’s been years in the making, one might suspect that Speier would have come up with something really well-conceived, addressing the rampant unconstitutionality of what’s been proposed up to now. After all, there is only one reason, one, for the creation of a federal revenge porn crime. That is to overcome the safe harbor of Section 230 of the Communications Decency Act, that allowed the world wide web to exist.

Most websites hosting revenge porn, however, cannot be forced to remove the content because Section 230 of the federal Communications Decency Act grants Internet companies legal immunity if third-party content doesn’t violate federal copyright or criminal law. Continue reading

The Dangling Conversation

Nicholas Kristof characterized it as “white delusion” in his New York Times column.  He spoke of the view of white America about black America.

This complacency among us white Americans has been a historical constant. Even in the last decade, almost two-thirds of white Americans have said that blacks are treated fairly by the police, and four out of five whites have said that black children have the same chance as white kids of getting a good education. In short, the history of white Americans’ attitudes toward race has always been one of self-deception.

The balance of his column fails to support his thesis (saved you a click), essentially coming down to his preference for his delusion over other people’s delusion. But since Hillary Clinton says we need to have a conversation, alternatively called discussion, dialogue, pick whatever trendy word suits your fancy, in lieu of identifying specific problems and addressing them, it struck me as a good time to talk.

At ATL Redline, Elie Mystal went on a rant about the fact that a presidential candidate polled zero (as in zilch, zip, nada, none) support among black voters in Ohio and Pennsylvania. And the mainstream media (read, the white media) couldn’t be bothered to make note of it. Continue reading

Killer Robots, Useful, Cheap and Ubiquitous

In 1942, Isaac Asimov came up with the Three Laws of Robotics.

  1. A robot may not injure a human being or, through inaction, allow a human being to come to harm.
  2. A robot must obey the orders given it by human beings except where such orders would conflict with the First Law.
  3. A robot must protect its own existence as long as such protection does not conflict with the First or Second Laws.

In 2016, the Dallas police decided they didn’t really like the rules, so they sent a robot to execute a cop killer.  Most people are okay with the decision, since there isn’t a big fan club for Micah Johnson (though, that there is any fan club at all is rather remarkable). But even if the use of an execution robot seems okay this time, what about next time?

While the intelligentsia ponder the ethics of robots, factories are gearing up to turn their Roombas into killing machines. Oh come on. You didn’t see this coming? Continue reading

A Baby Step Forward In The Bronx (And Two Giant Steps Back)

A very pissed off public defender (not deputy, not assistant, but the big guy) asked yesterday whether the New York Times was as bad as it appeared to him. In his case, it was the omission of an entire branch of a story in order to extol the virtues of another branch, as if taking one little step, a part of the whole, was sufficient to solve a huge problem.

Yup. That’s my buddies at the Times. They have a narrative, and they’re not afraid to use it. In this instance, it was bad progressive problem (wrongfully convicted defendants), preferred hero (prosecutors) and simplistic piece of response as the miracle the fixed everything. They love the opportunity to extol the virtues of prosecutors, to virtue signal that they aren’t prosecution haters. They love to pretend solutions happen, because it’s heartwarming that our problems aren’t intractable and can be solved. Put the two together, shake, sing a rousing chorus of Kumbaya, and you have a great story.

Darcel Clark is the new Bronx District Attorney. She’s black. She’s female. The Times adores her demographic, and so there’s a story about how she’s going to save the Bronx from the perpetual disaster of delays, like the one that happened to Kalief Browder and tens of thousands of others. What’s the magic bullet? Continue reading

Reading While Black (or Booked)

So, a black male, sitting in his car, reading a book is suspicious activity. Good to know.

Louizandre Dauphin, 2016

No, the cop didn’t beat him. In fact, he was, by Dauphin’s description, “kind and respectful.” Then again, this happened in Canada, where people apologize after committing murder, so it’s hard to be sure what to make of that.

dauphin1

Aside from the pictures of Dauphin, which are simply spectacular, showing on the one hand that he looks like a pretty upstanding guy when he’s got on the uniform of “a small New Brunswick’s city’s director of parks, recreation and tourism.” Yep, that’s right. He’s one of them, an official guy, title and all.

And what was he doing when Dudley Do-Right approached? Continue reading

The 9th Circuit Crafts A Bright Line Test For The CFAA

After the 9th Circuit’s en banc ruling in United States v. Nosal (Nosal I), it appeared for a brief and shining moment that some clarity was being brought to the Computer Fraud and Abuse Act, that the court held that violating the terms of service did not elevate whatever private crap a website owner used into the foundation for a federal offense. But as so often happens, the clouds rolled in and obscured the sunlight.

“[W]ithout authorization” is an unambiguous, non-technical term that, given its plain and ordinary meaning, means accessing a protected computer without permission. This definition has a simple corollary: once authorization to access a computer has been affirmatively revoked, the user cannot sidestep the statute by going through the back door and accessing the computer through a third party. (Emphasis added.)

For an unambiguous, non-technical term, “without authorization” has caused the murder of a great many words in explanation. But there is some foreshadowing in there, perhaps not clearly noticed in Nosal II, but apparent now that the 9th Circuit has issued its decision in Facebook v. Power Ventures, which held that while no CFAA violation occurs based upon a violation of the terms of service per se, failure to abide by a cease and desist demand by the website owner based upon the violation gives rise to a violation of the CFAA.

In other words, violating TOS doesn’t make it a crime, but accessing a website after the owner has demanded you cease and desist does. Remember, “affirmatively revoked”?  Continue reading

Public Citizen Defends Chevron Deference

Public Citizen does some great work, and I have enormous respect for Paul Alan Levy, who has always been there for me and others who have been threatened for exercising their First Amendment rights.  So it came as something of a surprise to receive an email from Public Citizen about a separately named group called “Coalition for Sensible Safeguards.”

Coalition for Sensible Safeguards Calls on Lawmakers to Oppose Legislation That Seeks to End Chevron Deference

For those of you unfamiliar with Chevron deference, it comes from a Supreme Court decision that held courts must defer to the “expertise” of federal government agencies in interpreting their enabling statutes. In the educational agency arena, it’s referred to as Auer or Seminole Rock deference. Same deal, different case names.

Apparently, there is a move in Congress to enact legislation to do away with Chevron deference. Continue reading

Carl David Ceder: I Demand You Stop Making Me Cry!!!

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Carl David Ceder in happier days

While the internet doesn’t forget, it does fade from memory. But that’s not enough for some sad young lawyers, whose butt is still sore from a well-deserved beating they endured as a result of getting caught doing nasty things. Carl David Ceder still felt the pain.

And worse still, he paid good money to J.C. Penney for his promotional headshot, having to endure the mommies and daddies and their little rug rats crying as they awaited their first picture to send to grandma.  But Carl was stoic. He would gaze into the abyss and look lawyerish. No one could stop him from being the lawyer he pretended to be.

Then some mean, old lawyer from New York went and took his best baby lawyer promo pic and besmirched it. “This will not stand!”   Continue reading

Good Gun, Bad Gun

A guy walks into a bar in San Antonio with a gun strapped to his leg. The start of a funny joke? Nah. The start of a conundrum.  The guy has a right to open carry, a fundamental right according to the Supreme Court in Heller and McDonald,* and one that is widely accepted in Texas culture.

What does this mean? It means that it’s a perfectly lawful exercise of constitutional rights, until it’s not. It means that gun guy should not be subject to seizure and interrogation to prove to the satisfaction of police (or anxious observers) that he’s entitled to exercise his constitutional right to bear arms. It means that no one knows, until something bad happens, that the gun guy is a bad dude whose possession of a weapon crosses the line between an exercise of a constitutional right and the commission of a crime. It means that there is a conundrum.

The conundrum was obvious in Dallas.

The state has long been a bastion of pro-gun sentiment and the kind of place where both Democrats and Republicans openly talk about the guns they own and carry, on their person, in their vehicles, at their offices, at their homes and even in the halls of the Texas Capitol.

Continue reading

Whitewash And Blackwash: The False Equivalencies Of Tribes

It was interesting, if not surprising, to watch the twitter feed of ignorance following yesterday’s post about Deray Mckesson’s arrest in Baton Rouge.  There were the puny defensive retorts of people who hated Deray and sought any nit, no matter how wrong, to impugn him or justify his arrest. There were the emotional retorts that were devoid of meaning, but seemed important enough for someone to publish.

Neither tribe could bring themselves to rise above their prejudices. Not even for a day.

In the aftermath, there are the fingerpointers and rationalizers making the usual excuses. Then there are voices trying to accomplish the same goals, but wrapped in packages that make the unwary believe they are seeking unity when they remain stuck in their tribalism. They use softer, kinder words, but they still put their tribe in the right, and tacitly blame the other.

Charles Blow tells of a conversation with his daughter the morning after the Dallas killings.
Friday morning, after the Dallas shootings, my college student daughter entered my room before heading out to her summer job. She hugged me and said: “Dad, I’m scared. Are you scared?” We talked about what had happened in the preceding days, and I tried to allay her fears and soothe her anxiety.

How does a father answer such a question? I’m still not sure I got it precisely right. Continue reading

Desperately Seeking Shiny

Two new lawyers had a novel idea they wanted to try. And they did what most can’t be bothered to do. They asked first.

The Opinion was issued in response to this request by Stephanie Lynn Ramos and Miriam Lacroix, who at the time had just graduated law school and were looking for a way to fund a practice – initially conceived of as a non-profit – that would provide quality services to immigrants in need of competent legal representation.

Sure, it was only the New York State Bar Association, which has no authority to decide anything, but this was the only game in town to get an advisory opinion on the ethics of crowdsourcing the funding to start their law firm. And the NYSBA’s response was sound.

A law firm may engage in certain types of crowdfunding but not others.  Any form of fundraising that gives the investor an interest in a law firm or a share of its revenue would be prohibited.  However, in some circumstances a law firm may give the funding source some kind of reward. For example, a law firm may send a funder non-confidential memoranda discussing legal issues (provided the law firm complies with any applicable advertising rules), or may agree that the law firm will provide pro bono legal services to certain charitable organizations, provided that the lawyer complies with Rule 1.1 regarding competence and the representation does not involve conflicts in violation of Rule 1.7 or Rule 1.9.

Continue reading

The Message Of Arresting @Deray In Baton Rouge

Nick Selby is one of the cops who takes his life into his own hands by questioning the herd. Even though he may not always ask the same questions you or I might ask, we don’t have to worry about our backup pulling a Serpico when our life is on the line. Nick does, but he asks the questions anyway. For this, he deserves respect.

For me, though, the pride was over more than just those acts of bravery; it was over the commitment to professionalism, trust and respect by the Dallas police that will allow the department to be as levelheaded in the aftermath of the massacre as it was in the midst of it.

Friday morning, after our brothers were assassinated for being white and for being officers, the word was sent out: more protests are expected, and we must not interfere with them. And that is the way it should be.

This may not seem so bold to outsiders, but there are a lot of cops who will view the murders in Dallas differently, who will see Selby’s call for calm in the “aftermath of the massacre” as heresy. They are not as concerned about the right to protest as they are about the assassination of their “brothers.” Continue reading