Those charged with the security of the United States of America from threat say that the threats are real, and they are doing what they have to do to save us from harm. And I believe them.  Not because I know anything more than anyone else, but because there has been harm and there are forces out there in the mist that do not look kindly upon my homeland.

So why then am I not an acolyte of Stewart Baker?  Because this is nothing more than a “belief,” something I choose to accept in the absence of evidence.  It’s faith. And faith only takes me so far.  The government occasionally reveals stories of its successes, but they tend to show less success and more manufacture of a success where no threat would exist if the government had kept its nose out of it.

On the other hand, there are far too many stories of harm happening to good people at the government’s hand in the name of protecting us, and these stories provide foundations that don’t require me to squint hard, cover my ears and merely believe. They allow me to know.  And what I know isn’t pleasant. Continue reading →

There are three players in the school to conviction pipeline: the school. The police. The judge.  When one of the three demonstrates some element of objectivity and reasonableness, issues that arise with regard to students’ conduct manage to get handled without absurd consequences. But when the trinity defers to each other, absurdity ensues, as it did at South Fayette High School.

The underlying story, only touched upon here and the full details of which are provided at the above link, was that a student with an intellectual disability was being bullied in class, and the school failed to address it. He decided to record a day in class for his mother, after which he brought to his principal, Scott Milburn.  The principal heard the audio recording and required him to delete it, then called in the police.

Principal Scott Milburn called South Fayette Township police Lieutenant Robert Kurta to the school to interrogate her son in the presence of Associate Principal Aaron Skrbin and Dean of Students Joseph Silhanek. The defendant testified before Judge McGraw-Desmet that he was forced to play the audio for the group and then delete it. Love says by the time she arrived at the school, her son was surrounded by school officials and the police officer and was visibly distraught. She says Principal Milburn advised her that her son was “facing felony wiretapping charges” because he made a recording in a place with an expectation of privacy, and that Officer Kurta agreed. Continue reading →

Victor Medina sent me an email from his Apple iToy questioning whether anyone would have the nerve to solicit a sex worker at the wage being offered for a lawyer “position” on Craig’s list:

Seeking Attorneys for online legal services (pay – $2 per minute)

So I pulled out my handy-dandy calculator and ran the numbers. That would be $120 per hour, which would bring a smile to many an indigent defenders face.  Is this a problem?  Well, perhaps the problem is that, aside from the 5 minute minimum (again, with the calculator, that would be $10), there is no assurance that anyone gets any more.

The business offering this windfall is called LawModo, which explains its purpose in this video: Continue reading →

In his on-going deconstruction of D. C. Magistrate Judge John Facciola’s order denying the government’s warrant to search all the emails of its target, Orin Kerr at WaPo Conspiracy takes the court’s Second Memorandum Opinion to task. The government lost again, for having done nothing more than switching some language from Exhibit A to B, cosmetic changes as the judge called it.

Judge Facciola’s new opinion reminds me of why I think it is necessary for such reasonableness issues to be litigated ex post in the context of adversarial litigation rather than announced ex ante in response to ex parte warrant applications. The reasonableness of executing the warrant is something that ordinarily would be analyzed ex post in the context of adversarial litigation.

In his first order, the judge strongly hinted that the better solution was to allow the keeper of the emails, in this case Apple, to search for the government, then turn over only those emails that were responsive to the government’s need for evidence. Or, the government could just knock down Apple’s door and raid the place, if the warrant is approved. Continue reading →

In breathtakingly short order, the Third Circuit has issued its decision in United States v. Andrew Auernheimer a/k/a Weev.  Weev won.  Tor Ekeland picked him up last night, just in time to audition for the next Hobbit movie.

And lest anyone think that the Weev has grown soft and contemplative in the can, his twits (no doubt by his friends in Weev’s name, since Weev was in prison at the time) show otherwise. Continue reading →

Yet again, marketing guru Seth Godin has managed to put into words one of the things that has long pissed me off but defied my ability to explain.

Lock in is what happens once you have a lot of followers on Twitter… it’s not easy to switch. Same with all social networks. And operating systems too–it takes a lot of hassle to walk away from iOS.

Once a company has achieved lock in, one way to grow is to appeal to those that haven’t been absorbed (yet), to change the product to make it appeal to people who need it to be simpler, dumber and less powerful, because (the company and its shareholders understand) the power of the network becomes ever more irresistible as it scales.

Forget, for a moment, that he uses Twitter as an example. It doesn’t matter. His point is that you create website/product/system A and it works. It gains traction. People like it, use it, enjoy it. Continue reading →

Following the tragic suicide of Rutgers student Tyler Clementi, the State of New Jersey did what so many advocates demand: pass a law. Deemed the “toughest” anti-bullying law in the nation, the applause could be heard loud and clear.  And as too often occurs, the zealous “do it for the children” folks knew that it would bring about a perfect world where no child’s feelings would ever be hurt again.

Lice.  Head lice, to be precise.

The Rutherford Institute is challenging New Jersey’s law because lice.  No child wants to be called a carrier of lice.  Except, maybe they are the carrier of lice.  From NJ.com:

John Whitehead, president of the Rutherford Institute, said the enforcement of the law is problematic. Schools should be safe, he said, but well-meaning statues “are Orwellian in nature and inevitably run afoul of the Constitution.”

“How far do you take this, especially with children,” he asked. “Free speech in some instances is hurtful.” Continue reading →

The New York Post, never shy when it comes to emotive headlines, spelled it out in a way that couldn’t help but make its readers’ blood boil at the ineffectiveness of the legal system to make sure the bad guys go down.

Judge tosses evidence in gun bust on warrant technicality

And if that’s not enough to make you wonder how law-abiding citizens can survive these crazy, criminal-loving judges, the story that follows will surely do the trick.

A Brooklyn federal judge has tossed critical evidence against a alleged crack-dealing Queens gang member busted with an assault rifle, throwing his case into turmoil, court records state.

Judge Jack Weinstein voided evidence against Shakeel “Blam” Wiggins last week because an NYPD cop didn’t properly fill out a search-warrant application that turned up the weapon as well as a handgun and a cocaine cache last September, court papers say.

The ruling will likely allow Wiggins, a prior felon, to walk. Continue reading →

Bob Ambrogi and J. Craig Williams did a Lawyer 2 Lawyer interview on Legal Talk Network with Lee Rowland of the ACLU and Marc Randazza on the propriety of using criminal laws to stop revenge porn.

In the second half, they bring Mary Anne Franks in to debate the issue.  It’s a fascinating juxtaposition of Appeal to Reason versus Appeal to Emotion. Guess who was on which side?

Best line of the broadcast was from Lee Rowland:  “Criminal law is a blunt instrument for regulating human dysfunction.”  As experience has taught us over and over.

Further, your affiant sayeth naught.

The peculiar case of Raphael Golb, and his sockpuppet defense of his father’s research on the dead sea scrolls has been the subject of a few posts already. And yet, oral argument before the New York Court of Appeals gives rise to another question worthy of note. It’s the case that keeps on giving.

Via Eugene Volokh at the WaPo Conspiracy (for as long as it remains public before hiding behind its paywall).

Here’s the quote from the transcript, or you can find it in the oral argument video:

JUDGE PIGOTT: So if … you get some college kid who write – – – who e-mails the girlfriend of his roommate saying, you know, he really is a useless person. Is that aggravated harassment with respect to the victim, boyfriend/roommate?

MR. RIVELLESE: Yes, because it’s got – – –

JUDGE PIGOTT: Really?

MR. RIVELLESE: It meets all the elements. It does not require that the person that you send the communication to is the same person that you intend to harass, annoy and alarm. It’s – – – Continue reading →