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Fixing the worst law in technology

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Re: Fixing the worst law in technology

#11

Post by anigbrowl »

MartinCron wrote: post #5
infogulch wrote: post #3

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

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.

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.

Re: Fixing the worst law in technology

#13

Post by Retric »

derekp7 wrote: post #7
matt2000 wrote: post #6

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.

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.

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...

Re: Fixing the worst law in technology

#14

Post by danso »

anigbrowl wrote: post #9

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…

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.

Re: Fixing the worst law in technology

#15

Post by crusso »

anigbrowl wrote: post #11
MartinCron wrote: post #5

Earlier quoted context omitted.

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.

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 Con…

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/ver...

Re: Fixing the worst law in technology

#16

Post by usefulcat »

matt2000 wrote: post #6

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.

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.

Re: Fixing the worst law in technology

#18

Post by anigbrowl »

crusso wrote: post #15
anigbrowl wrote: post #11

Earlier quoted context omitted.

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 Con…

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/ver...

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.

Re: Fixing the worst law in technology

#20

Post by anigbrowl »

danso wrote: post #14
anigbrowl wrote: post #9

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…

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…

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.

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