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Fixing the worst law in technology

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Re: Fixing the worst law in technology

#31

Post by AnthonyMouse »

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.

>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.

The reason this sort of scheme never works is called prosecutorial discretion. If your purpose is to show how the law is an absurdity then prosecutors who see through you can choose not to prosecute in that case because they don't want to enable you to change a law they want to stay the way it is.

Overtly breaking the law doesn't get the law changed, it just makes the law unenforceable in most cases. Look at what happened with all the people printing DeCSS on t-shirts -- I'm not aware of any of them actually being convicted of violating the DMCA. The fact that the code was so widely distributed meant that it could never be suppressed and anyone (i.e. any pirate) who lives outside the law has ready access to it, but the law is still sitting there on the books screwing over the people who won't risk prosecution, who then can't make innovative products that would otherwise have to interact with DRM.

Having the law stay on the books but never be enforced (or never enforced against "good" actions) is a totally unreasonable outcome. Because plenty of people will be deterred from doing "good" things as a result of the possibility of being prosecuted, even if it doesn't happen in practice. The law actually has to be changed, either in Congress or in the courts.

Re: Fixing the worst law in technology

#32

Post by anigbrowl »

pessimizer wrote: post #30
anigbrowl wrote: post #29

Earlier quoted context omitted.

No. I said arrested for littering. Until a person is charged, they could conceivably be charged with a much more serious offense. My point is that it would be sensationalist and wildly misleading to focus on that angle, just as it is sensationalist and wildly misleading to focus on the statutory maximum sentence for a particular crime while ignoring the fact that it is almost never applied.

So stating the uncontroversial recorded range of penalties for a particular charge is sensationalist and wildly misleading, and making up a "realistic" number is the proper function of journalism? Before the charges came down, I would've thought the realistic number was 30 days of probation or maybe 20 hours of community service. Of course, that number would have said more about me than about reality. I prefer my rep…

They're not stating the recorded range of penalties, they're stating the maximum possible penalty while omitting the rather crucial fact that this is hardly ever administered. They don't have to make anything up, just look at the public record of penalties actually applied.

As I pointed out in another message in this thread, your estimate would be the realistic number, because most petty offenders under the CFAA do get probation.

Re: Fixing the worst law in technology

#33

Post by betterunix »

anigbrowl wrote: post #20
danso wrote: post #14

Earlier quoted context omitted.

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 som…

"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"

It is, however, frequently used to intimidate people into giving up their rights. There is a reason that more people go to prison each year than could possibly be sentenced by a jury of their peers, and the maximum penalties allowed by the law is one of them. Let's put it this way: the four men in Norfolk who pled guilty to a rape and murder they were entirely innocent of did not do so because they were insane; they were simply terrified of the possibility that they might be executed (and the exhaustion of many hours of berating by the police did not help).

Re: Fixing the worst law in technology

#34

Post by betterunix »

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…

"He's charged with the faithful execution of the laws, not their interpretation."

In practice, though, the executive can pick and choose enforcement priorities. Case in point: the DEA ramped up the effort against medical marijuana in California after the Obama administration made a deal with the pharmaceutical lobby, to win support for the Affordable Care Act. Within two years, the Obama administration's DEA had raided more medical marijuana dispensaries than the previous administration had in all eight years.

Virginia recently overturned its law that forbade unmarried opposite-sex couples from living together. Nobody had been prosecuted under that law in many years (at least not as far as anyone knows), and only one person had been threatened with prosecution. The police in Virginia certainly know that unmarried couples are living together and having sex with each other; they just have other laws they are busy enforcing.

The idea that the law must be enforced without any exceptions or leniency is the sort of far-right, law-and-order thinking that has turned America into the world leader in imprisonment.

Re: Fixing the worst law in technology

#35

Post by nitrogen »

anigbrowl wrote: post #28
AnthonyMouse wrote: post #25

Earlier quoted context omitted.

>To mention the statutory maximum without any qualification is sensationalism masquerading as cold fact. If may be misleading, but strictly speaking it's factually accurate. That is the maximum penalty -- and as long as it is, people who don't like it are going to report it. If you want them to stop, amend the law so that minor offenses don't fall under the same section as major offenses. For a law to carry felony pe…

They're only reporting half the story . I don't want them to stop reporting the maximum penalty, I want them to put it in its factual context. But most won't, because if they said 'the statutory maximum is 25 years but most convictions draw sentences of less than 5 years,' people would not think it's that big of a deal. As a matter of fact, the mean sentence under the CFAA (as of 2008 EDIT: typo. This is as of 2000.)…

But most won't, because if they said 'the statutory maximum is 25 years but most convictions draw sentences of less than 5 years,' people would not think it's that big of a deal.

Listing only the maximum is a good thing because phrasing the range of penalties as you suggest is a variant of the "Door in the Face" technique. In absolute terms, 5 years may seem incomprehensibly ridiculous for what amounts to digital graffiti, but when readers are skimming through an article they'll see "5 out of 25" and think, "How generous of the prosecutors to knock off 80% of the sentence!" This is not the desired outcome.

Re: Fixing the worst law in technology

#36

Post by AnthonyMouse »

anigbrowl wrote: post #28
AnthonyMouse wrote: post #25

Earlier quoted context omitted.

>To mention the statutory maximum without any qualification is sensationalism masquerading as cold fact. If may be misleading, but strictly speaking it's factually accurate. That is the maximum penalty -- and as long as it is, people who don't like it are going to report it. If you want them to stop, amend the law so that minor offenses don't fall under the same section as major offenses. For a law to carry felony pe…

They're only reporting half the story . I don't want them to stop reporting the maximum penalty, I want them to put it in its factual context. But most won't, because if they said 'the statutory maximum is 25 years but most convictions draw sentences of less than 5 years,' people would not think it's that big of a deal. As a matter of fact, the mean sentence under the CFAA (as of 2008 EDIT: typo. This is as of 2000.)…

>if they said 'the statutory maximum is 25 years but most convictions draw sentences of less than 5 years,' people would not think it's that big of a deal.

I imagine people convicted of manslaughter also don't typically serve anything like the statutory maximum. But we calibrate our expectations and sense of proportionality based on the maximum because that's the number that gets published and compared to penalties for other offenses, and actual sentences are often set in proportion to the maximum, so changing the maximum has the practical consequence of changing the result in typical cases.

>As a matter of fact, the mean sentence under the CFAA (as of 2008) is only 6.8 months.

If you get convicted of a felony and sentenced to probation, you still get a felony record. I don't think we should be making felons out of people who have done something that deserves to be punished only with probation. The maximum penalty is extremely relevant because that's what makes it a felony, even if it bears little resemblance to what happens in the typical case.

>It's a bit pointless demanding reform of the law without any context for how it is actually working in the real world.

By the real world you mean the court system, but what about the real real world? The maximum is what you read in the statute when you're trying to decide whether to break an unclear law for a good reason. It probably has more influence on the behavior of people in the real world than the unpublicized actual outcomes do.

Re: Fixing the worst law in technology

#37

Post by danso »

anigbrowl wrote: post #29
pessimizer wrote: post #27

Earlier quoted context omitted.

The death penalty is the maximum statutory penalty for littering?

No. I said arrested for littering. Until a person is charged, they could conceivably be charged with a much more serious offense. My point is that it would be sensationalist and wildly misleading to focus on that angle, just as it is sensationalist and wildly misleading to focus on the statutory maximum sentence for a particular crime while ignoring the fact that it is almost never applied.

Yes, but in both scenarios the OP refers to -- Aaron Swartz's and Matthew Keys's -- indictments have already been handed down by a federal grand jury, so it's unlikely the charges will get worse.

Second, you're imposing an unrealistic burden upon reporters. The OP in this case is simply stating the facts: that the charges that Keys faces have a sky-high penalty -- which is not the case for littering, to use our example. For the OP to also say, "but most likely, Keys won't face the full penalty and he may even get a slap on the wrist," the OP has to predict the future or have foreknowledge of these factors:

* How guilty Keys actually is

* The current and near-future caseload of the prosecutor

* How strong the case is

* How likely it is that Keys will be the type to plea bargain

* Whether or not there's the possibility that Keys will turn state's evidence, which would essentially nullify any punishment.

Such a thorough exploration would make for an interesting article, maybe, but that was never the OP's intention. The OP is merely pointing out what a sloppy statue the CFAA is. What happens as a matter of judicial procedure is only a tangent.

Re: Fixing the worst law in technology

#38

Post by anigbrowl »

betterunix wrote: post #34
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…

"He's charged with the faithful execution of the laws, not their interpretation." In practice, though, the executive can pick and choose enforcement priorities. Case in point: the DEA ramped up the effort against medical marijuana in California after the Obama administration made a deal with the pharmaceutical lobby, to win support for the Affordable Care Act. Within two years, the Obama administration's DEA had raid…

Do please cite evidence for this claim about the Affordable Care Act. I've been a long-time advocate for MMJ and have lobbied for it in front of county lawmakers, and I don't find this very credible. Also, your claim implicitly assumes that the number of dispensaries was static, when it was anything but.

Your misrepresenting my position on law enforcement; I pointed out a critical logical flaw in the OP, which is the idea that the rule of lenity applies to law enforcement. It is a specifically judicial concept.

Re: Fixing the worst law in technology

#39

Post by anigbrowl »

AnthonyMouse wrote: post #36
anigbrowl wrote: post #28

Earlier quoted context omitted.

They're only reporting half the story . I don't want them to stop reporting the maximum penalty, I want them to put it in its factual context. But most won't, because if they said 'the statutory maximum is 25 years but most convictions draw sentences of less than 5 years,' people would not think it's that big of a deal. As a matter of fact, the mean sentence under the CFAA (as of 2008 EDIT: typo. This is as of 2000.)…

>if they said 'the statutory maximum is 25 years but most convictions draw sentences of less than 5 years,' people would not think it's that big of a deal. I imagine people convicted of manslaughter also don't typically serve anything like the statutory maximum. But we calibrate our expectations and sense of proportionality based on the maximum because that's the number that gets published and compared to penalties f…

But we calibrate our expectations and sense of proportionality based on the maximum because that's the number that gets published

Well, this is the problem - it's often the only number that gets published, because it makes for a better story than qualifying that sensational number with the rather less exciting reality of sentences administered.

You can't go complaining about the length of the maximum sentence and then waving aside the much lower sentences that are actually handed out as if they didn't matter.

I don't think we should be making felons out of people who have done something that deserves to be punished only with probation.

We're not, generally. Not every offense prosecuted under CFAA is a felony; in many cases defendants are charged with a misdemeanor instead. This was mentioned int he link I gave you earlier, and it's treated in much more detail here: http://www.justice.gov/criminal/cybercrime/docs/ccmanual.pdf

This is why I'm grumbling about the inaccuracy in reporting. You see the big maximum sentence as if it were the only thing that mattered, and you develop a really inaccurate idea of the law as a result.

Re: Fixing the worst law in technology

#40

Post by anigbrowl »

nitrogen wrote: post #35
anigbrowl wrote: post #28

Earlier quoted context omitted.

They're only reporting half the story . I don't want them to stop reporting the maximum penalty, I want them to put it in its factual context. But most won't, because if they said 'the statutory maximum is 25 years but most convictions draw sentences of less than 5 years,' people would not think it's that big of a deal. As a matter of fact, the mean sentence under the CFAA (as of 2008 EDIT: typo. This is as of 2000.)…

But most won't, because if they said 'the statutory maximum is 25 years but most convictions draw sentences of less than 5 years,' people would not think it's that big of a deal. Listing only the maximum is a good thing because phrasing the range of penalties as you suggest is a variant of the "Door in the Face" technique. In absolute terms, 5 years may seem incomprehensibly ridiculous for what amounts to digital gra…

No, I don't think they'll think that at all. Phrasing the range of penalties would simply add information about the outcome of actual cases, which are public record and no less factual than the statutory maxima. If you think were' better off having less information, then I'm out of this conversation.
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