Category: Justice

This Would Not Have Happened Without Snowden Leaks

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The FISA Court just rejected the NSA’s request to hold onto to phone metadata forever:

A federal surveillance court has rejected the Obama administration’s bid to hold onto millions of phone records beyond the current five-year limit.

The ruling is a rare rebuke for the government from the secretive Foreign Intelligence Surveillance Court. The court has rejected less than 1 percent of government spying requests over the past 30 years.

But Judge Reggie Walton said he found the Justice Department’s argument for extending the retention of phone records “simply unpersuasive.”

Government lawyers had argued that they needed to retain the data as evidence for the slew of privacy lawsuits filed in the wake of Edward Snowden’s leaks about National Security Agency surveillance. The American Civil Liberties Union, the Electronic Frontier Foundation, and other groups are suing to shut the program down, claiming it violates the constitutional rights of millions of Americans.

………

But the federal judge noted that none of the privacy groups have tried to force the NSA to hold onto the data for their lawsuits. He wrote that the groups are seeking “the destruction of the [telephone] metadata, not its retention.”

Walton concluded that there is no legal requirement for the NSA to retain the data, and that any motivation for retaining the records is outweighed by the privacy harm.

Without Snowden, there would never have been the lawsuits, and even if there had been the suits, without the focus on the rubber stamp nature of the FISA court, the request would simply have been quietly granted.

Thank you Edward Joseph Snowden.

Senate Votes Down Sexual Assault Accountability and the Army’s Top Sex Crime Prosecutor Relieved for Sex Crime

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On the same f%$#ing day as a filibuster killed sex crime prosecution reform in the Senate,  Lt. Col. Joseph “Jay” Morse, the top sex-crimes prosecutor in the US Army, was Asuspended for alleged sexual assault:

The top Army prosecutor for sexual assault cases has been suspended after a lawyer who worked for him recently reported he’d groped her and tried to kiss her at a sexual-assault legal conference more than two years ago.

………

Morse was removed from his job when the allegations came to light, one source said. To date, no charges have been filed in the case.

………

Sources told Stars and Stripes that the Army lawyer alleged that Morse attempted to kiss and grope her against her will. The alleged assault reportedly took place in a hotel room at a 2011 sexual assault legal conference attended by special victims prosecutors in Alexandria, Va., before he was appointed as chief of the Trial Counsel Assistance Program.

So long as those ratf%$#s in the Senate are unwilling to protect the troops from the corrupt elements in our officer corps, this crap will continue.

John Adams is Spinning in His Grave

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The Senate has defeated the appointment of Debo Adegbile’s appointment as head of the DoJ’s Civil Rights division because he defended a black man accused of murdering a cop:

Senate Democrats on Wednesday rejected President Obama’s nominee to lead the Justice Department’s Civil Rights Division in an embarrassing rebuke of the president on the choice of a key legal adviser and one that left senior White House officials “furious” with members of their own party.

The nominee, Debo P. Adegbile, was litigation director of the NAACP Legal Defense and Educational Fund when it represented Mumia Abu-Jamal on an appeal of his death sentence for killing a Philadelphia police officer decades ago. He could not overcome a campaign by Republicans, conservative activists and law enforcement organizations still infuriated by the murder of the officer, Daniel Faulkner.

But it was the votes of seven Democratic senators to reject Mr. Adegbile that doomed the nomination despite what White House officials described as a sustained closed-door effort by Mr. Obama and his top aides to save the nomination. The president personally appealed to Senate Democrats at a recent caucus meeting and made several calls to Democratic senators in the last week, officials said. Vice President Joseph R. Biden Jr. and Denis R. McDonough, the White House chief of staff, continued making calls Tuesday night and Wednesday morning.

I’m not blaming the Republicans here. They would oppose the appointment of Pope Francis to head the Office of Faith Based outreach.

Additionally, I can understand why they oppose Adegbile’s record of strong protection of civil rights, particularly voting rights.

After all, if there is a defining characteristic of the Republican party in the ‘Teens, it is that they want to stop n***ers from voting.

I do blame the 7 Democrats, who seem to find that the idea of a black man getting competent counsel is somehow a bad thing, and I do blame the various elements in law enforcement who seem to think that being a good lawyer should be a crime.

This is is evil, runs counter to the constitution, and hundreds of years of British jurisprudence before that.

It is a sacred duty for the defendant to have competent legal counsel. That is why John Adams defended the British soldiers who shot the demonstrators at the Boston Massacre.

If you have a problem with this, you should not be a lawyer, a legislator, or a cop.

Anyone involved in this effort, and the cowards who folded to it, are unAmerican, and need to have no further role in our public discourse.

The Supreme Court is to Take Up Software Patents

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I messed this in December, when the Supreme Court agreed to rule on the validity of software patents:

Renewing its recent fascination with the kinds of inventions that can be patented, the Supreme Court on Friday agreed to clarify when an analytical method implemented by a computer or by a link on the Internet is eligible for monopoly protection. This was the only new case granted. The Court will be reviewing a widely splintered decision by the U.S. Court of Appeals for the Federal Circuit, in the case of Alice Corporation Pty. Ltd. v. CLS Bank International (docket 13-298). The en banc Federal Circuit found the method at issue ineligible for a patent, but a majority could not agree on a standard for making such decisions.

 The case will provide a new test of the Patent Act’s most basic provision — Section 101, which broadly outlines what kinds of inventions are patentable. One of the long-standing exceptions to the types of inventions mentioned in that section is that an abstract idea can never be patented. That issue arises frequently these days, especially with rapidly developing technology in computer software. The Justices have dealt with that issue several times in recent years.

 Alice International, an Australian company that is half-owned by the National Australia Bank Ltd., obtained patent protection on a method invented by its founder, Ian Shepherd, for exchanging financial instruments, with the aim of assuring that, when two parties have agreed to an exchange of currency or other financial goods, they actually deliver on the deal. Because such agreements are often delayed at least a few days in implementation, there is a risk that one side won’t live up to the agreement. The invented program works out a settlement arrangement to determine which side is obliged to deliver. It generates instructions to the institutions involved to carry out their agreement.

Hopefully, this means that the Supreme Court is willing to overrule the U.S. Court of Appeals for the Federal Circuit, aka “The Patent Court”, which has ignored Supreme Court precedent for years:

This spring, the Supreme Court will weigh in on the patentability of software for the first time in a generation. In the 1970s, the high court placed strict rules on software-related patents. But since then, a lower court has effectively overruled the Supreme Court’s precedents, allowing hundreds of thousands of legally dubious software patents to be approved.

 The arguments in the software patent debate have barely changed since the 1970s, but the players in the debate have changed radically. In 1972, IBM was a leading software patent opponent. Today, Big Blue has become one of the concept’s biggest supporters. In 1991, Bill Gates warned that patents could bring the software industry to a “standstill.” Today, Microsoft is fighting to protect the tens of thousands of software patents in its portfolio.

 ………

 During the 1970s, patent law was shaped by a Supreme Court that was skeptical of patents on software. Even its 1981 decision [which allowed for a computer controlled method of curing rubber involving a computer to constantly monitor temperature] emphasized that there were limits on software-related patents. In 1982, Congress made a seemingly innocuous change to the structure of the court system that had a profound impact on the legal status of software patents.

 Most areas of the law are handled by generalist judges organized into a dozen geographically based appellate courts. But Congress, concerned that patent law had become too complex for generalist judges, created a new court called the Federal Circuit Appeals Court. The Federal Circuit was given jurisdiction over all patent appeals. And perhaps because its judges spend so much time rubbing elbows with patent attorneys, the new court would prove to have a strong pro-patent bias.

 An important turning point came in a 1994 ruling involving a computer graphics technique called anti-aliasing. ………

Anti-aliasing was a technique which had been known for decades, but the patent court ignored precedent, and allowed the patent, and opened up the floodgates, which later extended to business models and financial constructs.

I think that it is likely that SCOTUS will issue significant restrictions, because, ever since the Blackberry case, pretty the only time that they take up a case like this, it is to slap down the maniacs in the Patent Court.

They need to come down on this bullsh%$ hard, because the jokers in the U.S. Court of Appeals for the Federal Circuit are arrogant clueless extremists.

It Appears that This Guy Got His Law Degree from Bob Jones University

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In a world of right wing hack judges issuing morally indefensible options, Federal District Judge William Martini has set a contemptible new standard:

The first legal challenge to the New York police department’s blanket surveillance of Muslims in the wake of the 9/11 terrorist attacks has been dismissed by a federal judge in New Jersey in a ruling that lawyers acting for the plaintiffs have described as preposterous and dangerous.

Judge William Martini, sitting in the US district court for the district of New Jersey, threw out a lawsuit brought by eight Muslim individuals and local businesses who alleged their constitutional rights were violated when the NYPD’s mass surveillance was based on religious affiliation alone. The legal action was the first of its type flowing from the secret NYPD project to map and monitor Muslim communities across the east coast that was exposed by a Pulitzer prize-winning series of articles in 2011 by the Associated Press.

In his judgment, released on Thursday, Martini dismisses the complaint made by the plaintiffs that they had been targeted for police monitoring solely because of their religion. He writes: “The more likely explanation for the surveillance was a desire to locate budding terrorist conspiracies. The most obvious reason for so concluding is that surveillance of the Muslim community began just after the attacks of September 11, 2001. The police could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself.”

………

The Martini decision absolves the NYPD of having caused distress or damage to Muslims caught by its mass surveillance on the unusual grounds that were it not for the Associated Press disclosure of the secret programme, those targeted by the monitoring would have been unaware that it was happening.

“The Associated Press covertly obtained the materials and published them without authorization. Thus the injury, if any existed, is not fairly traceable to the City,” Martini writes.

Later in the judgment, he adds: “Nowhere in the complaint do plaintiffs allege that they suffered harm prior to the unauthorized release of the documents by the Associated Press. This confirms that plaintiffs’ alleged injuries flow from the Associated Press’s unauthorized disclosure of the documents. The harms are not ‘fairly traceable’ to any act of surveillance.”

So, it’s OK to profile Muslims, and possibly entrap them, so long as you do not about it?

This judge seems to think that it makes sense to send spies into girls schools.

This is f%$#ing insane, and I hope that this Bush appointee’s ruling is overruled before the ink is dry.

As the Punchline Says, “A Good Start”*

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In the last 8 months, there have been 12 suspicious deaths, including one suicide by nail-gun to the head & chest with 7 or 8 shots.

There is also a missing financial reporter with the WSJ.

To quote Richard Dreyfuss, “This was no boat accident.”

Some of the deaths were clearly suicides, and the intern who died of exhaustion induced seizures is merely deplorable, not suspicious, but some of them, particularly Richard Talley, the nail-gun guy, make you wonder if some of the banksters, or perhaps some of their sketchy clients *cough* Russian Mafia *cough* might be tying up some loose ends.

* This is a reference to the old joke that goes:
               Q: What do you call 5000 dead lawyers at the bottom of the ocean?
               A: A good start!”

Not Enough Bullets………

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To no one’s surprise, this involves real estate developers, a scurvy lot who depend on the kindness of taxpayers while extolling the virtue of “free market heroes” like themselves.

Case in point, Seattle developers are suing because they think that the city is charging too much for them to break zoning laws:

A coalition of several developers filed a lawsuit in King County Superior Court on January 15 that would make Seattle, already booming with construction cranes, more friendly for developers. Their issue? One of the city’s affordable-housing programs.

Since 2006, the city has struck a deal with developers in the downtown core: In exchange for setting aside a few modestly affordable units or paying fees toward a city housing fund, developers get to build taller buildings. For example, developers could build a 400-foot tower where they’d otherwise have to keep it under 300 feet. The Seattle City Council raised those fees by about one-third in December 2013. In their lawsuit, which cites three Supreme Court decisions, the developers claim that fee hike is “an out-and-out extortion.”

So they’re asking a judge to invalidate that higher fee, making it cheaper and easier to build the tallest buildings allowed downtown—while throwing even fewer scraps to the city’s growing affordable-housing needs.

“This just shows developers are not willing to do their fair share,” says Rebecca Saldaña of Puget Sound Sage, an affordable-housing advocacy group. She says Seattle’s taxpayers fund a housing levy, and politicians have eased other development requirements. This latest uptick in fees, Saldaña says, is “really just asking developers to come up to speed.”

………

For example, Smith’s Second and Pike project is a proposed 400-foot tower, with 290 residential units above retail and restaurant space. Normally, the height limit there is 290 feet. Under the new fee regulations, in exchange for that extra height, Smith would have to pay a one-time fee of around $2.5 million into the city’s housing fund. The lawsuit says the city should revert to the former requirements, which require paying only $1.8 million. (In an odd twist, Smith will pay the $1.8 million either way, because he applied for a permit under the old rules.)

“My hope is that most people won’t actually pay the fees,” says O’Brien. “They’ll just provide the housing” inside the new construction. In Smith’s building, that would mean setting aside 20 or so moderately affordable units—around $1,300 a month for a one-bedroom apartment.

Clearly, even that isn’t particularly affordable, and 20 apartments don’t amount to much housing. And the city knows its program isn’t good enough. Which is why housing advocates, developers, and lawmakers have been meeting since last summer to overhaul the program.

$1300/month.

If you figure that 25% of pre-tax income should go to housing, that translated to about $62K a year.

For a one bedroom apartment.

And this is too much for the developers to tolerate.

You know, when Mao came to power in China, he executed the landlords, basically the real estate developers of China of the time.

I’ve always found it hard to condemn this act.

A 23 Year Long Multi-Billion Dollar Long Contract Dispute Settled

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And, surprise, surprise, it is a sweetheart deal for the defense contractors: (paid subscription required)

After more than two decades and numerous attempts at a settlement, the U.S. government finally agreed to accept $400 million from General Dynamics and Boeing in the dispute over the Navy’s cancellation of the $4.8 billion A-12 Avenger II program.

 The settlement is a fraction of what the government sought when the lawsuit began, demanding $1.3 billion in restitution ($2.2 billion in 2014 dollars) for money spent on the stealthy carrier-based aircraft program that had yet to deliver an aircraft. And it is even smaller when compared with an agreement for $2.9 billion that was nearly negotiated in 2003.

 ………

 The Navy will receive three EA-18G Growlers that will be delivered on top of the 21 Boeing aircraft that were funded by Congress for fiscal 2014 and are expected to be delivered in 2016, according to the Navy.

 General Dynamics will provide $198 million in credits to the Navy toward the design, construction and delivery portions of the Zumwalt-class DDG-1000 destroyer.

 ………

 The dispute began in 1991, when then-Defense Secretary Dick Cheney canceled the $4.8 billion stealth attack aircraft, run by General Dynamics and McDonnell Douglas, which has since been acquired by Boeing. It was terminated in part due to the government’s conclusion that contractors were not meeting cost and schedule targets. The Navy demanded that contractors repay $1.3 billion to the government.

 The prime contractors sued the government, arguing the government should make penalty payments because the contract was canceled for “convenience,” not a failure to perform. The case festered in the court system, eventually reaching the Supreme Court.

 ………

 In 2011, 20 years after the start of the dispute, the Supreme Court considered the case. The Navy argued that the contractors had not completed the work they had promised. The contractors argued that the government held back classified information about stealth technology that hampered their effectiveness. Ultimately, the Supreme Court sent the case back to the U.S. Court of Federal Claims, where it remained until now.

They met none of their technical requirements, they missed their schedule, and they were hideously over budget, and the punishment for the (now effectively admitted with the settlement) misfeasance and malfeasance is that the contractors get to secure the status of existing programs.

Mixed Emotions

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When something bad is happening to an group of truly awful people, I frequently experience schadenfreude.

When it in suggest negative implications for the rest of us, my feelings are more mixed.

Case in point, the defamation suit that may bankrupt the National Review:

National Review, founded by William F. Buckley Jr. in 1955, has had an enormous impact on the nation’s politics. Its writers formulated the ideology that animated the quixotic Barry Goldwater campaign of 1964, and then Ronald Reagan’s successful run for the White House in 1980. In the years since, National Review has often worked to keep Republican presidents focused on implementing its vision of conservatism, while bucking up the conservative troops when the movement has found itself out of power.

Today the magazine enjoys circulation roughly equivalent to that of The Nation, the American Left’s leading journal of opinion, and more than twice that of William Kristol’s The Weekly Standard, its primary competition on the Right.

And now, National Review may be fighting for its life.

Climate scientist Michael Mann is suing National Review and Mark Steyn, one of its leading writers, for defamation. It’s a charge that’s notoriously hard to prove, which is no doubt why the magazine initially refused to apologize for an item on its blog in which Steyn accused Mann of fraud. Steyn also quoted a line by another conservative writer (Rand Simberg) that called Mann “the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data.” (Simberg and the free market think tank for which he works, the Competitive Enterprise Institute, are also named in the suit.)

The lawsuit has not been going well for the magazine. In July, Judge Natalia Combs Greene rejected a motion to dismiss the suit. The defendants appealed, and last week D.C. Superior Court Judge Frederick Weisberg rejected the motion again, opening the door for the discovery phase of the lawsuit to begin.

That’s not all. On Christmas Eve, Steyn (who regularly guest hosts Rush Limbaugh’s radio show) wrote a blog post in which he excoriated Greene, accusing her of incompetence, stupidity, and obtuseness. As a result of this outburst, the law firm that had been representing National Review and Steyn (Steptoe & Johnson) has dropped Steyn as a client and reportedly has plans to withdraw as counsel for the magazine as well.

Part of me hopes that The National Review gets sued into oblivion.    It is a pernicious organization, and it has been since Buckley founded it, and filled it with Oh-So-Civilized support for segregation.

Part of me worries that the Kochs will start funding SLAPP suits against in an attempt to intimidate real news gathering organizations.

And so I leave it with all of you: Which came out of the opened door – the lady, or the tiger?

H/t Salon.

Here is an Amicus Brief I Fully Support

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There has been a fascinating friend of the court (amicus) brief on the latest Obamacare suits, the “ladyparts are icky” suits from Hobby Lobby and Conestoga Wood Specialties.

It argues that the “Religious Freedom Restoration Act” is an unconstitutional because it is an unconstitutional abrogation of the constitutional role of the courts in interpreting the law:

Arguing that Congress has gone too far to push aside the Supreme Court’s constitutional role in religion cases, a loose coalition of child welfare organizations, survivors of clergy child sexual abuse, and non-believers has urged the Justices to strike down the Religious Freedom Restoration Act when it rules on a new dispute over the federal health care law.

 The amicus brief, written by a prominent academic authority on religion and the law, Cardozo Law School’s Marci A. Hamilton, seeks to add a bold new dimension to the Court’s review of the Affordable Care Act’s “contraception mandate.”

 “RFRA,” the document contended, “is Congress’s overt attempt to take . . . over this Court’s role in interpreting the Constitution. . . . [T]his novel federal statute, which is one of the most aggressive attacks on this Court’s role in constitutional interpretation in history, has fomented culture wars in the courts like the one ignited” in the pending cases by for-profit businesses seeking a RFRA-based exemption from the mandate to provide health insurance for pregnancy-related services to workers.

Normally, I would not expect that this would have any bearing on the court’s decision, but the core of this argument is flattering the court as an institution, so that makes it a bit more likely.

Another Strike Against the No Fly List

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Obama must love Kafka and Orwell’s nightmares, because he is emulating them

And this ruling is not being classified as secret:

A Virginia man who claims that as a teenager he was detained, interrogated, and abused in Kuwait at the behest of the Obama administration (a story I wrote about here) has won a key victory in his lawsuit against the government. A George W. Bush-appointed judge allowed Gulet Mohamed’s case to move forward on Wednesday, ruling that by putting him on the no-fly list (and thus infringing on his right to return home to the US), the government made him “a second class citizen.”

 Judge Anthony Trenga of the US District Court in Alexandria, Virginia, ruled that the no-fly list’s “impact on a citizen who cannot use a commercial aircraft is profound,” restricting the right to travel and visit family, the “ability to associate,” and even the ability to hold down a job. Inclusion on the list also “also labels an American citizen a disloyal American who is capable of, and disposed toward committing, war crimes, and one can easily imagine the broad range of consequences that might be visited upon such a person if that stigmatizing designation were known by the general public,” Trenga added. Here’s another key excerpt:

In effect, placement on the No Fly List is life defining and life restricting across a broad range of constitutionally protected activities and aspirations; and a No Fly List designation transforms a person into a second class citizen, or worse. The issue, then, is whether and under what circumstances the government should have the ability to impose such a disability on an American citizen, who should make any such decision, according to what process, and by what standard of proof.

This little bit of Kafkaesque horror is something that came from the Obama administration.

This is not the product of one of Dick Cheney’s security wet dreams, this is Obama embracing and extending those policies.

Making Sense of Chris Christie………

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Joe Patrice, at Above the Law, observes that Chris Cristie’s pattern of abusing power is typical for a former prosecutor:

Unless you’re living under a rock or stuck in traffic on the George Washington Bridge, you know that N.J. Governor Chris Christie spent yesterday digging himself out of the Fort Lee traffic scandal in the most Jersey of manner — by placing a proverbial bullet in the back of the neck of one of his most trusted allies Tony Soprano-style. He even invited the media over to the Bada-Bing for a couple of hours after he did it.

………

But whether Christie was directly involved in this scandal or not — and so far the digital paper trail seems to begin with his mild-mannered aide showing uncharacteristic initiative and ends with a high school crony whom Christie put in charge of the bridge — this scandal falls somewhere between unsurprising and utterly inevitable.

Christie is a former prosecutor, serving as a U.S. Attorney from 2002 until 2008. The modern prosecutor is armed with the luxury to exact petty, brutal revenge on any and all who cross him or her, and this is the mentality that Christie brought into the Governor’s Mansion. Indeed, he made this mentality his political calling card.

………

And that atmosphere flows directly from the arrogance of a prosecutorial office.

………

Prosecutors are incentivized to use all of their vast power to get more people convicted, and they’re willing to use a bazooka to kill a cockroach if it advances that ball. Listen, I spent a lot of time working with current and former prosecutors. And whether I represented a cooperator working with the government or I was sitting on the same side as a defense lawyer freshly out of the prosecutor’s office, it always disturbed me how quickly they would leap to asking “how do we screw them?” over the most minor of slights.

When this is the model of success that propels you into office, how does one reset? In Christie’s case, he never eschewed this model of leadership. He may well have directly ordered these lane closures, but even if he didn’t, the mentality he has championed in his meteoric rise to prominence invited this sort of behavior. And now we’re supposed to be forgiving when he says his deputy acted alone when plotting to make life hell for someone unwilling to kowtow to the Governor’s overtures?

It makes a lot of sense, and it also frightens the hell out of me about our criminal justice system.

BTW, if you want to read a less charitable assessment of Jabba the Governor, you can read Chris Hedges‘ takedown.

I don’t think that it is as informative, but it’s a jolly good read. 

Arizona Abortion Restrictions Struck Down

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The Supreme Court has declined to review the appeals court decision invalidating the law, so the the decision stands:

The US Supreme Court on Monday turned aside a request by Arizona officials for the high court to examine the constitutionality of a state statute that sought to restrict abortions after 20 weeks of fetal gestation.

A panel of the Ninth US Circuit Court of Appeals invalidated the Arizona abortion statute last year, ruling that it violated long-established Supreme Court precedents by depriving a woman of the choice to terminate her pregnancy prior to the point of fetal viability.

Supporters of the law expressed disappointment over the high court’s move.

“Every innocent life deserves to be protected,” Steven Aden, an attorney with Alliance Defending Freedom, a conservative Christian nonprofit based in Scottsdale, Ariz.

“Not only did this law protect innocent children in the womb who experience horrific pain during a later-term abortion, it also protected mothers from the increased risk of physical harm and tremendous psychological consequences that come with late-term abortions,” Mr. Aden said in a statement.

Women rights groups praised the high court action.

I praise this high court action as well.

Elementary, My Dear Copyright Troll

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A hundred and twenty five years after their publication, a Federal Court judge has told the estate of Sir Arthur Conan Doyle to go Moriarty themselves, and declared that the Sherlock Holmes universe is unequivocally in the public domain:

In the more than 125 years since he first appeared, Sherlock Holmes has popped up everywhere from fan fiction set in outer space to screen adaptations like CBS’s “Elementary,” set in contemporary Manhattan. But now, following a legal ruling, the deerstalker-wearing detective is headed to another destination: the public domain.

A federal judge has issued a declarative judgment stating that Holmes, Watson, 221B Baker Street, the dastardly Professor Moriarty and other elements included in the 50 Holmes works that Arthur Conan Doyle published before Jan. 1, 1923, are no longer covered by United States copyright law, and can therefore be freely used by others without paying any licensing fee to the writer’s estate.

The ruling came in response to a civil complaint filed in February by Leslie S. Klinger, the editor of the three-volume, nearly 3,000-page “New Annotated Sherlock Holmes” and a number of other Holmes-related books. The complaint stemmed from “In the Company of Sherlock Holmes,” a collection of new Holmes stories written by different authors and edited by Mr. Klinger and Laurie R. King, herself the author of a mystery series featuring Mary Russell, Holmes’s wife.

Mr. Klinger and Ms. King had paid a $5,000 licensing fee for a previous Holmes-inspired collection. But in the complaint, Mr. Klinger said that the publisher of “In the Company of Sherlock Holmes,” Pegasus Books, had declined to go forward after receiving a letter from the Conan Doyle Estate Ltd., a business entity organized in Britain, suggesting that the estate would prevent the new book from being sold by Amazon, Barnes & Noble and “similar retailers” unless it received another fee.

………

But the judge rejected what he called the estate’s “novel legal argument” that the characters remain under copyright because, it claimed, they were not truly completed until Conan Doyle published his last Holmes story in 1927.

This is a good thing.

There needs to be limits to the rent seeking related to IP. 

Holmes is already in the public domain in its native Britain, and any further royalties extracted by the estate does nothing to encourage the, “Promote the Progress of Science and useful Arts,” which is the Constitutional justification for our IP regime.

A Lot of People Wonder Why There Haven’t Been Any Wall Street Prosecutions, but ………

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This time it’s a United States District Judge on senior status for the Southern District of New York, and Judge Jed Rakoff is asking this question in the New York Review of Books:

One possibility, already mentioned, is that no fraud was committed. This possibility should not be discounted. Every case is different, and I, for one, have no opinion about whether criminal fraud was committed in any given instance.

But the stated opinion of those government entities asked to examine the financial crisis overall is not that no fraud was committed. Quite the contrary. For example, the Financial Crisis Inquiry Commission, in its final report, uses variants of the word “fraud” no fewer than 157 times in describing what led to the crisis, concluding that there was a “systemic breakdown,” not just in accountability, but also in ethical behavior.

As the commission found, the signs of fraud were everywhere to be seen, with the number of reports of suspected mortgage fraud rising twenty-fold between 1996 and 2005 and then doubling again in the next four years. As early as 2004, FBI Assistant Director Chris Swecker was publicly warning of the “pervasive problem” of mortgage fraud, driven by the voracious demand for mortgage-backed securities. Similar warnings, many from within the financial community, were disregarded, not because they were viewed as inaccurate, but because, as one high-level banker put it, “A decision was made that ‘We’re going to have to hold our nose and start buying the stated product if we want to stay in business.’”

Without giving further examples, the point is that, in the aftermath of the financial crisis, the prevailing view of many government officials (as well as others) was that the crisis was in material respects the product of intentional fraud. In a nutshell, the fraud, they argued, was a simple one. Subprime mortgages, i.e., mortgages of dubious creditworthiness, increasingly provided the chief collateral for highly leveraged securities that were marketed as AAA, i.e., securities of very low risk. How could this transformation of a sow’s ear into a silk purse be accomplished unless someone dissembled along the way?

………

suggest that this is not the best way to proceed. Although it is supposedly justified because it prevents future crimes, I suggest that the future deterrent value of successfully prosecuting individuals far outweighs the prophylactic benefits of imposing internal compliance measures that are often little more than window-dressing. Just going after the company is also both technically and morally suspect. It is technically suspect because, under the law, you should not indict or threaten to indict a company unless you can prove beyond a reasonable doubt that some managerial agent of the company committed the alleged crime; and if you can prove that, why not indict the manager? And from a moral standpoint, punishing a company and its many innocent employees and shareholders for the crimes committed by some unprosecuted individuals seems contrary to elementary notions of moral responsibility.

Coming from a federal judge, one of the first who refused to approve the standard, “No harm, no foul,” consent decrees from the SEC and the DoJ, this is fairly shocking to hear.

The Rotational Velocity of Kafka and Orwell Has Slowed a Bit

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The military commission in Guantanamo has decided that the defendants recollection of their own torture is not classified, so they can testify about their own experiences:

MILITARY COMMISSION RETREATS ON CLASSIFICATION OF TORTURE MEMORIES FOR IMMEDIATE RELEASE

Media contact: James Connell 011(5399) 5168

Alternate: Erin Daste 011(5399) 5321

GUANTANAMO BAY, CUBA Today, the military commission in the 9/11 case issued several orders (AE200II, AE 013CCC, and AE013DDD) which lift the provision classifying the “observations and experiences” of defendants formerly held by the CIA.  Defense attorneys are still required to treat CIA information as classified, but the military commission acknowledged that it had limited authority to control defendants’ thoughts and memories.

“This ruling is an important step forward in accountability for torture,” said James Connell, attorney for Ammar al Baluchi.  “The real question is whether the prison will allow the prisoners to communicate with foreign government officials, medical care providers, human rights authorities, and media.”
This ruling is the latest vindication of a series of defense challenges to the United States’ authority to classify the thoughts, memories, and statements of the former CIA prisoners.  In September 2012, the government abandoned its long-held policy of “presumptive classification,” in which every statement of former CIA prisoners was considered classified, but substituted a provision defining all prisoner observations and experiences on CIA detention as classified.  Defense attorneys challenged that provision as violating the Convention Against Torture.  Today’s ruling, which the prosecution strenuously opposed, lifts that restriction.

“People who have been abused by officials have a right to tell human rights organizations, medical care providers, and others about their torture,” said Lt Col Sterling Thomas, United States Air Force, military attorney for Mr. al Baluchi.  “If governments are allowed to keep allegations of torture secret, the protection against torture is worthless.”

 Now to prosecute, or at least pull the security clearances, of everyone who had anything to do with conducting, managing, or approving torture.

Thank Edward Snowden for this Court Ruling

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Yesterday, Federal Judge Richard Leon ruled that the NSA’s bulk gathering of phone records was probably unconstitutional.

There are a fair number of points that were made.

The first was that the data release by Edward Snowden, and its publication by Glenn Greenwald made the fact that the NSA was collecting everyone’s phone records a matter of public record, and hence that the litigants had standing because they knew that their data was being collected.

Basically, he is saying that the ruling in Clapper v. Amnesty international, that people could not challenge secret surveillance, because it was secret, so they had no standing.

As Charlie Pierce notes, this makes for a game changer:

Let us be clear. No matter what you think of Snowden, or Glenn Greenwald, and no matter what you think of what they did, this ruling does not happen if the NSA doesn’t let a contractor walk out of the joint with the family jewels on a flash drive. This ruling does not happen if we do not know what we now know, and we don’t know any of that unless Snowden gathers the data and leaks it to the Guardian.

His next point illustrates just how 6 degrees of separation works:

“Suppose, for instance, that there is a person living in New York City who has a phone number that meets the RAS standard and is approved as a ‘seed,’ ” Judge Richard Leon writes in a broad opinion finding that the National Security Agency’s “telephony metadata” program is likely unconstitutional. An R.A.S. is a “reasonable, articulable suspicion” that someone might have something to do with terrorism; a seed is a search term, perhaps a telephone number, that the N.S.A. plugs into a database of hundreds of millions of phone records it has collected indiscriminately. “And suppose this person, who may or may not actually be associated with any terrorist organization, calls or receives calls from 100 unique numbers, as in my example. But now suppose that one of the numbers he calls is his neighborhood Domino’s Pizza shop,” Judge Leon continues:

The Court won’t hazard a guess as to how many different phone numbers might dial a given Domino’s Pizza outlet in New York City in a five-year period, but to take a page from the Government’s book of understatement, it’s “substantially larger” than the 100 in the second hop of my example, and would therefore most likely result in exponential growth in the scope of the query and lead to millions of records being captured by the third hop.

It is also interesting to note that  Judge Leon specifically noted that the intelligence drift net did not get any meaningful results:

A warrantless, suspicionless search that abridges a legitimate expectation of privacy might be “reasonable” if it was justified by a compelling security interest that cannot be addressed any other way. In perhaps the strongest passages of Justice Leon’s opinion, he persuasively argues that there is no such interest in this case. The government has simply not shown that these intrusive searches are justified as counterterrorism measures. While the government argues that these warrantless searches are necessary for reasons of efficiency, they simply haven’t made the case:

…the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature. In fact, none of the three “recent episodes” cited by the Government that supposedly “illustrate the role that telephony metadata analysis can play in preventing and protecting against terrorist attack” involved any apparent urgency.

I hope that his ruling will stand, but I fear that it won’t.

Your Moment of Kafka, No-Fly List Edition

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There is now a distinct possibility in the lawsuit filed by Rahinah Ibrahim about her being on the no-fly list, the verdict might be kept secret. (My prior post on the trial is here.)

That’s right, win or lose, Rahinah Ibrahim, and the general public, may never know if she was on the list, if she is on the list, or whether her name has been removed from the list:

Is former Stanford University scholar Rahinah Ibrahim connected to Malaysian jihadists, as the FBI once suggested, or is she the victim of misguided U.S. bureaucrats who erroneously placed her on a U.S. terror watchlist? Is she even on a watchlist at all?

 Those are the lingering unanswered questions in the first-of-its kind federal trial challenging a traveler’s alleged placement on America’s notorious no-fly list. The 48-year-old Malaysian woman’s case against the U.S. government — in which she seeks solely to clear her name — is awaiting a judge’s verdict after a week of testimony, the bulk of it classified and given behind closed doors here in a San Francisco federal courtroom.

 But underscoring the Kafkaesque flavor of the trial, there’s a real possibility the verdict itself will be kept a secret, even from Ibrahim.

 “It is conceivable? If the government continues to keep this information secret from her and the public, and the judge sustains that objection, it is possible we can have a ruling in this case and she would not know the result,” Elizabeth Marie Pipkin, Ibrahim’s pro-bono attorney, said in a telephone interview.

You can call it Kafkaesque, or you can call it Orwellian, or you can call it police state tactics, but in any case, this really, really, wrong.