Sunday, November 25, 2007

Quick Fodder for the Conspiracy Theorists...

Just for the record, we were close to Osama bin Laden before September 11, 2001.

Comcast stupidity...

Some time ago, I forewent several posts on Comcast Corp's decision to limit bandwidth, and basically censor the internet. I can't help sharing this gem of a Comcast experience.

I have been having some difficulties with my cable service recently. I have been on the telephone several times, technicians come out to review the infrastructure, we change connections, and nothing seems to solve the problem. One time, while on the phone with a service associate, I made reference to how the cable company wasn't upholding its end of our contract for services. The associates response, which left me dumbfounded, stated very specifically that no contract existed. This was confirmed by her supervisor, who told me he wouldn't get into a semantical argument with me about whether a contract exists. I was, and continue to be, amused by the situation. I think their legal department needs to be reeducated on some basic legal principles.

Just for the purpose of clarity, a common law contract has several basic elements. There must be an agreement between the parties (basically an offer and acceptance of that offer), the parties must have an understanding about the agreement (basically a meeting of the minds, aka mutual assent), and the parties need to exchange this thing lawyers like to call consideration (basically money or goods). With this situation, Comcast provides a service which they offer for a certain price. I agree to pay that price, and do so regularly. As a result, Comcast is obligated to provide this service for as long as I hold up my end of the bargain and continue to pay. What's even more interesting is they regularly issue paperwork that contains the "terms" of use, which explain in poorly drafted language what a user may or not do with the service.

To be clear, saying that no contract exists is idiotic. Clearly, an agreement for services exists. Unless Comcast bought a congressional representative to push a statute voiding the existence of these contracts, the law will likely support the existence of service contract on behalf of Comcast and their subscriber. The situation was too funny for words.

French Oppressors?

Apparently, in France, if you get caught using a P2P network, you lose your internet access. Lets hope our dictators, or the RIAA/MPAA don't catch on. I wonder if they have any kind of redress against their service providers.

Wait, Fox News got something right?

Apparently so. The following video "proves" it. I find some of what this guy has to say very ironic given the "news" network broadcasting his words. I wonder if there were some producers having a conniption when he started railing on about the mindless sheep that Fox News so proficiently panders to on a regular basis. Someone needs to mark this date in history as the one time Fox got it right. Call Guinness.

Wednesday, November 21, 2007

This Is a Good Question...

Some know Tucker Carlson for his really terrible and short lived stint on TV's Dancing With the Stars. The rest of us know him as the MSNBC pundit. Recently, he raised a very serious question about Dennis Kucinich. It really is a good point, Kucinich seems to be on the right side of some big issues, and willing to say some unpopular things.

If anything, this points out a very disturbing trend with the current state of the impending 2008 elections. I just seems like things are skewed in a bad direction. The point of elections is to let the people choose freely. Doesn't this create the responsibility on the part of news outlets to provide impartial coverage? I think this could largely be attributed to the move away from hard news and towards "entertainment". If the current situation is full of symptoms, maybe that is the root of the problem.

Saturday, November 17, 2007

Congress Is Still Awake...

With all the insanity in American politics these days, it is nice to see that the Congress is still awake, and willing to prevent the President from abusing his office, on occasion. Here are two examples.

The Senate has blocked the ability for the President to make Thanksgiving Recess Appointments.


The House passed a bill that did not provide retroactive immunity to big telecoms for their part in questionable domestic surveillance projects. We can only hope the Senate is equally as awake on this one, but I wouldn't bet the farm.

ACLU v. NSA, round Two

Those who have followed the Grey Area know that the goings on with FISA have been an oft covered topic on these pages, especially since my paper on the War Powers was published by the Valparaiso Law Review in June of 2007. The District Court Decision may be found here (.pdf).

Recently, the 6th Circuit Court of Appeals rendered their decision on appeal from the decision of the Eastern District of Michigan. The decision may be found Here (.pdf).

For those looking for the quick answer, the 65 page decision came down to the ACLU's lack of standing. Specifically:

Because there is no evidence that any plaintiff’s communications have ever been
intercepted, and the state secrets privilege prevents discovery of such evidence, see Reynolds, 345
U.S. at 10, there is no proof that interception would be detrimental to the plaintiffs’ contacts, and
the anticipated harm is neither imminent nor concrete — it is hypothetical, conjectural, or
speculative. Therefore, this harm cannot satisfy the “injury in fact” requirement of standing.

Court's Opinion, Pg. 8.

Fundamentally, the Court's majority decision centers around the fact that the Plaintiffs failed to show that they were harmed by the NSA program. In fact, the decision goes a long way to determine that the Plaintiffs went out of their way to avoid the particular harm, and that even if the harm occurred, the Plaintiffs are barred from demonstrating that harm because the NSA invoked the State's Secrets Privilege. In a rather matter-of-fact manner, the majority states that this is merely "a subjective apprehension and a personal (self-imposed) unwillingness to communicate." Here the Court determines that the injury is not sufficiently acute to activate standing because there hasn't been a demonstration of specific harm. Instead, the alleged injury is nothing more than a subjective apprehension, which lead the plaintiffs not to act out of their own fear. This analysis lead the Majority to determine that the harm was not sufficient to permit standing in the case under the Supreme Court's decision in Laird v. Tatum, 408 U.S. 1 (1972).

The most abominable conclusion reached by the Court, however, is the notion that the actions of the NSA do not amount to Electronic Surveillance under the Foreign Intelligence Surveillance Act (FISA). The Court couches its conclusion in the definition of Electronic Surveillance in FISA. For the record, Electronic Surveillance is defined as:

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

50 U.S.C. 1801(f)(1)-(4) (obtained from here). I don't think it takes much technical expertise to figure out that placing a wire tap on a telephone line uses an electronic device to obtain information transmitted over the "wires" considering all electronic information must move through a form of infrastructure, much of which is composed of either copper wire or fiber optic cable.
To say that intercepting emails using a computer does not constitute electronic surveillance goes beyond ordinary ignorance, and strays into legal absurdity. What's worse is the majority opinion fails to explain how, exactly, the TSP does not constitute electronic surveillance demonstrate that the point is untenable.

The Majority makes on basic point; that, clearly, as alleged, the Plaintiffs failed to adequately plead sufficient injury to bring a constitutional challenge to the TSP. This, however, throws another issue into sharp relief. The reason why the plaintiffs failed to proffer evidence demonstrating actual harm due to their inability to obtain information because of the state's secret privilege. This issue was not raised on appeal, and may be a point of contention for later opinions. A direct analysis isn't appropriate here.

The dissent raises the most tenable arguments on the issues presented. As such, it is worth a read. At the very least, this case likely has merit to progress to a review en banc by the 6th Circuit. In the even that this fails, there is still the possibility that the Supreme Court would take the case. However, this new majority leaves only a dubious possibility that the Court will affirm the decision of the Eastern District of Michigan.

At the very least, this decision sets the stage for a confrontation over the application of the state's secrets privilege in matters that directly and detrimentally impact civil liberties interests, something that few courts have directly confronted, and is beginning to ripen into an important issue.

Thursday, November 08, 2007

Throwing in my Hat...

While this blog has continually critiqued candidates for political office, it rarely states with specificity where I stand, who I will vote for, or makes an outright endorsement for a candidate. This is going to be one of the few posts where this model changes.

As an American voter, I feel as though the 2008 Presidential race will require that I have a contingency plan depending on the outcome of the primaries early next year. For example, I don't support Hillary Clinton, but she leads the poles among Democrats, so I need to know which, if any, of the possible Republican candidates I will support in the even that they represent a lesser evil than the second half of the Clinton dynasty. This is the breakdown:

My Ultimate choice for President: Barrack Obama.
If Barrack is not a candidate: Ron Paul
If Ron Paul is not a candidate: Hillary Clinton

What does this mean? I support Barrack Obama. Not just because he is from Illinois, but because he is the only candidate with a positive vision of the American future. In addition, after meeting him in person before he was ever thought to be a candidate for President, he struck me as honest and sincere, something none of the other candidates, save maybe Ron Paul, demonstrate. Most importantly, he is a civil rights lawyer, so he knows the cost of his policies to the fundamental core structure of this country, the Constitution and its guaranteed freedoms. I trust Barrack, though inexperienced, to consider all of his options before making a decision, which is something that can't be said for President Bush especially when he advocates World War III. That being said, I am voting for Barrack Obama for President if I get the chance, regardless of who the other candidates.

Ron Paul has a good head on his shoulders. He is a real conservative. The kind we have forgotten about since the dawn of the New Deal era. He advocates small federal government and reducing our abusive and down-right imperial approach to world diplomacy. He understands the risks that prior Presidential policy presents to the American public. Above all, he advocates for the freedoms guaranteed by the Constitution, and is likely the only Republican candidate who understands what it means to follow the supreme law of the land.

Hillary Clinton is my last resort. I consider her to be the least of all the evils running for President aside from the two aforementioned candidates. However, this is literally a last resort since refusing to vote only results in tacit acquiescence to whims of the American majority. If I have to vote for Hillary, I will be doing so begrudgingly. I think the Southern Avenger may be on to something with this opinion demonstrating that electing Hillary will result in another 4 years of current neo-conservative policy. There is plenty to question with Hillary. First, she has a history of interesting supporters and this recently includes Pakistani lobbiests who recently reached the maximum level of support they can provide for a political candidate. This almost sounds like support for the newly self-appointed dictator, Pervez Musharraf. The only reason I am inclined to support a second Clinton administration is the hope that it will put us back on a sustainable economic track, though even this possibility is debatable.

As it stands, Hillary is a last resort, with Obama out front and Paul close behind. Hat, meet ring.