Many prosecutors are not concerned with morality. They are only concerned with legality.
Certain lawyers (such as rather average regular here) will argue that is as it should be. The problem is - as was discussed by Orin Kerr a few days ago at The Volokh Conspiracy, there's a lot of poorly written and unwise law out there creating discrepancy between legal and moral.
I am in agreement with Jay and anonymouse here. I think Ortiz's stubborn public statements will increase scrutiny of her performance as prosecutor and hopefully of the entire situation wherein overcriminalization invites prosecutorial misbehavior.
Over the past few decades, judges lost much of their discretion because of instances in which the public, and subsequently lawmakers became furious at apparent abuse of judicial discretion. The loss of discretionary power suffered by judges became a gain for prosecutors. Most unfortunately, prosecutors have not uniformly used this discretion in a wise pursuit of justice. One can only hope that there will be another redirection of our legal system in the near future.
The two memoranda above which have a little bit visible were issued by the DOJ Chief, Criminal Appellate Division, Patty Merkamp Stemler.
Couldn't this possibly be the same Patty Merkamp Stemler who was part of the Federal prosecution team held in contempt of court for failing to turn over information to the judge after being explicitly ordered to do so? That misconduct resulted in the collapse of the criminal case against Senator Ted Stevens.
It looks like the episode didn't teach DOJ attorneys anything. Maybe the lesson we should have learned is that the members of the executive branch are now so powerful that they can flout rules, ignore law and nothing happens. After all, none of the DOJ attorneys involved in the Stevens case suffered any career damage.
Ms. Merkamp Stemler even got promoted.
AC: Read the IEEE article again and apply a little critical thinking this time.
As the very first comment below your referenced article noted, the author of the article proved nothing except that
1) Cell phones have emissions that can be detected
2) People break the rules on every. single. flight.
The rest of the article consists of describing a collection of recorded opinions from air-crew members about events during the 1990's where they believed there may have been some interference caused by personal electronic devices. Such collection of anecdote is useful only to stimulate scientific investigation, but it certainly isn't controlled scientific inquiry which can lead to conclusive data.
Meanwhile... veritable years of *nothing* happening on millions of flights when these devices are on makes one highly prone to believe that this article is pure FUD. Note that the use of the word "millions" is not an exaggeration.
And no, I don't care that the paper's author was an ex-astronaut.
"consumers need to know how to use tools to inhibit that data collection"
Yes, but unfortunately the most well known tools such as 'Do Not Track' browser configurations virtually worthless. Do Not Track is nothing more than politely asking people who profit from your data not to take your data.
The only thing that works with certainty is a firewall with outbound blocking ability. Most consumer firewalls don't block outbound traffic, and even if you run those that do, they are somewhat of a pain to manage because they not infrequently hinder your online experience. Using outbound blocking requires the user to use judgement, and to take the time to manually unblock at times.
IT security firms have largely ignored outbound firewall strategies and have only focused on what to keep out instead.
If you wonder why the most popular computer security programs don't have outbound firewalls, well here's a little fact they don't want you to know: Many of the big name security and anti-viral firms are actually right in there purloining your data for sale to others. They are scarcely any different in this regard that the companies who more openly acknowledge that they take your information. To name a couple of names -- AVG and Symantec.
Furthermore Microsoft has a long history of aiding and abetting anyone who wants to get data out of your computer by making tools such as LSP and more recently WFP technology which can allow silent interception of all of your IP traffic, including SSL. WFP is embedded in the kernel and is meant to be undetectable and not removable. Microsoft does not provide the user with any way to prevent this kind of activity.
As a practical matter, the government is able to vacuum up large troves of information because all 3 branches of government appear to have agreed to ignore the seemingly plain language in the 4th amendment requiring a warrant, issued upon probable cause to suspect that a crime has been committed, prior to searching "persons, houses, papers, and effects". If the requirement for a warrant was being respected, the government would be restricted to only collecting information related to actual suspicion of crime.
Unfortunately many Americans can't wrap their head around the word "warrantless".
They like the idea that the government is wiretapping suspected terrorists, but they don't appear to understand or have an interest in the idea that wiretapping a person who is suspected of terror or other criminal activity is not the same thing as tapping anyone, anytime, for any reason that law enforcement desires.
Warrants are a paper trail that protect us from government employees acting in a malevolent fashion. Warrants ensure that a second opinion about the necessity or appropriateness of the tap is obtained. Law enforcement complains that warrants get in the way and they don't have time in an emergency situation.
My response to all of the above is to compare to the medical community. Physicians must do their paperwork if they want to operate. Imagine a surgeon who could do anything he/she wanted during an operation but was not required to have any paper-trail to document it. Without question the public would be less safe.
With respect to emergent situations, I do not see that a warrant requirement has to slow down law enforcement. We have doctors on call in order to keep the public safe from middle of the night emergencies. There is no reason that judges couldn't be on call for middle of the night emergencies as well.
AC's here have assailed and ridiculed accusations that the media industry was seeking to have laws passed which directly erode constitutional freedoms. I believe I've seen the words "wild-eyed", and "tinfoil hat" used.
Now I'm not familiar with the Israeli constitution, but I have to believe that the right of citizens to due process in a public court of law is found somewhere within it.
No tinfoil hat is required to see that if such a law were passed in the US it would very likely violate at least the 5th amendment.
" most of the books listed there are famous largely due to adaptations into other media, rather than famous as books on their own"
Do you want another example of a currently copyrighted work that is an adaption of *much* earlier work?
How about the Bible?
The Revised Standard Version --NT copyright 1946, OT copyright 1952. Those copyrights continue to be enforced, perhaps because the National Council of Churches of Christ believes in spreading to the gospel only to those who have properly licensed it.
For those who haven't read the Bible, it should be clear that the RSV owes a great deal to the 1611 King James Version. Now for the KJV, 402 years ought to safely ensure that the work is in the public domain right? In most of the world the answer is yes, but in the UK, the Crown still claims a Royal prerogative on the publishing rights to the King James Bible. This use of this prerogative with respect to the KJV has been granted to Cambridge University which still attempts to exert their rights to restrict publishing anything longer than 500 verses without permission.
"The major thing about Perceptional Properties, such as copyright, is that if it didn't exist, there would be no physical harm that could be proven. With Perceptional Property laws, there is provable harm"
What physical harm did you have in mind?
Please provide some examples/citations of "provable" "physical" harm.
The paper by Clement et. al. comes under some good criticism by David Post at The Volokh Conspiracy.
As Post says: "As a historical matter, I think they’re dead wrong."..."I also think they’re wrong, on the merits"
Post also observes that this paper appears to be a response to the recent Derek Khanna policy brief published and then withdrawn by the Republican Study Committee. The implication is that Clement is trying to influence originalist members of the GOP into thinking the founders believed in some natural right to intellectual property.
It is therefore well to consider that Thomas Jefferson directly addressed the question of natural rights with respect to what we now call 'intellectual property'.
"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it."
You are addressing the question of sensitive equipment used to determine the aircraft's location relative to the ground and it makes sense that these systems would only be on during takeoffs and landings.
I addressing another of the AC's arguments however. He was contending that there is a self-destruct device on-board airliners which he hypothesized could be triggered by interference from consumer electronics.
A) I don't believe such devices exist.
B) If they did exist, and interference triggering was possible, then electronic devices would never be allowed at any time during flight.
The insidious part of this is that once service providers begin selling their customers' data to the government, it becomes a regular budgeted income stream for them. The providers become accustomed to having this income stream, and are thereafter driven by typical profit incentive to promote even greater data sales volume.
Couldn't you bother to fact check even a little bit, before chiming in with the posters who were low on facts and high on FUD?
FACT: Analogue circuits are more vulnerable to RFI than their digital counterparts.
FACT: When comparing cell phones, the older AMPS phones had the greatest susceptibility to RFI, followed by D-AMPS phones. Fully digital phones are less susceptible.
OK... so commercial aircraft have self destruct devices now?
It is quite implausible that anyone charged in protecting public safety would want a device with explosive potential on-board commercial aircraft, as it would increase the risk of further damage or loss of life in the event of a crash. Why would authorities want to take the risk that a lessor problem such as a landing gear malfunction turns into a major tragedy? Even if this device did exist, the potential to remotely trigger it raises the possibility not only that a terrorist might somehow become aware of this secret device and search for ways to trigger it, (How secret could if be if it truly exists, and yet we are talking about it here on Techdirt) but also there would always be the small possibility that someone with inside knowledge of the device could become psychiatrically deranged with murderous intent and decide to bring a plane down. After all, such an action would be much safer for the psychiatric patient than going into a theater with a loaded assault weapon.
In short, I call BS.
Now what about your ideas that a consumer electronic device could malfunction and begin emitting radio waves that would trigger such a self destruct mechanism, and further that this is a reason why electronic devices can't be allowed during take-off and landing? If this were true, electronic devices would not be any safer in mid-flight than during landing. Wouldn't a plane falling from 36,000 feet when this 'self-destruct' mechanism inadvertently triggered be more terrifying and horrific than a much briefer fall from 300 feet?
Have you ever had someone say that they tried unsuccessfully to call you when you know you had your phone while in flight, or has it just never happened, so you assume that it can't happen?
Also, did you consider the possibility that the cell carriers may be using tower multilateration, GPS, and/or speed calculations to identify the fact that your cell phone is on a commercial flight, and thereby actively block in-coming calls?
You refer to the idea that the existence of too many potential cell tower connections would be a problem. Hypothetically your cell phone on-board a plane could be switching to a new stronger signal every few seconds.
Even if this did cause problems for the service providers, perhaps from a billing/minutes accounting standpoint, I don't think the actual phone user would have a problem.
It should be observed however, that if the service providers WANTED to make this possible, it would be easy to control frequent tower switching with programming in the phone which would limit the frequency of switches when multiple connections are present. Think of the way your thermostat prevents frequent on-off cycling by being programmed not to immediately switch on the furnace just because the temperature has dropped one degree below target.
**Bonus Patent Idea**
It would even be possible for software to go beyond time delay limitations and address the issue in a more sophisticated way by using the phone's position and speed to calculate the flight vector and predict the best tower to switch to next in a way that would reduce the number of necessary switching events while maintaining optimal signal.