How The Rule Of Law Is Actually Undermining Human Rights

from the pay-attention-to-the-exceptions dept

This is from a little while ago, but I just had a chance to listen to a fascinating and eye-opening lecture by Professor Conor Gearty at the London School of Economics (LSE posts many of their public lectures online as podcasts, some of which are really excellent). The lecture was officially entitled: Human Rights, Security and the Rule of Law after Snowden. It caught my attention for a variety of reasons, including the inclusion of Snowden, but the bigger point of the lecture actually had very little to do with Snowden. It’s really about the gradual and systematic undermining of human rights by human rights laws and regulations.

Gearty’s point is a powerful one: lots of people quite reasonably push for human rights laws and regulations — but what gets left ignored are how those laws are systematically being used to actually deprive people of human rights. He focuses on UK law (for obvious reasons), but we’ve seen similar patterns elsewhere. The idea is that “the rule of law” is being used to chip away at actual human rights, often by setting up either exceptions to human rights law or by setting up laws that fundamentally violate human rights but which paper it over by having a process for (often secret) “review.” So, in the US, for example, think of the FISA law, which set up the FISA court, which has rubber stamped all sorts of questionable invasions of privacy. Gearty points to similar situations in the UK, noting that when challenged, these are all deemed to be perfectly “consistent with human rights” because the officials who do it are “complying with the law.”

In fact, this kind of thing goes back to the point that John Oliver raised soon after the Snowden disclosures. He noted that the disturbing thing wasn’t that the surveillance broke the law, but that it didn’t break the law. In some ways, there are also parallels between this and things like the requirement for “privacy policies” for websites and apps. The laws basically require the policy, but not much actual privacy. And thus, sites actually have incentives to write a policy that says they won’t respect your privacy, because that’s much harder to violate. Thus, when they do violate your privacy they’re still “within the law,” even if the privacy violations are themselves questionable.

The larger point here is really about this concept of “the rule of law” and how it can be used to actually undermine what’s right. You create “rules” that can be followed, but which allow for things that, by any common sense analysis, are abusive and troublesome, but you insist that they’re fine because they’re “lawful.”

At the end, Gearty points out that he’s quite fearful that this kind of “rule of law” attack on human rights is being extended in a manner to target and attack the poor as well. He gave this speech a few weeks prior to the events in Ferguson, Missouri that we’ve been discussing recently, but it’s not hard to see the parallels there. The “rule of law” has been used in Ferguson quite a bit over the past couple weeks to justify actions that seem horrific, from killing an unarmed teenager, to teargassing protesters, to wiping out parts of the First Amendment to bringing in militarized police. And the defenders of these programs all point to the “rule of law” as justification.

Increasingly, however, it seems like “the rule of law” is being used as a dangerous and misleading shield for some very corrupt behavior.

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Comments on “How The Rule Of Law Is Actually Undermining Human Rights”

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Anonymous Anonymous Coward says:

Bill of Rights

Would there be any benefit if there was a constitutional amendment that incorporates the Bill of Rights into the constitution (for those that don’t know, it isn’t now)? Unfortunately, this would probably be written by a bunch of lawyers whom will make things so obtuse that it might backfire, but would it be worth a try?

That One Guy (profile) says:

'Is it legal?' vs 'Is it right?'

When the focus is more on if something is legal, with that getting a higher priority than whether or not it’s right, then yeah, you’re going to have problems.

One good example I’ve seen before is ‘Everything the Nazi’s did was legal according to german law at the time, while just about everything the founding fathers of the US did was illegal according to English law at the time.’

If someone, whether person or agency, is more concerned with whether something is legal than right, odds are it’s because what they are doing, or planning on doing, isn’t right.

Trevor says:

Well

It feels like these days, if it isn’t written down, it’s not a right.

People forget that rights aren’t given by the government – you already have them. We consent to the government by giving up rights in exchange for governance.

At this point, the government has flipped it around. It’s only a right if it’s explicitly given.

Example: Fair use. Fair Use is not the exception. When the Constitution was written, Copyright was the exception, and carved out specific limited instances where it applied. Now everyone considers Copyright the norm, and fair use as the specific limited instance where copyright does not apply.

Anonymous Coward says:

Hence the concept of

jury nullification. People have to remember that the purpose of a jury isn’t just to pass judgement on the plaintiff, but to also pass judgement on the law itself. I strongly suggest that everyone browse the Fully Informed Jury Association ( http://fija.org ) and see what your rights truly are. And if you’re ever called to serve on a jury, then exercise your rights.

But unfortunately, the government also knows your rights and as such tends to try to keep things away from juries and if forced to use a jury, it trues to insure the jurors don’t know the true power that they hold.

That One Guy (profile) says:

Re: Re: Hence the concept of

Of course not, the purpose of a trial is not seeing justice done, it’s getting a conviction! /s

I’ve seen this mentioned a few times, and I’m wondering how accurate the claims were, that even mentioning jury nullification is the quickest way to be stricken from the jury pool. Any truth to that?

Trevor says:

Re: Re: Re: Hence the concept of

Yeah, the Judge will argue with you about what you know about it, embarrassing you in front of everyone. If he doesn’t kick you off, the Prosecution / Plaintiff most definitely would. Either way, you’d have to endure 20 minutes of berating and talking-down-to before you were let go, though.

Anonymous Coward says:

Re: Re: Re:2 Hence the concept of

20 years from now, when prosecutors have access to very detailed profiles on jurors gained by the surveilance state, reasonably guaranteing a verdict based on juror character and not on facts, we’ll be wondering how did we let it get so bad

And just to be clear, i dont think ANYONE should have that kind of power, the proportion of damage to ourselves if misused is far to great to even entertain exceptions, however helpfull it may seem, especially if granted in an environment of revenge/aggression/or stupidity

Anonymous Coward says:

CPS - Constitutional rights don't apply

Perhaps one of the worst examples is the routine victimization of children caused by over-zealous CPS officers — people whose sole function is supposed to be to help children.

Like all government agencies, no one wants to admit that they made mistakes, and will instead stonewall and “double down” — putting innocent parties through a bureaucratic nightmare in a convoluted, overly-rigid system in which it’s extremely easy to get in, but extremely hard to get out.

Anonymous Coward says:

The rule of law isn’t the problem. What’s the alternative? Anarchy? Great, now instead of the government being able to murder me with no repercussions, ANYONE can murder me with no repercussions.

When the “laws” (often, just interpretations of the law) ignore the Constitution, can you really call that the “rule of law”? It seems to me that if the law was actually being followed – including the parts where you aren’t allowed to pass unconstitutional laws – this would be less of a problem.

Of course, a country can pass a faulty constitution that allows human rights violations. But they could just as easily pass no constitution and simply be subject to the whims of a dictator.

Anonymous Coward says:

Re: Re:

In the end, whether you have rule of law or anarchy, capitalism or communism or whatever else, the country lives or dies based on the natures of the people who rule it.
Good men give their blood, sweat and tears to make things better for everyone else. Evil men accumulate power and prestige at the expense of everyone else. If a country is ruled by good men, it prospers. If it’s run by evil men, it suffers. Currently, most nations are suffering.

JWW (profile) says:

This is why

The founding fathers new that laws always tended to trod on human rights. This is why so much of the Bill of Rights is worded, “Congress shall make no law.”

Anyone who paid any fucking attention during the 20th century (or studied it) would implicitly understand why human rights laws eventually trample on human rights, there are so many examples to choose from.

Richard (profile) says:

Re: Re:

At what point in history hasn’t this been so?

It’s the age old question “Quis custodiet custodiens”.
In theory the “rule of law” is the best defence against this problem. The reality however is that the corrupt guardians subvert the rule of law for their own purposes. So the problem is not really the “rule of law” but rather that the spirit of the rule of law is undermined whilst the letter is preserved.

Anonymous Coward says:

Re: Re: Re:

If the theory can never be made concrete through practice can it even be a theory? The problem to me seems to be that the structure even exists as a temptation to exploit. The fuel of corruption can’t sustainably burn without an engine. Remove the incentives of evil and evil naturally removes itself.

Richard (profile) says:

Re: Re: Re: Re:

The fuel of corruption can’t sustainably burn without an engine. Remove the incentives of evil and evil naturally removes itself.

A really good point. It has often seemed to me that many of our laws are little more than “criminal business opportunities” – ie ways to make a profit that can only be exploited by people who are prepared to break the law. This is true of drug laws – and also of copyright. As you point out this situation can also exist within government structures.

Brazenly Anonymous says:

Re: Re: Re: Re:

The first and primary function of a government is to prevent all other governments from existing. The idea is to create the least bad government and keep things that way for as long as possible. This is done because all historic cases where there is an absence of government have gone on to produce one.

The second function of government is to consider long term effects and prevent individual actors from depleting necessary resources. This could be done by a non-government agency, but that agency would need to act outside the control of the government, endangering the first purpose. Besides, this gives the government a useful distraction.

The third function is to provide support and aide to the community. Things like copyright, subsidies, welfare, tariffs and such fall into this category.

So long as these priorities remain in this order, the government will serve the people and the system will work rather well. However, the third function has a habit of rising above the first while the second has a habit of disappearing altogether. Thus comes about the crony system of corruption.

Anonymous Coward says:

People aren’t allowed to protest anymore, unless protest organizers file for a “permit” which allows them to protest in a “designated zone” at a “predetermined date and time”.

So there goes Amendment #1 in the US Constitution, freedom of assembly, out the window. US citizens are only free to assemble, if they file for a permit and that permit is granted.

Sounds a lot like China. I guess the people in Tiananmen Square, Ferguson, and pro democracy protesters in Hong Kong. Didn’t get the memo about unauthorized protests violating the “rule of law”.

David says:

Re: Re:

People aren’t allowed to protest anymore, unless protest organizers file for a “permit” which allows them to protest in a “designated zone” at a “predetermined date and time”.

Problem is, it’s perfectly understandable why (some) permits are required. If you have 50,000 people show up, that has massive secondary effects on all the other people around the area (traffic, restrooms, etc), and -somebody- (ie: the police) has to make sure it’s safe for everyone (no people blocking traffic or the ability to get to a store, or in some cases, medical services in the area, assuming the protest wasn’t about any particular such business).

Arranging the time and place it’s going to happen is just polite. Police have to rearrange their work schedules to get enough people to cover the area, someone has to set up all the port-a-potties, etc.

So the basic -idea- is fine, it’s just the specific implementations where things start to get ugly. If you have to have rules to make sure the protest isn’t harmful to the people around, that means you need rules that define what is harmful, which means you have nitpicky situations where you can start denying ‘permits’ and such. And what rules you have to follow based on the size of the protest. And eventually at least some parts of the rules can be applied to any protest of any size because that’s ‘fair’, while using a skewed definition of ‘fair’. Etc, etc.

Basically, the rules start getting made just to deal with the problems of large protests, and then trickle down to start applying to -all- demonstrations. Rules designed for sporadic events start to fail if it starts to become a common event (see lots of stuff on copyright issues). Some control over people you may not agree with starts leading into abusing that power out of spite.

So it’s not just “rule of law”, it’s also “rule of rules” — rule structures that don’t scale well (in the same sense as a shopping cart on your home page not scaling to Amazon-levels of business), and are too focused on specific cases (and entrenched benefits) and details (particularly loopholes or anti-loopholes, plus exceptions) rather than overall purpose.

From an abstract view, the Constitution is an ethics system, and laws are theoretically the morals that that ethics system defines/allows. Finding something unconstitutional means it violates that specific ethical system (as opposed to journalism ethics, or medical ethics, etc). However most people don’t view laws from that perspective, instead simply viewing a ‘law’ as a ‘solution’ to a ‘problem’ (similar to how a beginning programmer views code differently than a veteran software engineer). It’s the old, “finger stopping up the hole in the dike” viewpoint problem — not being able to (or not willing to) see the larger picture. Even the Constitution itself fails in that regard, somewhat. And the laws such as those discussed in this story certainly do.

Religious advocates for ‘bringing morals back’ do actually have a point: that a larger ethical framework is rarely applied, and we’d probably be better off if we had one that was properly adhered to. The problem is that they then want to apply their own personal ethics system, rather than one designed to properly fit the context (just as journalism ethics is not the same as medical ethics is not the same as business ethics, etc).

jimb (profile) says:

You’re just upset because -you- don’t make the laws. When you can afford a few legislators, and can tailor the laws to your own personal benefit, then this isn’t a problem. So clearly, the problem isn’t erosion of human rights directly, its erosion of -your- human rights because you aren’t wealthy enough or gifted enough (meaning ‘gifted’ literally) to have laws tilt in your favor. Were you employed in the security-industrial complex, you’d clearly feel that you can never be too safe, and that a frightened population is an easily managed population. Enough of freedom, keep the public scared and you keep yourself in power.

Whatever (profile) says:

By the time I was half way through this article, I was chuckling and trying to see if there was going to be a moment where the “ha, fooled ya” was going to come out to stop the suffering. It never does, so I have to assume the piece was written in a serious manner.

But who are we kidding? One can only write the article with a straight face if you ignore pretty much everything else that gets supported or pushed on Techdirt on a regular basis.

Much of the popular themes of Techdirt are “because technology allows” and “because it isn’t QUITE against the law”. Many of the concepts championed (from Aereo to The Pirate Bay) live and die on the head of a legal pin, splitting the finest of fine hairs without ever seeming to once consider the more basic concepts of right and wrong.

Students of history will look back and spot all sorts of interesting data points. Watergate (I am not a crook!) shines brightly. The Lewinsky affair (define sex please), Weinergate (are words an issue?), and so on. Even when we find those things to be illegal, we shrug them off because we are unable or unwilling to look at the underlying question of right and wrong.

Snowdon’s “revelations” are nothing more than proof of concept. The law isn’t a wall or a boundry, it’s a single pole driven into the middle of a flowing river, one that everyone has basically flowed around. The law still stands, yet the operations of everyone from the NSA to the camera toting anti-cop people continue, without consideration for the basic concept of right and wrong. It’s all down to legal or illegal.

The biggest issue is that any argument of right and wrong is one that is based to some extent in morals. Mike Masnick has made it very clear that morals have no space in the debate. It’s all about the law. That is certainly in keeping with the reality on the ground as it were, but it’s also a sign of the very basic problems: We do things that we know are wrong, but we do them because nobody is stopping us. Either it’s not EXACTLY against the law, or nobody is coming to enforce the law anyway.

Conclusion is that the real issue is that as humans, as people, we have lost our perspective, personal morals, and personal responsilbity. We graffiti the walls and take everything that isn’t nailed down and glued in place, because nobody is stopping us. That loss of morals is the issue nobody wants to accept.

What the NSA does is immoral, but legal. What Snowdon did was possibly moral, but illegal. Resolve that conflict, and perhaps you may find your answers.

lfroen (profile) says:

Re: Re:

> What the NSA does is immoral, but legal. What Snowdon did was possibly moral, but illegal. Resolve that conflict, and perhaps you may find your answers.

There’s no conflict here. You do what’s moral. And your moral should not be determined by law, but other way around – your law should be determined by commonly_accepted_moral.

That’s why I strongly disagree with “but technology allows” argument: if technology allows something, it doesn’t mean it’s good idea to do so. All military technologies come to mind, total surveillance, massive wiretapping and so on.

Richard (profile) says:

Re: Re: Re:2 Re:

So, prohibiting mass surveillance by NSA/FBI/CIA is bad idea? Search without order is allowed “by technology” – why prohibit it?

AH – you ignore the important words “may” and “naive”.

Simply prohibiting surveillance would not prevent it anyway – that is why it is a bad idea.

Enabling technological countermeasures (eg encryption) is a better approach. Enabling the market to function properly in this area would result in a gravitation towards secure products that would frustrate the surveillance.

Ultimately one has to trust that the universe has a built in bias towards “good”. This could be justified theologically or by evolutionary theory (or both) depending on your philosophical outlook.

If that bias does not exist then :
a) We are stuffed.
b) Where did this “morality” come frome anyway?

Anonymous Coward says:

Re: Re: Re:3 Re:

The universe doesn’t have “good” built-in. It’s a matter of rational organisms trying to find and maximize win-win situations in game theory. That’s why the markets work: they are based purely on the idea that trade is intrinsicly in-the-moment win-win. Moral (rational) thinking extends that beyond single transactions.

Richard (profile) says:

Re: Re: Re:4 Re:

It’s a matter of rational organisms trying to find and maximize win-win situations in game theory. That’s why the markets work: they are based purely on the idea that trade is intrinsicly in-the-moment win-win. Moral (rational) thinking extends that beyond single transactions.

Tha is exactly (one version of) what I meant by “the universe has good built in”.

Thank you!

Anonymous Coward says:

Re: Re: Re:

What the NSA did was immoral, legal according to some statements by presidents and some laws passed by congress, and illegal according to their oaths and the highest law of the land.

What Snowden did was moral because he respected his oath and the Constitution. This is a hard decision when the lesser laws passed by congress and orders from your superior are in conflict, but it is clear which law takes precedence.

Mike Masnick (profile) says:

Re: Re:

The biggest issue is that any argument of right and wrong is one that is based to some extent in morals. Mike Masnick has made it very clear that morals have no space in the debate.

It’s clearly not worth responding to the rest of your post of misleading tripe, but I will respond to this blatantly false mischaracterization of what I’ve said, just in case others are unaware of my actual comments.

I have never suggested that there is no space for morals in any debate. To the contrary, I very much believe that moral aspects are important.

What I have said, is that the purpose of moral discussions is in situations in which someone is likely to be harmed in some manner, you need to determine who is going to get harmed and how much — and that’s a moral question. However, in a specific situation — the copyright debate — IF it’s shown that everyone is better off by a certain solution THEN there is no moral dilemma.

You can read this here: https://www.techdirt.com/articles/20061115/020157.shtml

No where do I say you always ignore morals in all situations. I simply said in that one area, IF everyone is better off, THEN there is no moral dilemma, and trying to insert one is disingenuous.

Separately, I note that economics, by itself, does not take morals into account. It’s merely a description of what will actually happen. That doesn’t mean morals don’t play a role at all — just that they don’t show up when you’re merely looking at the economics. It’s entirely appropriate to then take what the economics says will happen, and look at the moral implications IF there’s a moral dilemma posed (i.e., a situation in which there are winners and losers).

I don’t know why you’ve spent years on this site trying to constantly misrepresent my views, but it speaks volumes about your intent.

Whatever (profile) says:

Re: Re: Re:

I think you need to go back and re-read your comments over the years. Whenever there is a debate about anything that involves morals, generally you dismiss the morals and point to either “the law” or “what technology allows”.

in a specific situation — the copyright debate — IF it’s shown that everyone is better off by a certain solution THEN there is no moral dilemma.

To do that, you have to assume that “everyone” doesn’t include rights holders and a whole class of people who work in that field. By “everyone” you mean “most everyone”, and then you have to ignore the moral dilemma of ignoring certain people to make the majority “happy” in some manner.

Quite simply, there is almost no case where “everyone” is better off. A large percentage may be better off, but not everyone. There is almost always some form of moral issue, because someone always gets hurt or loses something in these cases.

I don’t know why you’ve spent years on this site trying to constantly misrepresent my views

I don’t. I take your views at face value, and typically your “answers” (yes scare quotes) are to point at a collection of posts trying to say that you have said something clearly – when you have not. I can understand why others try to get you pinned down on things, because your most definite of statements on anything generally comes with just enough grey to wiggle out of.

I will also say this: your “outrage” (yes more scare quotes) about my comment here is a perfect example. You ignore the main points, and pick on something else. Why not address the core issue:

Much of the popular themes of Techdirt are “because technology allows” and “because it isn’t QUITE against the law”. Many of the concepts championed (from Aereo to The Pirate Bay) live and die on the head of a legal pin, splitting the finest of fine hairs without ever seeming to once consider the more basic concepts of right and wrong.

The choices in both of these cases are not just barely legal / not quite legal, but also the MORAL questions of right and wrong. Part of the questions here is one of “are we willing to limits the rights of some group to grant more rights to others?”. laws are generally written to lock in and satisfy our needs for a reading of our morals on the issues.

No matter waht, in each case, someone gets advantage, and someone gets hurt. On a moral level, we have to decide if that is acceptable or not. So even in the areas where you say “there is no moral debate” there is ALWAYS a moral debate – unless you purposely want to avoid one. “These are not the moral debates you are seeking” may work on some people, but I don’t generally fall for it.

So, now that you got all in a huff about the wrong thing, would you care to actually address the issues rather than making it personal?

Whatever (profile) says:

Re: Re: Re: Re:

I would also have to add this:

When you speak of benefits, you state them as a proven conclusion. Yet, we are still in the infancy of any change to the way music / movies / books whatever are delivered. We don’t know with any certainty if there is in fact long term benefit, only the short term “people got more stuff” result. We still don’t know beyond a short term feeding frenzy style bonanza if the benefit will remain, or if the benefits in volume of stuff is offset by the loss of quality or desirability.

Anyone can create a lot of stuff. Very little of that stuff is desirable by others. Volume alone does not prove a conclusion of benefit.

So are we better off? A snap or instant judgement on that woudl be on par perhaps with the arrival of a drug like Thalidomide. It was a godsend that all but cured morning sickness in expectant mothers and made pregnancy much more bearable to all. Instant snapshot shows an incredible benefit. There were a huge number of babies born with major defects as a result of the drug who would argue later that the benefits for all did not in fact make us better off in the long run. A very false conclusion could have been reached in the late 50s that was in the long term not true at all.

It’s not all as easy as you paint it to be.

nasch (profile) says:

Re: Re: Re:2 Re:

Yet, we are still in the infancy of any change to the way music / movies / books whatever are delivered. We don’t know with any certainty if there is in fact long term benefit, only the short term “people got more stuff” result.

Are you equally adamant that it’s too early to tell if there’s any long term harm from piracy?

Anonymous Coward says:

Re: Re: Re:3 Re:

Although i can see this debate boiling down to the following:

Mike: “i never specifically said everyone would be better off, i merely posited that if, as a result of the change, everyone were better off, then it would have been worth it and the moral thing to do. Regarding harm: any harm the content creators could endure from the switch would be more than offset the gains from having all works available to them all the time.”

But hey, this is the intersection of social behavior and economics and sciences don’t come any softer than that. Until we can build ourselves a perfect computer simulator of human behavior using perfect models (which of course we can’t because we can’t make perfect models for the same reason we can’t know the answer to these questions without them), we’ll never be able to fully understand either economics or social behavior and the answers to these questions will forever be guesswork.

Whatever (profile) says:

Re: Re: Re:4 Re:

You are correct to the great extent, with one exception. What Mike seems to want to see happen is that the moral issues are ignored after the fact, or that the are dismissed by playing them against a utopian sort of result set that does not in fact exist.

File sharing, for all of it’s “content for everyone” and “history preserved” arguments doesn’t work that way. Piracy generally is current and doesn’t do much to support history. I have done searches before for TV shows that are a few years past their stale date (but well within the piracy window), and those shows just don’t exist. The reality on the ground isn’t the vast sum of human expression easily available to all (infinitely distributed to our benefits), but rather a system for getting the latest movies or TV shows without having to wait for them to be available in market.

So the theory that we are better off in some way falls apart when you realize that the reality on the ground isn’t at all what is used to prop up the arguments. Then the moral issue comes back, because the question doesn’t appear to be sharing culture for the benefit of mankind and much more about getting it RIGHT NOW BECAUSE DAMMIT I CAN”T WAIT ONE MORE MINUTE.

So dismissing the moral argument because everyone benefits really doesn’t add up. The current situation may actually drive a much more difficult problem, where the market for older TV shows (as an example) is eroded by the piracy the occurred initially, to the point where producing and selling compilation or “season” DVDs may not be viable for anyone except the biggest shows. Since the piracy outlets don’t seem to maintain a good back catalog, it could mean that the material is generally less available as a result, and thus we lose benefit.

They process continues, with the reduction in income perhaps leading to choices made on a show to do things in a cheaper manner to meet the bottom line. Do they cut a star or reduce the quality of the sets or storyline in order to stay within their reduced budgets? Is any of that truly a benefit for the public?

It’s the old butterfly effect. It’s almost impossible to account for all of the effects and implications of change. Boldly claiming “benefits for all” while ignoring the moral standards ignored to get there doesn’t add up very well.

nasch (profile) says:

Re: Re: Re:5 Re:

The current situation may actually drive a much more difficult problem, where the market for older TV shows (as an example) is eroded by the piracy the occurred initially, to the point where producing and selling compilation or “season” DVDs may not be viable for anyone except the biggest shows.

The solution seems obvious: reduce copyright terms to something reasonable so there will be interest in preserving those works while they’re still somewhat current. This would also reduce piracy and reduce the “need” for corporations to police their copyrighted works.

nasch (profile) says:

Re: Re: Re: Re:

I think you need to go back and re-read your comments over the years. Whenever there is a debate about anything that involves morals, generally you dismiss the morals and point to either “the law” or “what technology allows”.

Thanks for your plentiful and convincing citations, as always. Oh wait…

Quite simply, there is almost no case where “everyone” is better off.

Speaking economically, there absolutely are ways everyone can be better off. However the copyright cartels aren’t just looking for economic advantage, but control. And if that’s what you’re referring to, then yes control is a zero sum game. But not necessarily what Mike is talking about.

The choices in both of these cases are not just barely legal / not quite legal, but also the MORAL questions of right and wrong.

Yes, and the question is – who is harmed? The evidence is that those who pirate the most also buy the most, so you can’t just point at TPB and scream that it’s hurting the content industries.

No matter waht, in each case, someone gets advantage, and someone gets hurt.

Why no matter what? Why can there never be a situation that allows everyone to benefit? I think the problem is if one group doesn’t benefit as much as they think they should, or don’t get as big a cut as they think they should, they sue. Because let’s face facts, they’re still benefiting like crazy.

Whatever (profile) says:

Re: Re: Re:2 Re:

Yes, and the question is – who is harmed? The evidence is that those who pirate the most also buy the most, so you can’t just point at TPB and scream that it’s hurting the content industries

I always get a giggle when someone points to stuff like this, because it lacks a simple point: How much more would they buy WITHOUT piracy?

The problem in play here is that there are a small percentage of people in the past who had to have it all. They purchased tons and tons of stuff, just to have all the latest records, all the movies, whatever. The evidence cuts both ways, there is great potential that the small percentage of pirates who purchase more than the average would have bought even more without piracy.

Plus most of the time those numbers are easily debunked by the fact that they include all of the population who doesn’t pirate and hasn’t bought anything to drive down the averages. When you limit it to buying consumers, only a very small subgroup of pirates in fact buys more than the average buyer.

Why no matter what? Why can there never be a situation that allows everyone to benefit?

It’s the nature of the game. As an example, as they newspaper business has declined (due to the digital era) many newsstands, magazine stores, and others have folded and gone away. So even as a society we see some benefit by faster delivery of news and the like, there is a group of people who “net” don’t benefit, except that they have more time (and less money) to read the news, because they are now unemployed or have gone broke because their small business failed. Further, the public may have lost the resource and service that these people may have provided.

Even a obvious win isn’t a clean one.

Ninja (profile) says:

Re: Re:

You were doing good despite the initial attacks until this:

Mike Masnick has made it very clear that morals have no space in the debate. It’s all about the law.

And then you go for a generalization:

We do things that we know are wrong, but we do them because nobody is stopping us. Either it’s not EXACTLY against the law, or nobody is coming to enforce the law anyway.

So let us clear it up from here. First of all you and other trolls are the ones that usually cry “THE LAW IS THE LAW”. That said, if you remove laws against murder tomorrow sure there will be a portion of rotten human beings that will take advantage of it to score some kills but would you start killing just because there’s no law against it? If you would then seek psychiatric help asap.

Conclusion is that the real issue is that as humans, as people, we have lost our perspective, personal morals, and personal responsilbity. We graffiti the walls and take everything that isn’t nailed down and glued in place, because nobody is stopping us. That loss of morals is the issue nobody wants to accept.

There is indeed a general issue with ethics, honesty and somewhat morals. However you are defining moral based on your definition. As an example not all graffiti is dirt or bad, there’s a lot of art out there and messages against corruption etc etc.

Also you seem to be conflating morality with social acceptance. Society has decided that it’s ok with marijuana, file sharing and others even though a good portion will not engage in those (yet) because they find it somewhat morally questionable. You see, morals are very subjective things. A small group of copyright holders think they are morally entitled to everything and in your view a huge group of file sharers are exactly like that. Who is right? I’m inclined to say that file sharers are mostly in the right even though there’s a subset that couldn’t care less but you disagree. Whose morals are right? Mine? Yours? That’s why morality should be left out of such discussions as much as possible although there is some common ground where society decides it’s ok to go with it. Taking Snowden as an example, society decided it does not agree with surveillance. Society has agreed that Human Rights must be respected and it includes privacy there.

So there it is. The conflict will not be resolved easily.

Whatever (profile) says:

Re: Re: Re:

Society has decided that it’s ok with marijuana, file sharing and others even though a good portion will not engage in those (yet) because they find it somewhat morally questionable.

You need to correct that with “some parts of society”. The issue here is with most situations, when you break things down, not every group or every segment of society is in agreement. For people under 25, as an example, weed and piracy may be acceptable. Yet an older segement of society may approve weed but not like piracy, or so on.

Whose morals are right? Mine? Yours? That’s why morality should be left out of such discussions as much as possible although there is some common ground where society decides it’s ok to go with it.

You almost got the issue, but you let it slip away. You miss the point that moral issues in part depend on who you ask. It’s the old looter in a riot question, which is will someone do something under the cover of a riot that they would morally object to otherwise, or refrain from doing?

If you ask a moral question of only prison inmates, it would differ from the answers of church goers. If the number of inmates is larger than church goers, do we immediately declare the law an ass and make robbery legal, because a simple majority of people think it’s okay?

Do we set the bar based on people who do not have morals?

Society has agreed that Human Rights must be respected and it includes privacy there.

Your “society” may think so. Yet, if you go survey people in China, you may not get the same answer. Ask the people in North Korea, you might get a different answer. Ask the people living on a Kibbutz, and you might get a third answer. Human rights too often is expressed in terms of “how the US defines human rights”, which is based on personal rights over group rights. In other places, the balance shifts in the other direction, where the rights of the society as a whole are often placed before the rights of the individual. The benefits for Singapore in not allowing chewing gum is perhaps better than the personal human right to chew gum.

As an example not all graffiti is dirt or bad, there’s a lot of art out there and messages against corruption etc etc.

You are correct. However, most graffiti requires that one ignores the rights of a building owner or a property owner to decide how their property is to be used. It denies the benefit to the public as a whole on how public space is used, and puts the desires and wants of the individual above the benefit and enjoyment of the society as a whole. Should a citizen be forced to ride in public transit like the NY of the 70s with so much graffiti that you couldn’t see out the windows, and wouldn’t dare sit on a seat for fear of wet paint? That is a situation where the lack of morals of some (in regards to respecting property rights and public spaces) harms the rights and enjoyment of others.

It’s never a simple question. My point generally is that the lack of personal self control is a real issue. The justification for that lack of self control is the “it’s not precisely against the law” or “the law doesn’t cover it” or “we think we can do it based on a technicality”. Everyone pushes to the maximum, including the NSA and every other agency around. The NSA isn’t doing anything more or less wrong than the graffiti artist. They are both not respecting your personal rights because they believe either it’s legal, justified, or nobody is going to do anything about it. The lack of a moral compass to say “it’s just wrong anyway” and a little self control (personal and institutional) is fundamental to the near collapse of Western society.

Ninja (profile) says:

Re: Re: Re: Re:

You need to correct that with “some parts of society”. The issue here is with most situations, when you break things down, not every group or every segment of society is in agreement.

Sure, I thought about it. And that 25-yr-old range will dominate later so it will inevitably be most of society.

It’s the old looter in a riot question, which is will someone do something under the cover of a riot that they would morally object to otherwise, or refrain from doing?

Which are usually the minority. Read it again: the looters are the absolute minority. Good try though.

However, most graffiti requires that one ignores the rights of a building owner or a property owner to decide how their property is to be used.

True enough. Then again there’s no change if some laws aren’t broken. And again you are acting as if the majority of the people engage in destructive graffiti.

My point generally is that the lack of personal self control is a real issue.

Again, it’s YOUR opinion. Others may think things are ok and actually that we are expected to exert too much self control.

The lack of a moral compass to say “it’s just wrong anyway” and a little self control (personal and institutional) is fundamental to the near collapse of Western society.

Oh boo, the doomsday is near! Really, you are always talking about morals but morals are completely subjective. My grandma thinks women have turned into whores and the world is doomed because reasons. She sees the fight for gender equality and sexual emancipation of women as an absurd. There were those that thought freeing slaves was an absurd. So there is that. Try to think outside of the box.

Whatever (profile) says:

Re: Re: Re:2 Re:

And that 25-yr-old range will dominate later so it will inevitably be most of society

yes, and their place as the under25s will be picked up by another group who wants something different. They are never actually right, and they are never actually “everyone” or “society” as a whole.

Read it again: the looters are the absolute minority.

The looters in the the minority, but the majority (or “society”) turning a blind eye as they do it is the enabling factor. Many more people will be looters in a riot than they would by themselves on a sunny day on a business commercial street. It’s human nature. internet piracy runs about the same, we will pirate only by we would never rip a CD out of a musician’s hand (or duplicate it by ripping open a jewel case in a store and stuffing it into your laptop).

And again you are acting as if the majority of the people engage in destructive graffiti.

No, the minority do the graffiti, itself, the majority tolerate it, ignore it, or are too scared to do anything about it. The taggers basically use a minority position to force the majority into their way of doing things.

you are always talking about morals but morals are completely subjective.

Morals are subject along the edges, but generally should be pretty clear down the middle. Don’t take from others. Don’t violate other people’s rights. Don’t violate other people’s property… these are basic things. The problem these days is that the basic things are lost in a mindless looter in a riot mentality of do whatever, you won’t get caught.

Try to think outside of the box

When I think out of my box, then I have to take your box. Are you willing to give it up? What if I just go there anyway and leave you no box to think in? Is it fair?

JaDe says:

Re: Whatever

By the time I was half way through this comment, I was chuckling and trying to see if there was going to be a moment where the “ha, fooled ya” was going to come out to stop the suffering. It never does, so I have to assume the comment was written in a serious manner.

But who are we kidding? One can only write comments like this with a straight face if you ignore pretty much everything Mike writes on Techdirt on a regular basis.

nasch (profile) says:

Re: Re:

Watergate (I am not a crook!) shines brightly… Even when we find those things to be illegal, we shrug them off because we are unable or unwilling to look at the underlying question of right and wrong.

Watergate was shrugged off and nobody was very concerned about whether it was right or wrong? The questions are, what is Whatever smoking, and how long has he been smoking it?

The law still stands, yet the operations of everyone from the NSA to the camera toting anti-cop people continue, without consideration for the basic concept of right and wrong.

With the implicit assumption that recording police doing their jobs is wrong (not only wrong, but “anti-cop”), even if it’s legal. Also implying that it’s on the same level as what the NSA has been up to. Nice.

John Fenderson (profile) says:

Re: Re: Re:

“Watergate was shrugged off and nobody was very concerned about whether it was right or wrong.”

Well, the government pretty much did, yes. Ford pardoning Nixon to put the whole issue to rest was a critical blow to our nation. He specifically said that he was ignoring questions of right and wrong in favor of “healing”. In doing so, he single-handedly set the stage for allowing all the abuses performed by subsequent presidents to happen without fear of serious repercussions.

Whatever (profile) says:

Re: Re: Re: Re:

Thank you John, you got the point exactly. The fact that Watergate didn’t lead to much other than Nixon resigning and the US getting stuck with Gerald Ford for a couple of years is the real issue. It should have totally killed the two party system, and instead it just caused them to build bigger fortresses and work harder to cover up their dirty tricks.

Uriel-238 (profile) says:

"The law's the law" and secret interpretation

Usually the expression is heard with a Texas accent “the lawr’s the lawr.” which gives voice to one of the most basic human biases, that law by fiat is particularly sacred as a nod to authority, the presumption being that those in authority have been appointed (by the people, by God, whoever) to be a wise guide to the rest of us. Of course it breaks down when kings are not so wise (see Joffrey on the Iron Throne)

Interestingly, American democracy was supposed to be a step away from the feudal divine right of kings towards government by the people. Our framers, however, expected people to stay knowledgeable about their own best interests and vote according to them. We’ve since learned they do neither. And we still hold enshrined law as sacred even when it is ridiculous.

But regarding enshrined law, we’ve already seen how people in power with resources of counsel can nullify or even reverse the intent of law by reinterpreting the letter. Yes, we hear arguments all the time that (for example) the NSA mass surveilance program is legal, as if that is an argument that it is righteous (Mass surveilance is one of those science-fiction tropes commonly used to demonstrate a given society is a dystopia). What it really shows is that law cannot be trusted, nor can people in power be trusted to follow the law but rather reinterpret it to their own ends, if allowed to do so.

Napoleon Bonaparte as emperor decreed that not even he was above the law, and that the emperor must be held equally accountable as the lowliest street thug in order for there to be a just society. When the law is ruthlessly arbitrary to those at the bottom, while completely malleable to those at the top, it’s evident we’ve lost sight of this critical notion of human equality.

Maybe we need to make our laws clear enough that a computer can delineate what is right or wrong, and make the definition of the wording impenetrable. Given people lie all the time on the congressional floors, though, it’s already clear that even enshrined law does not apply to our ruling class any more than it applies to law enforcement.

Never has it been more clear that we’re a multi-caste society.

Anonymous Coward says:

Has anyone ever had a discussion of rebuilding the ethical/legal structure from the ground up, as if you were creating a framework API (a la .NET, Java, etc)? Something that rigorously defines the axioms and ethical parameters, maintains internal consistency, and understands principals like Don’t Repeat Yourself?

I see tons of journalistic text spent on this horrible thing or that horrible injustice or some greedy perversion of the law, yet I never find more elaborate, abstract or fundamental discussions. There’s historical stuff like the Federalist Papers; where is a modern place to really delve into that?

(There’s probably some forum somewhere that discusses these things, my searches have never found it.)

GEMont (profile) says:

Re: Re:

“Has anyone ever had a discussion of rebuilding the ethical/legal structure from the ground up…”

Um, there’s a serious problem here with this idea and its probably why you have found no place where its discussed.

You see, before you can replace something, you have to first realize and admit that its stopped working – not bent or twisted, but actually completely broken.

The kind of broken that voting another Corporate Clown into office will not fix.

The kind of broken that necessitates replacement, not repair.

Since nobody in America is yet willing to admit that their God Blessed System of Law and Order “Can Ever BE Broken”, nobody has even considered the idea that it might need to be repaired, let alone replaced in its entirety.

However, I would like to encourage you to start precisely the sort of movement you describe and attempt through blogs and perhaps a website, to enlist the aid of others in the endeavour.

If nothing else comes of the effort, at least you will get to meet some of the people and their henchmen, who are currently hard at work abusing the system they helped to break, as it won’t take them very long before they notice and try to put and end to your effort.

It is an extremely patriotic and somewhat dangerous endeavor, but extremely educational, as such ventures go.

GEMont (profile) says:

Golden Rule: Those with the Gold make the Rules.

“Increasingly, however, it seems like “the rule of law” is being used as a dangerous and misleading shield for some very corrupt behavior.”

Well, I’ll be damned!

If this kind of clear thinking keeps up, pretty soon people will start to realize that:

When Crooks Write the Laws, Only the Innocent need Fear the Hand of Law Enforcement.

Now if we could just get Americans to admit for once, that…

It Can Happen Here, And It Has Indeed Happened Here.

OK, you’re right. That is far too much to expect from modern Americans.

The fascists will probably have to start shooting them in the streets first… oh wait, the militarized cops have already started doing that years ago….

I guess the only way that Americans are ever gonna be able to open their eyes, is after the fascists declare martial law and put their sorry asses in work camps, or to put it in simpler terms, after its too late.

C’est la vie eh.

GEMont (profile) says:

Re: Golden Rule: Those with the Gold make the Rules.

Perhaps a slight addition to the above is in order, considering recent events.

Martial law need not be declared if something else that accomplishes the same general result is available. I had naturally assumed that the phony “terrorist” card would be the means of takeover by the fascists, but the news is now filled to overflowing with the “imminent threat of a massive Ebola Epidemic spreading uncontrollably across America.”

In my experience, continuous and massive news coverage is always designed to create fear in the public, so they will approve government atrocities claimed to be for their protection, such as the recent spate of ISIS/ISIL newsbytes which preceded the Government’s announcement of its New War Plans (same as the old war plans) and escalation of drone attacks in the middle east. ISIS/ISIL also conveniently offered the Federal Government the excuse to Not “bring the troops home”, as promised.

It is however, altogether possible that the new CDC patented Ebola(TM) Epidemic could actually be more than just a new way for the Petro-chemical Pharmaceutical Industry to make a couple trillion bux from the sale of the New CDC patented Ebola(TM) Inoculations, now rolling off the conveyor belts of most of the big pharma-phactories.

If the Government can convince the American Public that this is indeed a Kissinger-type “Threat From Beyond”, that necessitates mass forced inoculations and mass forced quarantines, then they won’t have to declare martial law at all.

With a Killer Bug on the loose, they can purge the whole country of every non-conformist, rebel, and dissenter with high precision and perfect plausible denial, leaving naught but the sheep and the broken, as future slave labor.

Just saying…..

GEMont (profile) says:

Re: Re: Re: Re:

I misunderstood your statement. I thought you were stating that laws which are not designed to protect human rights were technically not laws.

My response was to inquire as to the label that should be used to describe the library of “legal rulings” created by the myriad rulers of city-states and nations over the vast majority of human history, who do not consider human rights beyond their own, to be worthy of legal protection.

My apologies.

Uriel-238 (profile) says:

Human Rights

Human Rights are generally enabled through reciprocity, but only as far as a given person’s top hundred favorite people. Law prevents Kentuckians from killing New Yorkers and vice versa, or more locally, Giants fans from openly waring against enthusiasts of the As.

So when law is only selectively enforced, or law has dubious exceptions (e.g. in Kentucky it’s still legal to fire someone for being gay) then reciprocity tends to fail as well.

And with the rate that we hate poor people they’d starve or turn to crime if we didn’t provide.

So law and the enforcement thereof are the last line of human rights, so incomplete or ineffective legal systems can be measured by the number of human rights violations they permit.

John Fenderson (profile) says:

My summary

While the rule of law is critically important, it’s also very important to recognize that rigid adherence to the law to the exclusion of all other factors is antithetical to the notion of justice.

Our legal system is even supposed to recognize this. It’s one of the major reasons that we have judges. A big part of their job is to consider all the factors in a given case, not just the written law.

GEMont (profile) says:

Re: My summary

Does anyone understand the mechanism behind the near impossibility of repealing a bad law?

It appears as though, the worse the law turns out to be, the harder it is to remove it from the books.

I find this odd because as far as I can tell, the removal of a law is not really all that difficult or involved and laws can be and are removed easily in many cases.

Is there a natural/simple reason for this?

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