Re: Re: Re: Re: The "Good Faith" exception should go away
Good faith was originally created to overcome the overly stringent rules the courts were imposing on LEOs. An example taken from a story I read:
Cops got a warrant to search an apartment. While searching it, they passed through a door that, unknown to them, lead into the adjacent apartment. Evidence found in the adjacent apartment was thrown out by the court, even though the error was inadvertent.
That's what it was for originally, inadvertent error. But it's been steadily expanded, first to not-so-inadvertent errors, then to presumptions that the law permitted an action later found by the court to be not allowed and so on.
The latter is the case here: the DOJ presumed that they could bend rule 41 to permit a warrant to be issued covering an unknown jurisdiction. Nope, can't. But, gee, they were really trying it in good faith, weren't they?
This case is very gray: to me, it's hard to discern the good faith, but hey, free to disagree, right? And it probably doesn't really matter in this case because SCOTUS is changing rule 41, to allow for situations like this, in what appears to me to be a reasonable change.
But if rule 41 wasn't changed, FBI/DOJ would continue doing the same thing under good faith, in more cases: they'd change some jot or tittle in the warrant process each time, then bring it before the same judge...and he'd grant the exemption again.
Now go back to the apartment story again: suppose the connecting door has a big sign on it saying, "Apartment 109". The cops would just say, "We thought it was a joke," and *bang* exemption.
Basically, good faith has been watered down where it prevents neither repeated nor deliberate rights violations.
Wow. Only 1-in-178, huh? Here I thought the communist countries were big into propaganda. But we're totally disgracing them. I mean, what are we up to, now, about 1-in-15? And, very cool, some of it is even done by the government.
The good faith exemption originally had a good purpose, but like so much else, it has been perverted by the government.
The problem is that the government doesn't "learn" from its "mistakes". Okay, good faith in this situation, right? Next week, the same agents, the same prosecutor bring "the same case" before the same judge, as a new case. Agents and prosecutors aren't learning? Violating rights wholesale? Rejected, right?
Nope, same exemption.
Good faith has no memory. The government can use the same excuse, in the same circumstances, over and over and over and never "do (it) right."
At the very least, "good faith" needs to develop a memory of past wrongdoing.
There was a day, when journalism was king and the government and corporations trembled before it. But the journalistic bastions of yesterday are gone, replaced by the boot-licking propaganda mills of today. Facts are also long gone, replaced by self-interested fables taken gratefully from corporate or government press releases and reported with wide-eyed earnestness.
I would rate this one as hot pink with a tendency to go fuchsia and maybe to lava red (is there anything hotter, naturally?).
Not on Earth. But I would suggest maybe "solar yellow" and "nova white" as levels. Especially the latter, since the nebula resulting from a nova is reminiscent of the spreading of a really good Streisand.
As of the filing of the motion, the court effectively requires that the evidence not be spoiled, everything frozen, until the judge issues a ruling on the motion. (That is necessary because otherwise everyone would simply burn the evidence the moment a motion is filed.)
The article is quite clear she made the change after the spoilation motion was filed.
The intelligence agencies despise criticism--destroy the source if they can--hence this bill to take even the criticism away. But you have to realize that eliminating PCLOB entirely would have as much effect as lifting a teaspoon of water from the ocean; then you'll understand that eliminating their criticism of particular programs hardly matters.
Sarbanes-Oxley is pretty toothless, though. Outside of Arthur Andersen, when is the last time you actually heard of a company getting more than a toe-tap for destroying evidence? And it's pretty easy to get around legally: "Your honor, we have a data destruction policy. It was accidentally destroyed pursuant to that policy." In worst case, punished by a fine amounting to about 0.05% of the CEO's annual salary.
Then there's the government. What's the latest we heard? Oh, right, CIA "accidentally" destroyed a document it was ordered to keep. Too bad, think they'll be punished? (Ha, ha.)
Destruction of evidence pretty much matters only if you're a peon. Corporations and bureaucracy thumb their noses at these rules and orders, all the time.
Google is 100% aware and knowledgeable of the specific bad activity of the Pirate Bay, etc.
No reason for them to be indexed at all.
If it were just Pirate Bay, I'd have a harder time disposing this argument. But it isn't, not really, because you said, "etc."
No, you're arguing for a world in which an IP holder can accuse a website of stealing a song and the website is immediately and utterly destroyed--cut out of the internet. No evidence, no defense, no trial, no conviction, no appeal; just the pointing accusatory finger and then the death penalty.
Contrary to your position I'd argue that they are much better off presenting as strong a defense as needed, spending considerable resources if needed to make it clear that they are willing to do so, and thus discourage others from trying the same to bully them into keeping content down when a counter-notice has been filed.
Oh, I agree, they'd be much better off presenting a strong defense.
But corporate bean counters are prone to argue for the cheap solution; and hand-wave "better off."
What is the greatest risk to YouTube: people like Flores suing? Or NYU (and other "big content" providers) suing again and again and again?
Yes, the dismissal for the case against YouTube will make the case relatively inexpensive--NYU will win no award. But it will cost YouTube lawyer hours; and at $600+ per, those are not cheap.
Suppose such lawsuits are filed regularly by NYU and others. That would tend to discourage the restoration of content after the filing of a counter-notice. Such restoration is not mandatory under the DMCA. For example, there have already been complaints that YouTube sometimes refuses to restore content after receiving a counter-notice; due to contract requirements.
In this specific case, it is already likely that the easy settlement would involve YouTube contracting to discontinue content restoration after an NYU DMCA. If enough big content providers follow the example, perhaps non-restoration will become universal policy.