TimothyAWiseman’s Techdirt Profile


About TimothyAWiseman

TimothyAWiseman’s Comments comment rss

  • Feb 17th, 2017 @ 9:25am

    Re: Re: The court can probably compell

    The legal question is not whether it is a foregone conclusion that the government will get access to something. As you say, if it were, the doctrine would at best be a cost saving measure for the government.

    The question is closer to: Is it a foregone conclusion that the items in question exist in an ascertainable location that the person from which they are being demanded can readily access? The name of the doctrine (which has evolved slightly over the years) comes from a line in Fisher v. United states where the Court said "existence and locations of the papers are a foregone conclusion"

  • Feb 17th, 2017 @ 9:18am

    Re: Re: Re: Re: The court can probably compell

    Its more that they are different questions. The question I addressed is: Can the government bring coercive power to bear to force someone to decrypt their own data at all? The answer is in some, but not all, cases yes.

    The next question is what are the limits of the coercive power the government can bring to bear through civil contempt? That is a separate question that involves a completely unrelated constitutional analysis with virtually no overlap with the first question. It also affects many cases not involving decryption since people have been detained indefinitely for refusing to hand over assets for instance.

    Obviously, the government of the U.S. can NOT build a medieval rack and begin stretching the recalcitrant on it until they revealed the password. Also, obviously if they have the ability to use coercive power at all under civil contempt they do have the ability to detain the individual for at least some time if they do not comply.

    The question of how long they can detain that person is a different analysis that would would look more at the Eighth Amendment than the Fourth or Fifth.

    As I said, I have my personal thoughts (I do not think it should be indefinite), but I have not yet done the analysis to bring forth a fully developed argument about where the exact line should be either morally or based on current jurisprudence.

  • Feb 16th, 2017 @ 12:19pm

    The court can probably compell

    I have written about the topic of forced decryption for a legal journal. The very short version, is that under current interpretations they probably can compel a person to decrypt their harddrives under many (but not all) circumstances.

    The all-writs act is not the best vehicle for this, but the foregone conclusion doctrine would allow it in a wide variety of cases. I also argue that this is probably the way it should be. There are times the Fifth Amendment would prevent compelled decryption, but if the prosecution can meet certain circumstances they probably should be able to compel decryption.

    The article is available at: http://moritzlaw.osu.edu/students/groups/is/files/2016/02/11-Wiseman.pdf

  • Jan 20th, 2017 @ 10:32am

    Possibly premature

    This is an interesting idea, and one that should be considered. The problem is that there are too many unknowns to make anything remotely firm. If AI were to develop reactions that are analogous to desires and emotions, then it might, conceivably make sense to treat them as legal persons. Without that, it makes more sense to regulate their owner's than to attempt to regulate them directly. For one thing, without that there would be no deterrent effect to any punishment that might be meant to control their behavior.

  • Dec 15th, 2016 @ 9:04am

    Some sense, but not entirely

    Verizon's explanation here makes sense to me. This could be a very bad time for some people to have the issue forced. But AT&T seems to have found an intermediate approach of planning to issue the update after the end of the holiday travel season. It seems like Verizon could easily follow that course...

  • Oct 19th, 2016 @ 1:16pm

    Popehat covered this as well

    Marc Randazza at Popehat covered this as well at https://popehat.com/2016/10/17/no-it-is-not-illegal-to-read-wikileaks/

  • Sep 30th, 2016 @ 12:36pm

    Re: Re: Just remember...

    Have you considered Gary Johnson? http://www.chicagotribune.com/news/opinion/editorials/ct-gary-johnson-president-endorsement-edit-100 2-20160930-story.html

    You are correct that Donald Trump is a horrible candidate. He has proven himself repeatedly to have misogynistic and racists tendencies, wracked with scandal.

    Hillary is clearly superior to Trump. She has experience and is respectable. But her lack of in depth knowledge of technology and her tax-and-spend plans are unappealing.

    Johnson on the other hand is an experienced and highly trustworthy candidate. He is not perfect and I personally disagree with certain parts of his platform. But I think he is by far the best candidate.

  • Sep 27th, 2016 @ 12:04pm

    (untitled comment)

    Either way, voters are faced with choosing between the devil they sort of know and the devil other devils have been distancing themselves from for several weeks. In both cases, we're going to end up with a president who doesn't have the technical knowledge to deal with today's realities.

    Fortunately, those aren't the only choices. While hardly a computer expert, Gary Johnson does display a level head and a willingness to listen to his advisors.

    As between, Trump and Clinton, Clinton's approach, while too extreme, is still far more reasonable than Trump's.

  • Sep 26th, 2016 @ 12:04pm

    (untitled comment)

    I would hope, however, that the question comes down to delineating what qualifies as embarrassing content and what doesn't, rather than relying on any individual's interpretation.

    No, it should come down to there simply being no right to sue on these facts (at least under American Law. I know little of Austrian law). These were pictures taken by the poster/publisher of the pictures in a place where the photography was entitled to take photographs. The photographs have not been falsified so there can be no defamation.

    There are a few other privacy related claims that could come up, but they require more than the pictures being subjectively embarrassing. They would require something like showing the subject in a "false light" or implying that the subject endorses a particular product or something else which makes these more than a case of innocent childhood pictures the subject now finds mildly embarrassing.

  • Sep 26th, 2016 @ 9:57am


    In the case of the experiment I agree fully and you have said it well, though I will emphasize that only works in an environment where it is repeated.

    The cat toy sellers confuse me slightly more. They are getting exactly the amount of money they expected, even if it came from arbitrageurs rather than traditional customers.

  • Sep 21st, 2016 @ 3:12pm

    Not all candidates support that...

    It remains amazingly troubling that both of the major party candidates for President seem to think that a good response to attacks in this country is to silence people online.

    I agree with this, and indeed all of this post. Still, it is worth pointing out that Gary Johnson is a staunch supporter of free speech and has not proposed anything like this.

  • Sep 20th, 2016 @ 11:25am

    Safe Harbors Are Vital

    I wrote a law review article dealing with the DMCA. While my core point was a technical one about when Willful Blindness should apply, I spent a fair bit of time talking about how important the safe harbors are to allowing the internet to develop. This is something which is well established by numerous commentators and scholars in both the legal and economic fields.

  • Aug 25th, 2016 @ 8:47am


    I never thought of your #2, but you are entirely right.

    I will add another reason, one closely related to Chatam's but not quite the same. You will never face the choice with certainty. The real world is too unpredictable for that. Instead, you will face something more like the choice of increasing the chance of killing 1 person by decreasing the chance of killing 2 or vice versa. In that case, choose the one that has the best chance of having no fatalities at all. But, as Chatham points out, even getting to that probabilistic point.

  • Aug 23rd, 2016 @ 9:03am

    Gary Johnson Supports it

    Since you didn't mention Gary Johnson's position, he openly supports the TPP. This is one of the ares where I respectfully disagree with him. But, he has at least said that there are parts he does not like, he just thinks the benefits outweigh the drawbacks.

  • Aug 17th, 2016 @ 8:49am

    Re: I WANT IT (or something like it)

    I would sign up the moment it became available.

  • Aug 8th, 2016 @ 8:09am

    Funny, but...

    Its a funny shirt, but fortunately (at least regarding the upcoming American election) we have more than two choices. Personally, I support Gary Johnson and think he is a genuinely good candidate instead of the lesser of the evils. Dr. Jill Stein is also running.

  • Aug 3rd, 2016 @ 8:22am

    (untitled comment)

    Augmented Reality games can easily lead people to be where they should not go. I wrote about this for a law firms blog not long ago: http://morrislawcenter.com/2016/07/pokemon-go-and-park-areas-for-children-only/

    But, as Karl says here, this is not Niantic's fault. The players are responsible for knowing where they should and should not go.

    Personally, I would find people knocking on my door asking to go into my back yard after Pokemon annoying, but it is not a tort by the person or by the game maker.

  • Jun 17th, 2016 @ 8:54am

    Re: Never.

    Thank you for the insight.

    I disagree with your assessment regarding self driving cars. Even if we insist on maintaining driver responsibility, we could have mostly self driving cars with requirements that a driver override be available and that drivers remain alert (technology could even help enforce that). I also suspect that as self-driving technology develops we will become more willing to at least lessen the need for driver responsibility.

    I think your assessment of flying cars on the other hand is spot on for the foreseeable future and appreciate having an experienced pilot lay out the reasons.

  • Jun 8th, 2016 @ 8:49am

    IOT is overhyped

    While some internet of things items have proven themselves useful (my wife loves the Ring, an IOT doorbell, and even I see value in it), most of them are overhyped. I have yet to see a compelling (or even really any) use case for an internet connected fridge or tea kettle.

    I do see a use case for an inernet connected thermostat, but the price for a Nest was far too high to justify its fairly small value.

    There is a place for IOT, but I think (at least for the near future) it is much smaller than many companies want it to be.

  • Apr 28th, 2016 @ 11:44am

    The fifth amendment

    As I mentioned in a comment in the linked ArsTechnica piece, whether this violates the Fifth Amendment is not a simple or clear question. I have written a law review article directly on this topic for I/S which is available here

    The very short version is that while the Fifth Amendment is clearly implicated, the Fifth Amendment has several nuances and exceptions. One of those exceptions is the Foregone Conclusion Doctrine. While not quite a clear cut case, this case seems to fit within that. Law Enforcement has evidence that these are his drives, that he is capable of decrypting them, and they have some idea of what at least some of the contents they will find are. Courts have upheld the use of the foregone conclusion doctrine several times, and I argue in my law review article that it is proper to use that doctrine so long as they can actually meet its requirements.

More comments from TimothyAWiseman >>