Tanner Andrews’s Techdirt Profile

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  • May 27th, 2016 @ 6:29am

    Injunction Not Granted, says Original Article

    At this point, the injunction doesn't appear to have been granted

    It happens that "muckrock" disagrees with you, and claims that they have are subject to such an injunction. Sure, we all know the trial court got it wrong. Most of us also recall that prior restraint is generally disfavored in the U.S.

    The good news for the smart meter company is that the Muckrock website appears to have been created by a genius web developer, so it renders in such a way as to be absolutely useless. Someone thinks they know way more HTML than average.

    In the future, they should not be allowed anything more complicated than wet string. In the mean time, however, when the injunction is reversed, the meter company will have the consolation of knowing that the documents are still made largely inaccessible.

  • May 22nd, 2016 @ 6:05pm

    Re: Society disrupted by technology.


    We as a society will have to learn that everyone makes mistakes. Everyone has pasts. Everyone has teenage nudes on the web somewhere.

    Not quite. Some people are so old that their teen years had passed long before car phones had cameras, and taking actual photos on actual film was a much bigger deal.

    It did not tend to happen as often as kids taking improper pictures of themselves happens today because the barrier to entry today is so much lower. Of course this does not stop state's attorneys from treating it as being every bit as much a problem as it would have been when they were born.

    The results are sometimes silly: a kid who takes a picture of himself is now a felon, and also the victim, and, yes, the law does appear to be an ass.

  • May 18th, 2016 @ 1:45am

    Congress can Ask Questions of Anyone, But May Not Receive Answers

    There is a newspaper downstairs from my office. They have a web site. Do you really think that Congress can ask them questions about how their stories are chosen?

    Now try to distinguish Facebook, Fox, &c., in some First-Amendment-neutral manner and founded on something within the power of Congress to regulate.

  • May 8th, 2016 @ 7:48pm

    Re: Re: Warrant canary


    A court could issue a secret warrant that includes a prohibition against triggering the warrant canary

    I would have serious doubts on this account. The govt may now have arrogated to itself the power of prior restraint, but the power of compelled speech seems to cross a line that has not yet been entirely cleared.

    The govt may be able to command you to not say that you disapprove of producing ammunition to be used against Russian revolutionaries, Abrams v. U.S., 250 U.S. 616, but it has a harder time compelling you to endorse it. Compare Minersville School Dist. v. Gobitis, 310 U.S. 586, with WV State Board of Educaiton v. Barnette, 319 U.S. 624.

    A little more recently, Wooley v. Maynard, 430 U.S. 750 largely rejected the idea of compelled state-supplied speech. A requirement to say ``no warrant offensive to owner's principles'', in the case that the person in charge wanted to remove the visible warrant canary, would be hard to distinguish from any other state self-endorsement requirement.

  • May 3rd, 2016 @ 4:35am

    Potential Unpleasant Surprise

    What happens if a non-student sees the post and redistributes the offending art, say, in a web forum? Are the school attys going to go after that web forum? I see two potential answers to this question: they do, or they do not.

    If they do not, then their claim against the student suddenly looks less viable. If the student finds out, he may revive his instances of the art, as well, on the theory that the mark holder (if such the school be) has abandoned its claims.

    If they do, they run the risk of running into real lawyers who happy disassemble them and leave the pieces beside the road for rubbish collection.

  • Apr 30th, 2016 @ 12:17pm

    Re: [sane as providing voice sample]


    This is the same as when you're ordered to provide a voice sample to police, a blood test if you're suspected of driving under the influence or any other such requests.

    Not quite. A voice sample is not testimentary, though if the sample required was you saying ``I did it and am guilty'' there might be an argument. The blood sample is under the somewhat dubious ``implied consent'' doctrine.

    On the other hand, giving the decryption key is testimentary. It provides a statement from you that
    • this is your device
    • it is under your dominion and control
    • you have knowledge of the content of the device
    • you are responsible for that content being there


    Normally self incrimination is not required. Obviously in the state wherein our defendant finds himself, the law is different. Caveat: I am not licensed in his state, probably cannot spell its name correctly, and may be insufficiently familiar with the case law applying the US Fifth Amendment to Federal prosecutors and to the northern states through the Fourteenth.

  • Mar 28th, 2016 @ 12:29am

    possible consumer confusion

    Space City

    Surely they mean Huntsville or Titusville.

  • Mar 6th, 2016 @ 11:16pm

    Re:


    I thought we'd finished with imprisoning debtors.

    Not in Florida, anyway. Kobayashi v. Kobayashi, 777 So.2d 951 (Fla. 2000).

  • Feb 17th, 2016 @ 6:52pm

    Re: Re: Re: Re: RICO


    Do you think the IRS knows it's misapplying the law, and is attempting to deceive its targets into thinking that it's not?

    That would be a fair conclusion from the stated facts, which are that
    1. depositing more than $10K in cash without extensive silly paperwork is illegal
    2. Store avoided depositing more than $10K in cash thereby avoiding silly requirement
    3. Deposits flowed naturally from store's business pattern
    4. IRS attempted to punish them by taking their money despite being aware of these other things

    So, yeah, I'd say they are culpable.

    Is it fraud? Well, fraud requires a misrepresentation of material facts, intention that the other side rely on the misrepresentation, and the other side relying on those facts, to their detriment. No doubt there was a mispresentation of material fact, to wit, the claim that they reasonmably could seek forfeiture. The other side was intended to rely on it, in that the hope is for a default or court victory letting the IRS keep the money.

    The other side did not rely on the false representations. Instead, they fought. From that I conclude that this element is not met, and there is no fraud.

    That does not mean the IRS is blameless. Far from it, they have acted reprehensibly. Were they not working for the govt, the IRS attys would be subject to bar discipline for deliberate false representations to the court.

    What we call ``fraud upon the court'' is not the same as an actionable fraud. In US attorney offices, I expect it is more in the nature of standard practice than anomalous acts by rogue employees.

  • Jan 26th, 2016 @ 6:33pm

    The Mention of Trademark is Nominative Use

    There is no problem in using a trademark to refer to the vendor or product covered by the trade mark. If I refer to a beverage as Coca Cola, because it is a particular product of a certain company, I don't have to disclaim or otherwise misdirect my audience.

    I can even use the mark to criticize the company or its product. If I say ``Coca Cola is inferior beverage now that the skunks in Atlanta no longer include the ingredient for which the product was named'', there is no need to stick the little ® in there.

    For the same reason, #OscarsSoWhite and the users of the hashtag need not disclaim. They are using the mark to discuss the product to which the mark refers.

  • Jan 9th, 2016 @ 10:46am

    Due Process May Be Missing

    Due process requires, at a minimum, notice and an opportunity to be heard. If the govt can present secret evidence to the judge without allowing review by the person to be gagged, then the person being gagged has no notice of what he is to respond to.

    Without notice, there can be no due process.

    A judge who goes along with such a procedure is a very poor judge, indeed, because his actions lead to disrespect for all the judiciary. The judicial system is expected to respect due process, indeed, process and procedure are its hallmarks. Discard these, and you are left with a political hack in a black robe with a sinecure.

  • Dec 16th, 2015 @ 8:33pm

    Re: Here's some legal guidance, free of charge


    If what you are doing is questionable enough that you have to go to a lawyer, then don't do it.


    I will ignore transactional work, such as drawing complicated contracts. I doubt that this is what you had in mind.

    You probably meant that if you have any question about particular contemplated overt acts, avoid doing anything where you need to ask a lawyer. This sounds simple and reasonable.

    It is also wrong. There are enough areas where the law is either unsettled or variable by location (and judge) that you may be well served to discuss with counsel before you do the act.

    Want to buy land with any sort of interesting history? Want to build on a 50' lot? Want to paint your house but you live in an HOA community?

    Maybe it was a mistake or series of mistakes that got you there, but now you are where you are.

    Are your company still using the building and offices you used 30 years ago? Well, maybe before the ADA, your rights were clear. Good luck, now.

    I doubt that the earlier advisor offering free legal advice would make a serious argument that buying, building, painting, or using the same old office are particularly reprehensible. None the less, without a lawyer, you may be taking your chances.

    Usually you will come out OK in all of those activities. Maybe that is good enough. In that case, sure, you may avoid using a lawyer. I think most lawyers are already busy enough that your decision will not be a problem for them.

  • Dec 12th, 2015 @ 1:39pm

    Is It a Copyright Violation?

    Well, it is a picture of a p[resumably licensed toy. We need look no farther than Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (US 2d Cir., 1997) to think there may be infringement.

    Not what is claimed in the bogus DMCA notices, but still there may be infringement. The fact that the above-cited case is a plausible reading of the law does suggest that the law, or the courts interpreting it, or both, have suffered from some severe brain damage.

    Such a reading of copyright law does warn us about all those pictures of items for sale on various web sites. If that were the only problem, we might hand-wave it. You can eliminate the various internet classified sale sites and much of life would continue.

    But if we consider the right to publicly display a work, it does not stop at classified advertising sites. That star wars fan could get tired of the toy. If he puts it on a table in front of his house as part of a yard sale, he may be publicly displaying it, contrary to the form of 17 U.S.C. 106(5). Such public display is for monetary gain, which will weigh against fair use.

  • Dec 3rd, 2015 @ 3:38am

    (untitled comment)

    The law states that if you're taking pictures, photos or video in a public space that is seen by the public then you can assert your first amendment rights. However, you are not allowed to profit from the taking of those photographs.

    Citation, please, for the assertion that you are not allowed to profit from the taking of those photographs. Preferably a citation which is binding in Arizona.

  • Nov 29th, 2015 @ 7:24pm

    Re: Probably the warning on the right side?

    I really want tools to help disrupt ALL of the spammers' infrastructure, pursue ALL of the spammers' accomplices, and even help and protect ALL of the spammers' victims.

    This may not be compatible with the Yahoo business model. They provide two vital services to spammers:
    1. spam distribution
    2. scammer maildrops

    So long as these are important parts of their business, I cannot foresee them making any effort to disrupt these things. I have not yet heard any suggestion that they intend to leave the spam and scam support business.

  • Nov 18th, 2015 @ 2:11am

    (untitled comment)


    took a lawsuit to force the county government to act in accordance with the wishes of those in the area is absurd

    Not quite. The county govt discerned that the public wanted red light cameras abolished, put it on the ballot as a charter amendment, and the voters approved it by an overwhelming margin. Thereafter the county government acted in accord with the voters' expressed desires.

    Which is more than you could say for the plaintiff municipalities. They sued the county to prevent it from acting in accord with the voters' wishes expressed through charter amendment.

    I would commend that county and hold it up as an example to be emulated here, where the county govt has (successfully) sued to prevent the citizens from amending the charter. Charter government in Florida is occasionally described as a necessary evil. I am unsure as to the ``necessary'' part of that. In those counties which have adopted a charter, the results have been uniformly bad, so the ``evil'' is beyond dispute.

  • Nov 15th, 2015 @ 3:52am

    Re: Re: Did he hurt anyone?

    [Schenck]

    Yes, but I think even the author of that opinion would up being less than proud of it. Look at Holmes' dissent in Abrams v. US, 250 U.S. 616 (US, 1919). Similar, Gitlow v. NY, 268 U.S. 652 (US 1925). Certainly the entire Schenck opinion is not one of which the court can be very proud. The cases in which Schenck is followed mean that the case will remain as a perpetual stain of dishonor on the court.

    These arrests and prosecutions have some of the same air, the government falsely yelling ``fire'' in a crowded theatre. In crowded cities, the government yells that there is a threat from which only they can protect you, and the result is a rush to trample the constitutional rights of the citizens.

    The threats turn out to be either entirely bogus, or manufactured by the govt. Maybe we can add a new category: lighting a fire in a crowded theatre.

  • Nov 14th, 2015 @ 5:41am

    Re: How much would it cost?


    What's the going rate for custom awards these days?

    I seen to get my share of spam from rthurman@smallbusinesscommunity.org, who will happily sell you an award for a little under a hundred dollars. If Mr. Zarrelli needs an award, I'd probably want him to pay for it himself. You can pay more for a fancier award, depending on how much support your ego needs.

  • Nov 9th, 2015 @ 7:01pm

    Re: Re: Re: My daughter is deaf.


    When you carry your shopping bags out the automatic door at the supermarket, you are looking at an innovation that would not be in place if the ADA had not mandated it

    In your dreams, maybe.

    In the real world, the ADA was enacted in 1990. The grocery stores where I shopped had automatic doors in the 1980s.

    Indeed, automatic doors were hardly rare back in the 1960s and 1970s, though they used a different technology to detect people. I remember one on a hospital office building in the 1960s using light beams to detect people, but the normal technology of the day at retail stores was a rubber pressure mat.

    I normally reject arguments that a thing which came after caused an effect which came prior. I see no reason to deviate from this rule in rejecting your argument.

  • Nov 9th, 2015 @ 4:44am

    Re: The new novel argument


    Now, nothing can *ever* be released, because it might be elevated to the Supreme Court.

    Argument is neither new nor novel. It is fairly standard and in many cases well taken. Release client/atty discussions pending appeal, and you cannot put the cat back in the bag. Release pending investigation, same result.

    Neither can you punish publication of supposedly secret information. For instance, unlawfully publish victim name in sex crime, that is Florida Star v. B.J.F., 491 U.S. 397. Once the information is out, it is out.

    The difference here is that the official fears embarrasment, and this is probably a well founded fear. However we are not sympathetic to this case.

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