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Subject: [IP] more on 1st Circuit rules on Councilman

  • From: David Farber <>
  • To: Ip Ip <>
  • Date: Tue, 06 Sep 2005 15:59:37 -0400

Begin forwarded message:

From: Bob Frankston <>
Date: September 6, 2005 3:40:40 PM EDT
Cc: Dave Crocker <>
Subject: RE: [IP] 1st Circuit rules on Councilman

The legal system is fundamentally about trusting the larger society rather
than taking &quot;the law&quot; into our own hands and using weapons other the words
(and money).

The problem is that the fictions that allow us to accept the legal system
become stretched during transitions. It's even more problematic when we
have precedent vs science/engineering. I keep referring to the legal system
and its tendency to bifurcate babies and compromise on pi being 3.07. I do
find it strange speech using electronics is different from speech using
sound waves or wood pulp.

This is why I fear a Supreme Court that strictly interprets the US
Constitution -- it is a document in a context. The writers themselves were
struggling to come to terms with the new philosophical concepts of the day
and would have been surprised to see how well it has worked and probably
horrified that people took their words so literally.

Of course, loose interpretations can also be very dangerous ... but then is
the decision to extend Mickey forever loose or strict? I would like to
think there is privacy outside the confines of my house and that electronic
invasions are still invasions. I sense that extending privacy is precisely
the kind of &quot;tampering&quot; that today's administration abhors.

But then why should we expect human systems to change in less than a few
generations simply because our understanding of basic concepts changes
daily. It's been less then two centuries and evolution is still viewed as

-----Original Message----- From: David Farber [] Sent: Tuesday, September 06, 2005 15:02 To: Subject: [IP] 1st Circuit rules on Councilman

-----Original Message-----
From: &quot;Dave Crocker&quot;<>
Sent: 06/09/05 1:03:21 PM
To: &quot;;<>
Cc: &quot;;<>
Subject: Re: [IP] 1st Circuit rules on Councilman

It's remarkable, is it not, that the First Circuit en banc held
that it's OK to convict someone criminally who is presumed to know what
the law requires, ... This is just the latest
example of a pernicious trend in federal criminal law - the ability and
willingness of prosecutors to prosecute, harass, and persecute citizens
and companies for violating utterly vague and/or overbroad federal
criminal statutes and endless turgid regulations,


I, too, found the latest appelate court decision remarkable.  I found it
remarkable that the lower reviews had bought any of the artificial, lame
arguments brought by Councilman.

Are we to believe that it is the slightist bit reasonable for a provider of
a general-purpose communication service to me to inspect the content of
messages -- without my knowledge, of course -- and to use that content to
competitive advantage?

What is apparently often missed in this debate is that the lower courts
were playing around with what the rest of us would call legal
technicalities, rather than the meat of the offense.

The latest decision put logic and legal games aside and focused on
reasonable expectations and reasonable interpretations of the law -- and,
by the way, the intentions of those who wrote those laws.

The previous decisions worked in the detached vaccuum that can make the
legal process pure but destructive.  What is remarkable about the latest
decision is that it stayed in the real world.


  Dave Crocker
  Brandenburg InternetWorking
  dcrocker  a t ...

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