Quotulatiousness

August 28, 2015

Google and the (bullshit) European “right to be forgotten”

Filed under: Europe, Law, Liberty, Media, USA — Tags: , , , , , — Nicholas @ 03:00

Techdirt‘s Mike Masnick points and laughs at a self-described consumerist organization’s attempt to force Google to apply EU law to the rest of the world, by way of an FTC complaint:

If you want an understanding of my general philosophy on business and economics, it’s that companies should focus on serving their customers better. That’s it. It’s a very customer-centric view of capitalism. I think companies that screw over their customers and users will have it come back to bite them, and thus it’s a better strategy for everyone if companies focus on providing good products and services to consumers, without screwing them over. And, I’m super supportive of organizations that focus on holding companies’ feet to the fire when they fail to live up to that promise. Consumerist (owned by Consumer Reports) is really fantastic at this kind of thing, for example. Consumer Watchdog, on the other hand, despite its name, appears to have very little to do with actually protecting consumers’ interests. Instead, it seems like some crazy people who absolutely hate Google, and pretend that they’re “protecting” consumers from Google by attacking the company at every opportunity. If Consumer Watchdog actually had relevant points, that might be useful, but nearly every attack on Google is so ridiculous that all it does is make Consumer Watchdog look like a complete joke and undermine whatever credibility the organization might have.

In the past, we’ve covered an anti-Google video that company put out that contained so many factual errors that it was a complete joke (and was later revealed as nothing more than a stunt to sell some books). Then there was the attempt to argue that Gmail was an illegal wiretap. It’s hard to take the organization seriously when it does that kind of thing.

Its latest, however, takes the crazy to new levels. John Simpson, Consumer Watchdog’s resident “old man yells at cloud” impersonator, recently filed a complaint with the FTC against Google. In it, he not only argues that Google should offer the “Right to be Forgotten” in the US, but says that the failure to do that is an “unfair and deceptive practice.” Really.

As you know by now, since an EU court ruling last year, Google has been forced to enable a right to be forgotten in the EU, in which it will “delink” certain results from the searches on certain names, if the people argue that the links are no longer “relevant.” Some in the EU have been pressing Google to make that “right to be forgotten” global — which Google refuses to do, noting that it would violate the First Amendment in the US and would allow the most restrictive, anti-free speech regime in the world to censor the global internet.

But, apparently John Simpson likes censorship and supporting free speech-destroying regimes. Because he argues Google must allow such censorship in the US. How could Google’s refusal to implement “right to be forgotten” possibly be “deceptive”? Well, in Simpson’s world, it’s because Google presents itself as “being deeply committed to privacy” but then doesn’t abide by a global right to be forgotten. Really.

August 22, 2015

Coming soon to Massachusetts (maybe) – pot pubs

Filed under: Law, Liberty, USA — Tags: , , , — Nicholas @ 03:00

In Forbes, Jacob Sullum looks at the finalized ballot initiative to be presented to Massachusetts voters in the next general election:

When the Campaign to Regulate Marijuana Like Alcohol in Massachusetts unveiled the text of its 2016 legalization initiative this month, the group highlighted several features of the measure but omitted the most interesting one. The Regulation and Taxation of Marijuana Act would allow consumption of cannabis products on the premises of businesses that sell them, subject to regulation by the state and approval by local voters.

That’s a big deal, because until now no jurisdiction has satisfactorily addressed the obvious yet somehow touchy question of where people can consume the cannabis they are now allowed to buy. The legalization initiatives approved by voters in Colorado, Washington, Oregon, and Alaska all promised to treat marijuana like alcohol, which implies allowing venues similar to taverns where people can consume cannabis in a social setting. Yet all four states say businesses that sell marijuana may not let customers use it on the premises.

Although a few “bring your own cannabis” (BYOC) clubs have popped up to accommodate people who want to use marijuana outside their homes from time to time, the legality of such establishments is a matter of dispute. The result is that people can openly buy marijuana without fear, but they still have to consume it on the sly, just like in the bad old days. The problem is especially acute for visitors from other states, since pot-friendly hotels are still pretty rare.

August 21, 2015

Studs Terkel talks to Hunter S. Thompson about the Hell’s Angels

Filed under: Law, Liberty, USA — Tags: , , , — Nicholas @ 02:00

Published on 28 Jul 2015

“I keep my mouth shut now. I’ve turned into a professional coward.”
– Hunter S. Thompson in 1967

In the 1960s, Hunter S. Thompson spent more than a year living and drinking with members of the Hell’s Angels motorcycle club, riding up and down the California coast. What he saw alongside this group of renegades on Harleys, these hairy outlaws who rampaged and faced charges of attempted murder, assault and battery, and destruction of property along the way — all of this became the heart of Thompson’s first book: Hell’s Angels: A Strange and Terrible Saga. Shortly after the book came out, Thompson sat down for a radio interview with the one and only Studs Terkel.

CHOICE QUOTES
“I can’t remember ever winning a fight.”

“I used to take it out at night on the Coast Highway, just drunk out of my mind, ride it for 20 and 30 miles in just short pants and a t-shirt. It’s a beautiful feeling.”

“ I tried to keep my eyes on him because I didn’t want to have my skull fractured.”

“They want to get back at the people who put them in this terrible, this dead end, tunnel.”

“The people who are most affected by this technological obsolescence are the ones least capable of understanding the reason for it, so the venom builds up much quicker. It feeds on their ignorance.”

August 18, 2015

How police departments justify militarization

Filed under: Law, USA — Tags: , — Nicholas @ 04:00

In the Washington Post, Radley Balko looks at some documentation recently acquired by Mother Jones showing how police departments explain why they need war-fighting tools for police work:

Mother Jones got ahold of some of the forms police agencies fill out when requesting military gear from the Pentagon. They’re pretty revealing.

    … the single most common reason agencies requested a mine-resistant vehicle was to combat drugs. Fully a quarter of the 465 requests projected using the vehicles for drug enforcement. Almost half of all departments indicated that they sit within a region designated by the federal government as a High Intensity Drug Trafficking Area. (Nationwide, only 17 percent of counties are HIDTAs.) One out of six departments were prepared to use the vehicles to serve search or arrest warrants on individuals who had yet to be convicted of a crime. And more than half of the departments indicated they were willing to deploy armored vehicles in a broad range of Special Weapons and Tactics (SWAT) raids.

Police officials frequently say they need these behemoth vehicles to protect officers from active shooters. But that isn’t what they’re telling the Pentagon when they request them.

    By contrast, out of the total 465 requests, only 8 percent mention the possibility of a barricaded gunman. For hostage situations, the number is 7 percent, for active shooters, 6 percent. Only a handful mentioned downed officers or the possibility of terrorism.

    “This is a great example of how police as an institution talk to each other privately, versus how they talk to the public and journalists who might raise questions about what they’re doing with this equipment,” says Peter Kraska, a professor at Eastern Kentucky University who has studied police militarization for decades. When police are pressured in public, Kraska says, “They’re going to say, ‘How about Columbine?’ or point to all these extremely rare circumstances.”

Kraska is correct to call such situations extremely rare. Despite the saturation coverage mass shootings get, statistically, the odds of one occurring in your immediate community are still incredibly low. I suspect one big reason the public hasn’t been more outspoken in opposing the transfer of this sort of gear is because most people think such shootings are more common than they are. That’s mostly because the media have been good at scaring people into thinking as much. (Ironically, one of the media outlets most guilty of overstating the frequency of such events … is Mother Jones.)

August 13, 2015

Grand Theft, banking style

Filed under: Law, Liberty, USA — Tags: , , , , , — Nicholas @ 05:00

At Salon, David Dayen tells the astounding tale of American banks going feral and mass-forging legal documents to foreclose mortgages on houses they had zero claim on:

If you know about foreclosure fraud, the mass fabrication of mortgage documents in state courts by banks attempting to foreclose on homeowners, you may have one nagging question: Why did banks have to resort to this illegal scheme? Was it just cheaper to mock up the documents than to provide the real ones? Did banks figure they simply had enough power over regulators, politicians and the courts to get away with it? (They were probably right about that one.)

A newly unsealed lawsuit, which banks settled in 2012 for $95 million, actually offers a different reason, providing a key answer to one of the persistent riddles of the financial crisis and its aftermath. The lawsuit states that banks resorted to fake documents because they could not legally establish true ownership of the loans when trying to foreclose.

This reality, which banks did not contest but instead settled out of court, means that tens of millions of mortgages in America still lack a legitimate chain of ownership, with implications far into the future. And if Congress, supported by the Obama administration, goes back to the same housing finance system, with the same corrupt private entities who broke the nation’s private property system back in business packaging mortgages, then shame on all of us.

August 10, 2015

QotD: Rioters

Filed under: Law, Media, Quotations, USA — Tags: , — Nicholas @ 01:00

My observation of rioters, admittedly from a distance and refracted through cameras, is that they enjoy rioting. Pride is not the only thing that goeth before destruction; human nature does too. I certainly know myself the pleasures of destruction, and knew them as a child: still when I dispose of my bottles in the bottle bank I am disappointed if a few of them do not break with a gratifying tinkle. When I am in a temper (which is not often these days), I know the momentary relief and pleasure that a broken window would bring me. But I have a duty not to relieve myself in this way; everyone does.

When the destructive urge is allied to a sense of purpose and righteousness, it is at its most dangerous, for then one denies that one is deriving pleasure from one’s actions — one is only doing what is right.

There is more that might be said about the violent protesters in Ferguson, as elsewhere. It is true, of course, that no one can be equally moved by all the injustices in the world; if such a person existed, his life would be one long protest against injustice and he would have no time for the enjoyment of the ordinary things of life. The best way to be a bore, said Voltaire, is to say everything; and the second best way would be to protest about everything. But still one has a duty to keep one’s wrath in bounds.

I am not against protest as such. But where someone’s protest against one thing is very much greater than against another that is equally near and in aggregate as serious, one may suspect his dishonesty or bad faith. It is true, of course, that a killing by an agent of the state is particularly heinous, especially if part of a pattern, but it is not infinitely serious by comparison with other killings, nor is it the only serious killing. Though Ferguson is not a particularly violent town (its rate of crimes of violence is about average for that of the United States), five people were murdered there in 2011 without arousing the kind of agitation that has captured, and perhaps even captivated, the attention of the world for the last few days. There are places near Ferguson where the violent crime rate is four times higher than in Ferguson, but there has never been a protest of the same order against the depredations of criminals there.

I try to imagine what it would take to make me throw bricks through windows, ransack buildings, and so forth. Having myself suffered only minor injustices and been responsible for my own failures in life, it takes a special effort of the imagination. But even after I have made that effort, I still cannot see a logical or justifiable connection between protest at injustice and looting a store.

Theodore Dalrymple, “Indulging in Destruction”, Taki’s Magazine, 2014-08-24.

August 6, 2015

Michael Geist on the latest TPP leaks

Filed under: Cancon, Economics, Law, Politics — Tags: , , , , — Nicholas @ 04:00

As you’d expect from a set of negotiations — secret negotiations, at that — what the politicians say about it doesn’t necessarily have much to do with reality:

KEI this morning released the May 2015 draft of the copyright provisions in the Trans Pacific Partnership (copyright, ISP annex, enforcement). The leak appears to be the same version that was covered by the EFF and other media outlets earlier this summer. As such, the concerns remain the same: anti-circumvention rules that extend beyond the WIPO Internet treaties, additional criminal rules, the extension of copyright term, increased border measures, mandatory statutory damages, and expanding ISP liability rules, including the prospect of website blocking for Canada.

Beyond the substantive concerns highlighted below, there are two key takeaways. First, the amount of disagreement within the chapter is striking. As of just a few months ago, there were still many critical unresolved issues with widespread opposition to (predominantly) U.S. proposals. Government ministers may continue to claim that the TPP is nearly done, but the parties still have not resolved longstanding copyright issues.

Second, from a Canadian perspective, the TPP could require a significant overhaul of current Canadian law. If Canada caves on copyright, changes would include extending the term of copyright, implementing new criminal provisions, creating new restrictions on Internet retransmission, and adding the prospect of website blocking for Internet providers. There is also the possibility of further border measures requirements just months after Bill C-8 (the anti-counterfeiting bill) received royal assent.

Given the extensive debate on copyright during the 2012 reforms, the TPP upsets the balance the Canadian government struck, mandating reforms without public consultation or debate. The government has granted itself the power to continue to negotiate the TPP during the election period, but all the major parties should publicly declare where they stand on these issues.

August 4, 2015

Alex Tabarrok explains the “Happy Meal fallacy”

Filed under: Business, Economics, Law — Tags: , , — Nicholas @ 04:00

Another post from last month that I’m just getting around to linking:

Some restaurants offer burgers without fries and a drink. These restaurants cater to low-income people who enjoy fries and drinks but can’t always afford them. To rectify this sad situation a presidential candidate proposes The Happy Meal Act. Under the Act, burgers must be sold with fries and a drink. “Burgers by themselves are not a complete, nutritious meal,” the politician argues, concluding with the uplifting campaign slogan, “Everyone deserves a Happy Meal!”

But will the Happy Meal Act make people happy? If burgers must come with fries and a drink, restaurants will increase the price of a “burger.” Even though everyone likes fries and a drink they may not like the added benefits by as much as the increase in the price of the meal. Indeed, this must the case since consumers could have bought the meal before the Act but chose not to. Requiring firms to sell benefits that customers value less than their cost makes both firms and customers worse off.

The Happy Meal Fallacy is fairly obvious when it comes to happy meals but now let’s consider the debate over the gig economy and the hiring of employees versus contractors. Employees are entitled to benefits that contractors are not. Thus the standard conclusion is that classifying workers as contractors “is great for employers but potentially terrible for workers.” Wrong. Employees get their wages with fries and a drink while contractors get wages only. Would a law requiring firms to provide all workers with fries and a drink help workers?

If firms are required to provide benefits to contractors they will lower the contractor wage. But how do we know the extra benefits aren’t worth the reduction in wages? If the extra benefits were worth more to workers than they cost firms, firms would have eagerly provided these benefits as a way of increasing profits. Firms can profit whenever buyers are willing to pay more for a product than its cost. Benefits are a product that workers buy from firms.

Tallahassee does the right thing about its red light camera system

Filed under: Government, Law, USA — Tags: , , — Nicholas @ 03:00

Last month, Randall Holcombe reported on a sensible decision by the Tallahassee, Florida city government when it was discovered that its red light camera program had achieved the stated goal:

Five years ago my hometown of Tallahassee, Florida contracted with Xerox to set up 19 red light cameras at seven busy intersections in town. The contract had the city pay Xerox about $87,000 a month to operate the cameras, and charged drivers a fine of $142 for being caught on camera running a red light.

When the program was established, city officials claimed that the cameras were installed for safety reasons, to deter drivers from running red lights, not to raise revenue. If we take them at their word, the program worked. Red light violations have fallen more than 90% since the program began. The program has been so successful that the city is not taking in sufficient revenues from fining violators to pay Xerox the fees for operating them.

You can guess the ending of this story. The city has announced that when the contract with Xerox expires in August, it will not be renewed and the red light camera program will end. Here is a program that has been a huge success by the city’s stated criterion, so the city is terminating it.

I see two possible explanations for this. One is that governments tend to terminate successful programs and continue the unsuccessful ones. The other is that the city officials who originally stated that the motivation for installing the cameras was to deter red light violations, and not the revenue generated from fines, were lying. I’m not ruling out the possibility that both explanations are correct.

Other municipalities presented with the same set of facts went in another direction: reducing the amber light time to increase the number of cars that could be caught on camera violating the law. That this had nothing to do with increasing public safety on the roads — in fact, probably increased the danger around traffic lights in the case of drivers braking suddenly to avoid entering the intersection as soon as the light turned yellow — but it did do a fine job of increasing the fines that could be collected (who cares about the safety of drivers and pedestrians when municipal revenue is at stake?).

Byzantine Empire: Justinian and Theodora – II: The Reforms of Justinian – Extra History

Filed under: Europe, History, Law, Middle East, Religion — Tags: , , — Nicholas @ 02:00

Published on 27 Jun 2015

Justinian wanted to restore the glory of Rome, but many obstacles stood in his way. He brought on talented advisors to help him reform the tax system, the law code, and the military might of the empire. With them he made great strides, but these advisors had very human flaws. His tax collector, John the Cappadocian, centralized tax collection and crushed corruption in his agents, greatly increasing the revenue to the empire – but he also skimmed money off the top to feed his private corruption. Meanwhile, a lawyer named Tribonian took centuries of confusing and even conflicting legal precedents and resolved them into a single code, the Corpus Juris Civilis, which remains the foundation of modern law today. He even made a textbook for students to learn from. But he was also a practicing pagan during an era when Justinian was trying to crack down on pagan rituals. And last, Justinian’s chief military commander Belisarius helped the Empire recover its military glory. He defeated the Sassanid Persians in the Battle of Dara, crushing a force of 50,000 men with only 25,000 of his own through clever strategy: he dug a trench to halt their infantry’s advance, then baited the Persian cavalry into overextending and sprang a surprise attack on them with Hun mercenaries. Although Belisarius seems to have been an upstanding person, his personal historian Procopius tainted even his clean record. Procopius wrote glowing official histories of the reign of Justinian, but his long lost secret history depicted Justinian as a literal headless demon and Theodora as a debauched monster.

July 27, 2015

The “Ferguson Effect”

Filed under: Law, Politics, USA — Tags: , , , — Nicholas @ 04:00

Radley Balko explains why the concerns and worries of police officials have been totally upheld by the rising tide of violence against police officers in the wake of the events in Ferguson … oh, wait. No, that’s not what happened at all:

The “Ferguson effect,” you might remember, is a phenomenon law-and-order types have been throwing around in an effort to blame police brutality on protesters and public officials who actually try to hold bad cops accountable for an alleged increase in violence, both general violence and violence against police officers.

The problem is that there’s no real evidence to suggest it exists. As I and others pointed out in June, while there have been some increases in crime in a few cities, including Baltimore and St. Louis County, there’s just no empirical data to support the notion that we’re in the middle of some national crime wave. And while there was an increase in killings of police officers in 2014, that came after a year in which such killings were at a historic low. And in any case, the bulk of killings of police officers last year came before the Ferguson protests in August and well before the nationwide Eric Garner protests in December.

Now, the National Law Enforcement Officers Memorial Fund has released its mid-year report on police officers’ deaths in 2015. Through the end of June, the number of officers killed by gunfire has dropped 25 percent from last year, from 24 to 18. Two of those incidents were accidental shootings (by other cops), so the number killed by hostile gunfire is 16. (As of today, the news is even better: Police deaths due to firearms through July 23 are down 30 percent from last year.)

[…]

A typical officer on a typical stop is far more likely to die of a heart attack than to be shot by someone inside that car.

It’s important to note here that we’re also talking about very small numbers overall. Police officer deaths have been in such rapid decline since the 1990s that when taken as percentages, even statistical noise in the raw figures can look like a large swing one way or the other. And if we look at the rate of officer fatalities (as opposed to the raw data), the degree to which policing has gotten safer over the last 20 years is only magnified.

But the main takeaway from the first-half figures of 2015 is this: If we really were in the midst of a nationwide “Ferguson effect,” we’d expect to see attacks on police officers increasing. Instead, we’re seeing the opposite. That’s good news for cops. It’s bad news for people who want to blame protesters and reform advocates for the deaths of police officers.

July 26, 2015

The problems when you try to resolve complicated discrimination problems with laws

Filed under: Business, Law, Liberty, USA — Tags: , , , , — Nicholas @ 03:00

Warren Meyer explains why he — who organized and lead an effort to legalize gay marriage in Arizona — is not reflexively in favour of using the blunt force of the law to “solve” problems of discrimination:

There are multiple problems with non-discrimination law as currently implemented and enforced in the US. Larger companies, for example, struggle with disparate impact lawsuits from the EEOC, where statistical metrics that may have nothing to do with past discrimination are never-the-less used to justify discrimination penalties.

Smaller companies like mine tend to have a different problem. It is an unfortunate fact of life that the employees who do the worst job and/or break the rules the most frequently tend to be the same ones with the least self-awareness. As a result, no one wants to believe their termination is “fair”, no matter how well documented or justified (I wrote yesterday that I have personally struggled with the same thing in my past employment).

Most folks grumble and walk away. But what if one is in a “protected group” under discrimination law? Now, not only is this person personally convinced that their firing was unfair, but there is a whole body of law geared to the assumption that their group may be treated unfairly. There are also many lawyers and activists who will tell them that they were almost certainly treated unfairly.

So a fair percentage of people in protected groups whom we fire for cause will file complaints with the government or outright sue us for discrimination. I will begin by saying that we have never lost a single one of these cases. In one or two we paid someone a nominal amount just to save legal costs of pursuing the case to the bitter end, but none of these cases were even close.

[…]

To make all this worse, many employees have discovered a legal dodge to enhance their post-employment lawsuits (I know that several advocacy groups in California recommend this tactic). If the employee suspects he or she is about to be fired, they will, before getting fired, claim all sorts of past discrimination. Now, when terminated, they can claim they where a whistle blower that that their termination was not for cause but really was retaliation against them for being a whistle-blower.

I remember one employee in California taking just this tactic, claiming discrimination just ahead of his termination, though he never presented any evidence beyond the vague claim. We wasted weeks with an outside investigator checking into his claims, all while customer complaints about the employee continued to come in. Eventually, we found nothing and fired him. And got sued. The case was so weak it was eventually dropped but it cost us — you guessed it — about $20,000 to defend. Given that this was more than the entire amount this operation had made over five years, it was the straw that broke the camel’s back and led to us walking about from that particular operation and over half of our other California business.

July 15, 2015

QotD: Modern urban policing

Filed under: Britain, Law, Quotations, USA — Tags: , — Nicholas @ 01:00

Let me interject that I hold no brief for the police in America, at least in the cities. They inspire me with a frisson of fear every time I see one, though I break no law. Their manner is more that of masters of the public than of servants of the same; many of them seem to be the kind of people who wanted to be soldiers but couldn’t make the grade because they were not fit enough. They look menacing and seem to shoot to kill on relatively slight pretexts (or perhaps they are just bad shots). I have little doubt that if I were black my less than warm feelings toward them would be a good deal cooler still. Their increasing militarization, on the flimsiest of pretexts, is another reason to mistrust them. Alas, the British police are increasingly modeling themselves on the American, as if they were permanently on riot duty.

Theodore Dalrymple, “Indulging in Destruction”, Taki’s Magazine, 2014-08-24.

July 13, 2015

Do photographers have any rights left?

Filed under: Bureaucracy, Law, Liberty — Tags: , , , , — Nicholas @ 03:00

I no longer do much in the way of “serious” photography (my digital SLR has been out of service for a couple of years now), but I still occasionally do a bit of cellphone photography when the occasion arises. On the byThom blog, Thom Hogan provides a long (yet not exhaustive) list of things, places, and people who are legally protected from being photographed in various jurisdictions … and it gets worse:

Funny thing is, smartphones are so ubiquitous and so small, many of those bans just aren’t enforceable against them in their natural state (e.g., without selfie stick), especially if they’re used discriminatingly.

I’m all for privacy, but privacy doesn’t exist in public spaces as far as I’m concerned. Indeed, I’d argue that even in private spaces (malls, for example), that if you’re open for and soliciting business to the public, you’re a public space. As for Copyright, placing artwork in open public spaces (e.g. Architecture) probably ought to convey some sort of Fair Use right to the public, though in Europe we’re seeing just the opposite start to happen. FWIW, I no longer visit and thus don’t photograph in two countries because of national laws regarding photography. Be careful what you wish for, Mr. Bureaucracy; laws often have unintended consequences. As in reducing my interest in visiting your country.

About half of this site’s readers actively practice some form of travel photography, either during vacations or while traveling for business. Note how many of the restrictions on photography start to apply against those that are traveling (locally or farther afield). It’s always easy to impose laws on people who don’t vote for you. it’s why rental car and hotel room taxes are so high, after all.

What prompted this article, though, wasn’t any of the latest photography ban talk, though. Here in Pennsylvania we have fairly restrictive regulations on “recording” another person (e.g. conversations, phone calls, meetings, etc.). In some states, it only takes one party to consent for a recording to be legal. Here in Pennsylvania it takes all parties to consent to being recorded.

H/T to Clive for the link.

July 11, 2015

Reason.tv – How the Feds’ Subpoena of Reason and Gag Order Went Public

Filed under: Law, Liberty, Media, USA — Tags: , , , — Nicholas @ 03:00

Published on 7 Jul 2015

You may have already heard about how the government tried to stifle Reason‘s free speech.

Federal prosecutors based in New York sent a grand jury subpoena and letter to Reason, commanding editors to hand over the records of six commenters who wrote hyperbolic statements about federal judge Katherine Forrest below a blog post at Reason.com. Forrest sentenced Ross Ulbricht to life in prison without parole for creating the Silk Road website.

Then came a gag order from U.S. District Court, meaning Reason could not write or speak publicly about the subpoena or gag order — even to acknowledge either existed. But between the subpoena being issued and the gag order being issued, one legal blogger managed to figure out what was going on.

“I got an email and I looked at it and I thought wow, this is a federal grand jury subpoena to Reason magazine,” says Ken White, a writer at the legal blog Popehat who is himself a former federal prosecutor. White sat down with Reason TV to talk about how he broke the story and what he thinks it means for press freedom and open expression online.

“What’s upsetting is that there is no indication whatsoever either that the prosecutor or the judge gave any consideration to the fact that this was being aimed at a reporting organization about a First Amendment issue,” says White. What’s more, White stresses that the comments named in the subpoena are commonplace for the internet and especially at Reason.com, a site, he notes, “whose clever writing is eclipsed only by the blowhard stupidity of its commenting peanut gallery.”

The scrutinized comments ranged from taunts such as “I hope there is a special place in hell reserved for that horrible woman” to “Its (sic) judges like these that should be taken out back and shot,” but none, say White, come close to qualifying as “true” threats or anything other idle chatter. It remains unclear why the U.S. Attorney’s Office was interested in such internet fodder, how often these sorts of subpoenas get sent out to news organizations, and how often they comply. Nevertheless, White points out that federal prosecutors hold an enormous amount of power over human lives and rarely reflect on how they use — and abuse — their position.

“A fish doesn’t know that it’s in water,” says White. “A federal prosecutor doesn’t know that they are swimming in power. They could do it, so they did.”

Produced by Paul Detrick. Shot by Zach Weissmueller and Justin Monticello.

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