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Lori Drew Verdict
I was right about the verdict in the Lori Drew case, though I wish I had been wrong, since even misdemeanor convictions for unauthorized computer access raise the prospect that every American who uses the Internet is an accidental criminal. How many terms of service have you violated today?
|11.26.08 @ 3:04PM|#
How many terms of service have you violated
today?
No clue, but I'm confident that no one committed suicide because of
it.
This is a tempest in a teapot. The gubmint is not going to start
going after TOS violators - they went after this woman because she
was a particularly mean-spirited bitch.
kinnath|11.26.08 @ 3:04PM|#
Not often do I get to lament prosecutorial over-reach while at least getting some satisfaction that the right person got fucked over.
|11.26.08 @ 3:07PM|#
I'll be surprised if the convictions stand. TOS agreements having weight in criminal law is BS.
anarch|11.26.08 @ 3:12PM|#
First they came for the particularly mean-spirited
bitches...
I'm always surprised when many here rank vengeance so high. What,
besides some people's emotional satisfaction, is served? Is she a
danger to others? Will lots of bullies be deterred? Is the cost
worth it?
I guess you figure it is.
Mad Max|11.26.08 @ 3:12PM|#
"The gubmint is not going to start going after TOS violators -
they went after this woman because she was a particularly
mean-spirited bitch."
The government isn't going after doctors who prescribe pain pills -
it will only prosecute major drug-dealers who deserve it.
|11.26.08 @ 3:13PM|#
This should be appealed and thrown out.
Not often do I get to lament prosecutorial over-reach while at
least getting some satisfaction that the right person got fucked
over.
Right, because being an asshole deserves jail time and setting
fucking ridiculous precedents.
anarch|11.26.08 @ 3:15PM|#
Also, how would you gain satisfaction / serve justice if she hadn't used a computer, but a telephone, or forged a series of love-notes and left on the sidewalk in front of her house instead? Nailed her on an anti-littering ordinance? Silly example, serious question.
anarch [and] the bean-stalker|11.26.08 @ 3:16PM|#
left them on the sidewalk
I'd make a lousy cyber-stalker.
Old Bull Lee|11.26.08 @ 3:19PM|#
I don't particularly like the WAY they went after this woman,
but I'm glad they did.
I would rather it have involved harassment laws or some kind of
civil suit, but an adult who bullied and harassed a vulnerable kid
needs to face some consquences, whether she used MySpace, postal
letters, a phone or even said it in person.
Mad Max|11.26.08 @ 3:19PM|#
"The gubmint is not going to start going after TOS violators -
they went after this woman because she was a particularly
mean-spirited bitch."
Oh, and quit complaining about detention without trial and military
tribunals. We know that the only people affected by those policies
are evil terrorists who want to set off dirty bombs.
|11.26.08 @ 3:20PM|#
Also, how would you gain satisfaction / serve justice if she
hadn't used a computer
Don't know, probably some equally arcane legal point that also
would not become a broadly applied precedent.
|11.26.08 @ 3:24PM|#
Max,
Jumping to a couple hyperbolic extreme examples really isn't moving
your argument, particularly when they are both irrelevant. Neither
abuse of one's professional license nor detention without charge or
trial occurred here.
Zeb|11.26.08 @ 3:25PM|#
Add me to the side that is surprised so many people here think that this is OK. It is of no consequence to me how much of a nasty bitch this woman is. Justice was not served and that is bad news.
|11.26.08 @ 3:28PM|#
How many terms of service have you violated
today?
Don't know, don't care. If anyone wants to kick me off their site,
I'll accept it.
Oh wait, I might go to jail for a year?
That's what we should be worried about. This is akin to jailing
people who are too loud in the theater where signs are clearly
posted about keeping conversation hushed.
This may sound callous but I'm getting a bit pissed at Megan Meier
for offing herself. Couldn't she have waited until she was 16 and
do it over a real boy?
kinnath|11.26.08 @ 3:29PM|#
Right, because being an asshole deserves jail time and
setting fucking ridiculous precedents.
No, I said I lament the over zealous prosecution for all the
reasons that libertarians should care about.
I just said there was a certain amount of schadenfreud associated
with seeing this cunt get convicted.
That being said, I hope it is overturned on appeal.
|11.26.08 @ 3:30PM|#
The government isn't going after doctors who prescribe pain pills - it will only prosecute major drug-dealers who deserve it.
Mad Max shoots, he scores!
anarch|11.26.08 @ 3:30PM|#
Tbone, I had to scroll up to your earlier comment to decide that
your 3:20 post wasn't sarcastic.
I guess Your Paranoia May Vary.
Old Bull Lee, I wish your "I don't particularly like the WAY" were
a bit stronger.
Jay|11.26.08 @ 3:31PM|#
I think the convictions should be thrown out, but the common pos needs to have her ass kicked (not literally).
anarch|11.26.08 @ 3:33PM|#
J sub, see you and raise you: Megan died for your yet-unenumerated-and-would-otherwise-have-been-overlooked sins.
Fluffy|11.26.08 @ 3:34PM|#
This is a tempest in a teapot. The gubmint is not going to
start going after TOS violators - they went after this woman
because she was a particularly mean-spirited bitch.
That only makes the decision to prosecute that much more
unjust.
If the government does not believe that the acts described in their
own theory of the crime merit prosecution in every instance, they
should not have brought these charges.
One thing I hate to hear in defense of bad law - and I hear this
shit from lawyers A LOT - is that bad precedents are held in check
by prosecutorial discretion. What the flying fuck kind of argument
is that? "Bad law is OK, because prosecutors won't actually use it,
don't worry"? Blow me. It should be possible to design just laws
that we can actually follow without contrivance.
|11.26.08 @ 3:36PM|#
Add me to the side that is surprised so many people here
think that this is OK. It is of no consequence to me how much of a
nasty bitch this woman is.
One of the problems with defending liberty is that you often find
youraself on the same side of odious people. Being philsophically
consistent must be difficult for many.
There not going after Nabokov's work, they're going after two girls
and a cup. There going after Aryan Nation's hate speech, not
Huckleberry Finn.
anarch|11.26.08 @ 3:39PM|#
Being philsophically consistent must be difficult for many.
Word.
(Is that still said?)
|11.26.08 @ 3:42PM|#
Fluffy shoots, and scores!
Bad precedent is bad precedent. Also, under the rule of law, if
it's illegal because of the consequences of Drew's actions, it's
always illegal. Acting like that's not the case is akin to having
the word "dunce" tattooed on your forehead.
Old Bull Lee|11.26.08 @ 3:43PM|#
anarch - It's stronger than it sounds, probably should have
phrased it differently. That is what I'm pissed about: surely, in
our litigious society, there are other legal ways to take this
bitch down?
Does anybody know if the Al Capone/tax evasion thing established
any dangerous precedents that we're suffering for now? I'm not
being snarky, I'm hoping a more historically knowledgeable
commenter can enlighten me. Granted, the 1920s was a different
society than this one.
Neu Mejican|11.26.08 @ 3:43PM|#
It should be possible to design just laws that we can
actually follow without contrivance.
I would say that this is no more possible in the realm of law than
it is in other complex areas (think economics). Why, theoretically,
should we be ABLE to design just laws that we can actually follow
without contrivance when be are theoretically UNABLE to design
economic plans that will produce the desired outcome?
The issues seem intertwined to me.
Laws, rules, & regulations are an important part of the process
of government, but I am not sure you can use them to eliminate the
need for human judgment for how to deal with the individual case in
front of you.
Better and worse laws, certainly, but the elimination of
"contrivance" seems impossible.
anarch|11.26.08 @ 3:48PM|#
I guess if you have to worry about whether your contemplated speech-act will cross a prosecutorial-discretion / judge's-predilection / jury-antipathy line, you better keep your stupid mouth shut. Oh, I bet I should have phrased that more politely.
|11.26.08 @ 3:53PM|#
What Neu Mejican said. The entire system has to rely on
prosecutorial discretion lest we lock up all the jaywalkers.
I didn't say this was "good" case law, only that I'm not
particularly exercised about Ms. Drew's lost liberty in this
instance.
Your mileage may vary.
|11.26.08 @ 3:55PM|#
Also, how would you gain satisfaction / serve justice if she
hadn't used a computer, but a telephone, or forged a series of
love-notes and left on the sidewalk in front of her house
instead?
Good point. In addition to Drew being scapegoated, it seems that
the new technology itself is being targeted as particularly
threatening. Something bad happened? Blame teh evil, unregulated
intertubez, of course!
Neu Mejican|11.26.08 @ 3:57PM|#
If the government does not believe that the acts described
in their own theory of the crime merit prosecution in every
instance, they should not have brought these charges.
So does their "theory of the crime" include "acts" that included
"harassment leading to harm" or some such thing. The outcome of the
action can certainly be considered part of the particulars of a
legal case...no?
Is it illegal to push someone? Maybe, maybe not. Is it illegal to
push someone down in a way that directly leads to injury? More
likely. The particulars of the case are important.
That said, I think they were stretching things here...but the idea
that the logic should be applicable in exactly the same way in
every case flies in the face of reality. The world just isn't that
easy.
Windypundit|11.26.08 @ 3:57PM|#
This is a tempest in a teapot. The gubmint is not going to
start going after TOS violators - they went after this woman
because she was a particularly mean-spirited bitch.
No, they're not going to go after all violators, just the ones they
don't like. You know, bad people who taunt teenagers into killing
themselves, or who advocate drug legalization, or who promote
online gambling, or who criticize important government
officials...
Neu Mejican|11.26.08 @ 3:59PM|#
John-David | November 26, 2008, 3:42pm | #
Fluffy shoots, and scores!
Red flag, basket doesn't count.
|11.26.08 @ 4:06PM|#
No, they're not going to go after all violators, just the
ones they don't like. You know, bad people who taunt teenagers into
killing themselves, or who advocate drug legalization, or who
promote online gambling, or who criticize important government
officials...
Or who post rabid, obscenity filled rants about incompetent,
immoral law enforcemnt officials like I've been known to do.
I gave Yahoo a fake name on each of my E-mail accounts.
Fluffy|11.26.08 @ 4:07PM|#
What Neu Mejican said. The entire system has to rely on
prosecutorial discretion lest we lock up all the
jaywalkers.
I completely disagree.
The fact that the system could not bear the arrest of all
jaywalkers only proves that criminalizing jaywalking is not
sound.
As a matter of fact, I would argue that the fact that a given law
or enforcement method could not survive universal application
should be a warning claxon to us that the law is unsound or
unjust.
We could fix the jaywalking law by making it a crime to jaywalk
only if you create a demonstrable hazard. Or we could eliminate the
law entirely. It would tilt the balance in our public places away
from automobile drivers a little, but so what? I don't have a
problem with that.
No one has a problem with every murderer being arrested and
prosecuted. Or every burglar. Or every mugger.
The problem only arises when it's a law that shouldn't be there in
the first place. "Oh noes, if we arrested every underage kid who
drank a beer, the system would be overwhelmed! Oh noes, if we sent
every pot smoker to jail, the system would be overwhelmed!" Good.
Overwhelm the system. Maybe then people will wake up.
|11.26.08 @ 4:13PM|#
As a matter of fact, I would argue that the fact that a
given law or enforcement method could not survive universal
application should be a warning claxon to us that the law is
unsound or unjust.
Absolutely. Also it's an invitation to abuse. Police can make
selective prosecutions of particular individuals for
rarely-enforced crimes, and use it as a mechanism to harass
elements of society or people that get on the wrong other person's
side. That's exactly how corrupt cops in the South kept blacks in
line for so long. (And still do, to an extent.) This is why racial
profiling is so controversial; because it's basically selective
prosecution.
When you have all these laws like this on the books, they can be
used by anyone with poltiical connections to target someone they
don't like. Happens all the f---ing time.
It's one of the major libertarian arguments for having as few and
as simple laws as possible. Precisely to avoid having selective
prosecutions and other abuses of power.
Fluffy|11.26.08 @ 4:13PM|#
So does their "theory of the crime" include "acts" that
included "harassment leading to harm" or some such thing. The
outcome of the action can certainly be considered part of the
particulars of a legal case...no?
That's not what she was convicted of.
She was convicted of unlawfully accessing a computer.
The theory of the crime was that by using a fake name and age, she
had violated MySpace's TOS and was therefore unlawfully accessing
their server.
They further argued that her harassment of the dead girl was also a
TOS violation, but that was superfluous. Drew unlawfully accessed a
computer the moment she used a fake name. Further TOS violations
would be redundant.
Neu Mejican|11.26.08 @ 4:14PM|#
We could fix the jaywalking law by making it a crime to
jaywalk only if you create a demonstrable hazard.
You've just kicked the prosecutorial discretion can down the
road.
Laws that are universally applicable do not exist. Even homicide or
burglary are justifiable in some circumstances.
Neu Mejican|11.26.08 @ 4:18PM|#
The theory of the crime was that by using a fake name and
age, she had violated MySpace's TOS and was therefore unlawfully
accessing their server.
So, are you saying she wasn't?
Further--
Do you not think that the motive is an element that adhere's to the
criminality of a particular action.
I kill you by accident, that's one thing. I kill you on purpose,
that is another. One is a crime, one is not.
Neu Mejican|11.26.08 @ 4:19PM|#
The theory of the crime was that by using a fake name and
age, she had violated MySpace's TOS and was therefore unlawfully
accessing their server.
Does this count as criminal deception (i.e., fraud)? Is that not
one of the black & white rules that applies universally?
Neu Mejican|11.26.08 @ 4:23PM|#
If I am following the Fluffy/Hazel Meade position, they are
arguing for "Zero Tolerance" policies across the board.
Any law that can be applied universally regardless of circumstance
is as zero tolerance policy.
I am pretty sure that would lead to a more abusive system than one
that allows discretion.
|11.26.08 @ 4:23PM|#
Fluffy, no disagreement with anything you said except the first sentence. An overhaul of the nature you propose would be fine by me. But it's not where we are at today and even if executed would not remove the need for prosecutorial discretion - every case has it's particulars.
Neu Mejican|11.26.08 @ 4:29PM|#
I gave Yahoo a fake name on each of my E-mail
accounts.
Does it matter why?
Is it okay up until you use their computers to conduct fraud,
harassment, theft, or the like?
I don't think the parallels people are drawing are apt.
Paul|11.26.08 @ 4:35PM|#
just laws that we can actually follow without contrivance
when be are theoretically UNABLE to design economic plans that will
produce the desired outcome?
Uhm, we can't design an economic system that has the desired
outcome. "Designed" economic systems always fail.
But I'm sorry, I fail to see the connection between the two, no
matter where my opinions may fall on economic intelligent
design.
We design laws. Some are bad. If we know a law is bad,
letting the bad law remain as such because our nation of men won't
abuse them, pinkie promise, honest injun seems like a very bad
idea.
Paul|11.26.08 @ 4:40PM|#
Even homicide or burglary are justifiable in some
circumstances.
Yeah, take O.J. Simpson, for instance...
*ducks*
Tacos mmm...|11.26.08 @ 4:44PM|#
Not often do I get to lament prosecutorial over-reach while at least getting some satisfaction that the right person got fucked over.
Except that the right person(s) didn't. The main reason that Megan
was so unstable is that her parents were divorcing, and didn't
treat her particularly well.
|11.26.08 @ 4:48PM|#
Does it matter why?
Is it okay up until you use their computers to conduct fraud,
harassment, theft, or the like?
According to the law, why matters not. I use those fake names for
all sorts of reasons that, while not illegal, hopefully piss off
those in authority. I encourage others to do likewise.
Fluffy|11.26.08 @ 4:49PM|#
Does it matter why?
Not the way the law was interpreted by this prosecutor. "Why"
doesn't matter at all.
Does this count as criminal deception (i.e., fraud)? Is that
not one of the black & white rules that applies
universally?
I think that you would have to show that MySpace suffered a harm.
If I walk into a room and tell you my name is Barack Obama, I have
deceived you but not harmed you. Since MySpace gives its pages away
for free, it's hard for me to see how they are the victims of a
criminal fraud here. They should be able to cancel the woman's
account, and maybe pursue her civilly for the dollar value of the
server time she consumed, but that's about it.
Laws that are universally applicable do not exist. Even
homicide or burglary are justifiable in some
circumstances.
That's not really what I'm arguing. There would be instances where
charges would be brought in a homicide case where the defendant
could prove justification. That's true. But those cases would not
fit the legal definition of a homicide under existing law.
I'm saying that no one would have a problem with it if every single
person who committed a homicide under existing law was brought to
trial. People WOULD have a problem with it if every person who
violated a website's TOS was brought to trial under this
interpretation of federal computer crimes law.
I don't accept the idea that it's OK to define very large groups of
persons as criminals [i.e. the set of people who have ever violated
the terms of service of a website] and then count on prosecutors to
only charge people who "really deserve it". We should write the
laws to define that smaller set of truly deserving people as
criminals.
Tacos mmm...|11.26.08 @ 4:55PM|#
Is it okay up until you use their computers to conduct fraud, harassment, theft, or the like?
Because from a legal perspective, it is not fraud for me to take
off my wedding ring, call myself Jack Johnson and go pick up women
in bars. And it is not fraud from that same if I make a myspace
page for a single man named Jack Johnson and use it to do the same
thing, got it?
It may be against the myspace terms of service, but the myspace
terms of service are and endless, byzantine form designed to
protect the company from lawsuits that has never had any kind of
legal authority before. It's kind of like making the tag on your
mattress into a legally binding consumer contract.
Fluffy|11.26.08 @ 4:56PM|#
Any law that can be applied universally regardless of
circumstance is as zero tolerance policy.
I am pretty sure that would lead to a more abusive system than one
that allows discretion.
I think that if we went through the litany of zero tolerance
disaster stories we would find that most of them boil down
to:
1. the wrong set of things being criminalized [which I have already
referenced above]
2. institutions which require private discretion to function
properly being treated as public institutions, which creates a
conflict that can't be resolved fairly [all of the public school
zero tolerance horror stories fall under this heading].
The murder statutes are written in a way that takes cognizance of
the necessary exceptions due to circumstances that you're talking
about. We can, in fact, apply those statutes with "zero tolerance",
and people who kill by accident, or people who kill justifiably or
in self-defense or what have you, won't be charged or convicted. We
can't do the same thing with federal computer crimes law, if this
conviction stands.
Old Bull Lee|11.26.08 @ 5:22PM|#
Tacos mmm... - "Except that the right person(s) didn't."
Do you really mean that? We can argue the law all day, but I can't
believe somebody would take up for a fucking ADULT who spent so
much time and effort bullying a teenager. I'm sure she didn't
intend for her to kill herself, but Lori Drew is a pathetic excuse
for a human being any way you cut it.
Neu Mejican|11.26.08 @ 5:24PM|#
Uhm, we can't design an economic system that has the desired
outcome. "Designed" economic systems always fail.
Designed legal systems are no less complex and always fail as well.
The society then reacts to that failure by revising, reshaping,
repealing, trying something different, etc...
I think you are drawing a false distinction between the complexity
of regulating human behavior in the realm of economics and in other
realms of interactions.
Fluffy,
Sorry, no matter how many particulars you put into the rule, there
will be cases where it strictly applies, but results in an
injustice.
Universally applicable laws will result in failures. And I doubt
that they would result in less failures than laws which assume
discretion/arbitration by actual humans thinking about the
particular case.
That includes discretion by the prosecutor on whether or not the
case applies, discretion on the part of the judge to allow the case
to go forward, discretion on the part of the jury as to whether
they believe the case has been properly argued.
Again, I agree this seems to be an oddly argued case, but I don't
see it as setting a precedent that all TOS violations are crimes.
There is a context in which this case took place that may apply in
the future to a similar case, but won't apply to most TOS
violations.
Neu Mejican|11.26.08 @ 5:28PM|#
If we know a law is bad, letting the bad law remain as such
because our nation of men won't abuse them, pinkie promise, honest
injun seems like a very bad idea.
I don't disagree. The position I disagree with is one that holds
that "bad laws" are the ones that can not be applied universally
(the Fluffy/H.Meade positon).
|11.26.08 @ 5:32PM|#
I am okay with judicial discretion, but "prosecutorial"
discretion? Heck no. That puts way too much power at the disposal
of an individual who is likely to be inclined to use it to campaign
for higher office. Think of the number of politically motivated
prosecutions that have occured. And you're saying your fine and
dandy with that, because some people "deserve it"? Heck, let's
bring back lynch mobs, why don't we?
What it means to be a nation of laws is that government officials
follow the laws, they don't make them up as they go along. You're
just going to trust the prosecutors not to abuse their power? This
whole "prosecutorial discretion" line is a grotsque means of
undermining the whole basis for the rule of law.
Neu Mejican|11.26.08 @ 5:44PM|#
Hazel,
You are just kicking the abuse-of-discretion can down the road.
What is the practical effect? A prosecutor who reviews the case
believes that your act is not criminal, but HAS TO prosecute
anyway? That's a huge waste of resources, and certainly an
injustice to the person being prosecuted needlessly.
There is not perfect solution. People design flawed
systems/processes that will, to some unavoidable extent, depend
upon the judgment and discretion of those individuals that
implement them. A system which allows several different individuals
discretion is more robustly resistant to abuse than one that only
allows discretion at one level. Disallowing prosecutorial
discretion make abuse more likely, not less.
|11.26.08 @ 5:46PM|#
"What it means to be a nation of laws is that government
officials follow the laws, they don't make them up as they go
along. You're just going to trust the prosecutors not to abuse
their power? This whole "prosecutorial discretion" line is a
grotsque means of undermining the whole basis for the rule of
law."
A-fucking-men. Anyone too stupid to understand this should just go
into their garage right now and get in their car and start it with
the door down. I'll post what to do next in about an hour. Just
don't leave the car until then.
|11.26.08 @ 5:50PM|#
Neu Mejican:
I'm not suggesting that we can have perfect laws all the time. But
we should be working towards a set of laws that can be enforced
uniformly. I'm all for revising and updating laws through a
legislative process or even by common law evolution.
But You're saying that there's nothing wrong with having laws on
the books that are only prosecuted 1% of the time and leaving it up
to presecutors to decide when to enforce them. You seem to be
suggesting that there's no point in even bothering trying to make
the laws just, and that it would be more just to let prosecutors
decide by arbitrary fiat who is "deserving" of prosecution. Why is
totally screwed up. If you're going to make that argument why
bother having laws on the books at all. Why not just have the
prosecutors arrest people for assholishness at their private
discretion?
Fluffy|11.26.08 @ 5:52PM|#
Sorry, no matter how many particulars you put into the rule,
there will be cases where it strictly applies, but results in an
injustice.
Universally applicable laws will result in failures. And I doubt
that they would result in less failures than laws which assume
discretion/arbitration by actual humans thinking about the
particular case.
If your position was correct, then we should only need the single
law "Don't do anything bad," and we should be able to take care of
everything on that basis with merely the application of discretion
by prosecutors, judges and juries.
And I'm sorry, but the fact that you believe you can come up with a
tortured thought experiment where a person is technically guilty of
murder [even with all the exceptions we already have built into the
law] but deserves to walk free does not mean that it's OK to
prosecute small numbers of unpopular people under laws that, if
interpreted literally, would result in millions of
prosecutions.
Even if we acted in typical Neu fashion and threw principle out the
window and went with a "preponderance of cases" rule or something,
it would seem very straightforward that a murder statute that is
inadequate in one in a million cases is better than a federal
computer crimes statute that is only applied in one in a million
technical violations.
Neu Mejican|11.26.08 @ 6:05PM|#
Hazel,
But we should be working towards a set of laws that can be
enforced uniformly.
Add a "for the most part" to that and we agree. Let's replay the
tape. I was reacting to this position.
"...the fact that a given law or enforcement method could not
survive universal application should be a warning claxon to us that
the law is unsound or unjust. "
Which, if applied universally, would raise a claxon for us that ALL
laws are unsound or unjust. The idea is that the law is unsound
because it can not be UNIVERSALLY APPLIED. No law can be
universally applied.
Even if we acted in typical Neu fashion... it would seem very
straightforward that a murder statute that is inadequate in one in
a million cases is better than a federal computer crimes statute
that is only applied in one in a million technical
violations.
It would be.
If that was your argument, I would agree with you. Your argument,
in typical Fluffy fashion, however, was that there is some ideal
version of the law that could be universally applied eliminating
the need for human judgment as a major playing in the judicial
system. And that, if a law fell short of that ideal, it was unjust
or unsound.
This black and white thinking leads to ridiculous statements like "
If your position was correct, then we should only need the
single law "Don't do anything bad,""
That is not the implication of what I am saying. I am saying that
an imperfect system is improved by acknowledging the human element
necessarily involved. Human judgments regarding the particular case
are a positive feature of our system, not a bug in it.
Neu Mejican|11.26.08 @ 6:09PM|#
does not mean that it's OK to prosecute small numbers of
unpopular people under laws that, if interpreted literally, would
result in millions of prosecutions
So you think this was about someone being "unpopular" ?
Really?
Neu Mejican|11.26.08 @ 6:12PM|#
More on the inadequacy of laws.
No matter how carefully you write your legal code, there will be
someone that commits an act that everyone agrees is a crime, should
be punished, created real harm, creates a situation that if not
dealt with will increase future harm...some act that is in all the
important senses of the word a crime, that will be perfectly legal
under a strict reading of the existing statutes.
BTW, to the extent that this case is an example, it has sparked
many jurisdictions to re-write their code to cover similar
situations in the future.
Neu Mejican|11.26.08 @ 6:19PM|#
Since MySpace gives its pages away for free, it's hard for
me to see how they are the victims of a criminal fraud
here.
The harm was to their reputation...she may have harmed their
ability to secure advertisers and clients. It would be like me
using the side or your store to post hate literature. It doesn't
cost you anything since you aren't making a profit off the wall
space.
Neu Mejican|11.26.08 @ 6:22PM|#
Fluffy,
BTW,
You usually avoid the ad hominem.
I am a far more principled individual than your slanderous,
slow-witted, myopic ass any day.
;^p
[/friendly ribbing]
Fluffy|11.26.08 @ 6:29PM|#
No matter how carefully you write your legal code, there
will be someone that commits an act that everyone agrees is a
crime, should be punished, created real harm, creates a situation
that if not dealt with will increase future harm...some act that is
in all the important senses of the word a crime, that will be
perfectly legal under a strict reading of the existing
statutes.
No, there won't be.
I will not agree that the act was a crime and needs to be punished,
so that shoots down your "everyone" right off the bat.
A law that has not been promulgated is not a law. I am absolutely
entitled to engage in acts that have not been explicitly made
illegal.
Individuals are entitled to explicit and clear notice if their acts
are going to be judged to be criminal.
And I do not think that mere publication of the text of laws
satisfies the promulgation requirement. One additional way in which
having vague laws, or innovative and "creative" prosecutions that
stretch the definition of existing laws, is injust in that it makes
a mockery of promulgation. The text of the law in the Drew case can
be read in such a way as to make Drew's behavior technically
illegal - but I think a defendant should be entitled to argue that
the fact that millions of people violate TOS agreements every day,
and up until this point no one has ever been prosecuted in this
manner, means that the prosecutor's unique interpretation of the
law is unpromulgated and therefore cannot be applied. Laws that are
never enforced in specific ways, or have never been enforced in
specific ways, should be regarded as unpromulgated or having
"lapsed" in promulgation.
|11.26.08 @ 6:30PM|#
Neu Mejican: This case isn't an example of a law where there's a
rare exception that shouldn't be punished (which I would leave to
the judge, personally).
This is an example of a law where >99% of all cases go
unprosecuted. If they were actually prosecuted, society would
rather quickly get around to eliminating the law, precisely because
people would instantly realize how unjust it was.
In this case, you have a prosecutor charging someone not because
the law "really" applies that one time in a thousand, but because
the person involved had incurred the community's wrath, and the
prosecutor went out and found a law on the books to use as an
excuse to charge her with something, anything. It's cases like this
that demonstrate why those laws *shouldn't* be on the books. There
will always be times when society will want an excuse to lynch
(figuratively) someone, and the more unenforced laws like that
there are, the more opportunity to do so there is.
You think Lori Drew should be punished in some way. Fine. Then you
should advocate for a law against verbal abuse or internet
harassment, or something.
But what you're actually advocating is that prosecutors be allowed
to abuse their discretion and commit one injustice in order to
remedy the lack of laws appropriate to the crime. Or that you can
commit some "lesser" injustices in order to serve a higher justice.
Can't make an omelet without breaking a few eggs. Etc.
Fluffy|11.26.08 @ 6:31PM|#
You usually avoid the ad hominem.
Yeah, but this is a few times in a row that when faced with a
principle you retreated into equivocation and claims of insuperable
complexity, so I figured it was time to twist the knife a
little.
Neu Mejican|11.26.08 @ 6:33PM|#
Fluffy,
Well there ya go, proving that universal application always
fails.
But since you are the 1 out of a million who disagrees, we can
ignore you...;^)
|11.26.08 @ 6:35PM|#
A law that has not been promulgated is not a law. I am
absolutely entitled to engage in acts that have not been explicitly
made illegal.
Individuals are entitled to explicit and clear notice if their acts
are going to be judged to be criminal.
Thanks. That's another good argument.
In effect, what's going on is that the prosecutor is trying to
charge someone ex post facto for a crime (if there was
one) that didn't exist at the time it was commited.
Since ex post facto prosecutions are unconstitutional, he had to
come up with an alternate law on the books that he could use
against her.
Neu Mejican|11.26.08 @ 6:37PM|#
Yeah, but this is a few times in a row that when faced with
a principle you retreated into equivocation and claims of
insuperable complexity, so I figured it was time to twist the knife
a little.
Nah.
You are holding onto a flawed position and couldn't come up with a
way out of it.
I didn't retreat before the principled argument, I pointed out that
the principle you are holding onto is unworkable, invalid, and
leads to flapdoodle and burning strawmen.
|11.26.08 @ 6:40PM|#
Even though Al Capone should have been put away, I never understood why he got sent to Alcatraz along with serial murderers on account of tax evasion. Even when I was a kid, something seemed not quite right about that.
|11.26.08 @ 6:41PM|#
Sorry, I was responding to this quote: "Does anybody know if the Al Capone/tax evasion thing established any dangerous precedents that we're suffering for now?"
|11.26.08 @ 6:41PM|#
From the wikipedia page:
An ex post facto law (from the Latin for "after the fact") or
retroactive law, is a law that retroactively changes the legal
consequences of acts committed or the legal status of facts and
relationships that existed prior to the enactment of the law. In
reference to criminal law, it may criminalize actions that were
legal when committed; or it may aggravate a crime by bringing it
into a more severe category than it was in at the time it was
committed; or it may change or increase the punishment prescribed
for a crime, such as by adding new penalties or extending terms; or
it may alter the rules of evidence in order to make conviction for
a crime more likely than it would have been at the time of the
action for which a defendant is prosecuted.
Basically, what Neu Mejican is saying is that prosecutors should be
allowed to use their discretion to ex post facto punish people for
crimes by selectively using unenforced laws against them.
Horrifying.
|11.26.08 @ 6:46PM|#
I should say ...
"... to punish people for acts that are not legally
crimes..."
Also, I'd say 4 out of 5 conditions for calling something an ex
post facto prosecution apply to this case. The rules of evidence
were altered to admit the suicide. The case was changed from a
civil to a criminal prosecution, which increased the possibily
penalties. The fouth charge would have made it a felony and upped
the prison term. And obviously, it criminalized an act that she had
no reason to think was illegal at the time.
Neu Mejican|11.26.08 @ 6:46PM|#
A law that has not been promulgated is not a law. I am
absolutely entitled to engage in acts that have not been explicitly
made illegal.
Individuals are entitled to explicit and clear notice if their acts
are going to be judged to be criminal.
On principle I would say that individuals are entitled to
reasonable notice that their acts are going to be judged to be
criminal.
But, that notice (the law) will be imperfectly crafted. If made too
explicit, the law will have less utility and will be less effective
at serving justice.
Neu Mejican|11.26.08 @ 6:49PM|#
Basically, what Neu Mejican is saying is that prosecutors
should be allowed to use their discretion to ex post facto punish
people for crimes by selectively using unenforced laws against
them.
Horrifying.
Not at all what I am saying.
That is what you have inferred from what I wrote, but that is not
what I am saying.
Prosecutorial discretion does not = ex post facto law.
Neu Mejican|11.26.08 @ 6:51PM|#
And obviously, it criminalized an act that she had no reason
to think was illegal at the time.
Which act is that again? You seem to want to take her actions out
of the context in which they occurred.
|11.26.08 @ 6:53PM|#
Prosecutorial discretion does not = ex post facto
law.
In this case it does. She's being punished for harassing the girl,
which wasn't a crime then (and probably still isn't). The TOS
violation is just an excuse.
|11.26.08 @ 6:59PM|#
But, that notice (the law) will be imperfectly
crafted.
The laws in question were intended to stop data theft - hacking.
Not to stop people saying nasty things to eachother over the
internet.
If made too explicit, the law will have less utility and will
be less effective at serving justice.
What you mean is that prosecutors will have less power at their
disposal with which to prosecute those "deserving" of crimes
(according to their discretion).
Which is fine with me. The power of government officials needs to
be limited. Checks and balances.
Neu Mejican|11.26.08 @ 7:00PM|#
Explicitness in crafting a law.
It is illegal to use someone else's computer without their
permission in order to _________________________ (list of harmful
acts).
Someone uses someone else's computer to harm someone, but the
harmful act was left off the list.
Better law, less specific.
It is illegal to use someone else's computer without their
permission in order to harm another person.
Discretion then gets to decide if this case involved one person
using another person's computer to harm a third person.
If a prosecutor thinks yes, then the case can be brought...human
judgment combines with the letter of the law to make a
decision.
Then a judge uses judicial discretion to either overturn or support
the prosecutor's judgment.
Then a jury uses human judgment again to decide the case.
The law is not universally applicable...it is a tool used by humans
to govern their society.
Better and worse laws exist, but attempt to over explicate or make
universally applicable laws will not increase their
effectiveness.
Neu Mejican|11.26.08 @ 7:03PM|#
Prosecutorial discretion does not = ex post facto law.
In this case it does.
No.
This may be a case of ex post facto law (the debate), but that does
not make prosecutorial discretion problematic. It is a case where
one thing may have led to another. But your argument is that the
existence of prosecutorial discretion is defacto a problem.
This case, if wrong, does not generalize as widely as you seem to
be arguing.
|11.26.08 @ 7:05PM|#
I don't know why they're bothering to put her in prison, she's just going to bust out and go after Spider-Man again.
Pendulum|11.26.08 @ 7:08PM|#
Neu,
Prosecutorial discretion enables the prosecutor to refuse to try
what are technical violations of law if he believes that justice is
not served by doing so. It does not and should not enable him to
prosecute someone who has not technically violated the law.
This imbalance is rooted in the age old and near-universally
accepted principle that the criminal law should err on the side of
underinclusion, not overinclusion. So, you are correct that the law
concedes that all laws are imperfectly crafted. However, you seem
to reject this nearly universal principle that it is better to
allow some 'wrongdoers' to avoid punishment at the price of
criminalizing some 'rightdoers'.
Clear and consistent application of criminal law principles, which
are underinclusive, provide citizens with a predictable map for
when they can expect criminal sanctions. This may not always result
in 'justice'. But it's clear that an unpredictable system which
relies solely on the unguided discretion of individuals will
destabilize citizens' abilities to make free choices. This *cannot*
ever result in 'justice' over any significant sized time period or
set of cases.
Pendulum|11.26.08 @ 7:10PM|#
Above, "citizens abilities to make free choices" should have "without threat of criminal prosecution" at the end of it.
Mad Max|11.26.08 @ 7:34PM|#
"Prosecutorial discretion enables the prosecutor to refuse to
try what are technical violations of law if he believes that
justice is not served by doing so."
Bear in mind that, in the Founding era, many states followed the
example of Virginia and included the following in their
Constitutions:
"That all power of suspending laws, or the execution of laws, by
any authority without consent of the representatives of the people
is injurious to their rights and ought not to be exercised."
This was copied off of a clause in the English Bill of Rights which
said that only Parliament could suspend the laws or their
execution, not the King/executive (to be sure, this clause had
anti-Catholic origins, because the King was trying to suspend the
harsh anti-Catholic laws, but in modern America this is hardly
relevant, since legislative bodies have no authority to pass such
laws).
What is the modern significance of this? Well, simply that the
Ninth Amendment to the U.S. Constitution provides that:
"The enumeration in the Constitution of certain rights shall not be
construed to deny or disparage others retained by the
people."
Thus, a widely-recognized right of the people at the time of the
ratification of the federal Constitution was that only those who
make the laws can suspend the laws. The executive authority is
specifically denied any such right of suspending laws, unless the
representatives of the people concur in it.
Has Congress agreed to allow the suspension of the computer-hacking
laws? Has Congress agreed to allow federal prosecutors, the
servants not the masters of the people, to pick and choose which
laws need to be enforced and who gets to be exempt from these
laws?
The Founding Fathers would say, "FUCK NO!!!" And I agree with them
even if I don't approve their language.
Jennifer|11.26.08 @ 7:40PM|#
I would rather it have involved harassment laws or some kind
of civil suit, but an adult who bullied and harassed a vulnerable
kid needs to face some consquences, whether she used MySpace,
postal letters, a phone or even said it in person.
She already faced consequences -- everybody hates her. Her
advertising-coupon book business went down the tubes, because
everybody told her advertisers "We will not give you our business
if you give money to this wretched woman." I doubt she could get a
job scrubbing toilets. She will likely (and deservedly) be
ostracized from polite society for life. There were plenty of
non-lynch-mob ways she was made to suffer already, without setting
damaging legal precedents.
Neu Mejican|11.26.08 @ 8:00PM|#
Pendulum,
I don't disagree with the position/principle you map out at all. It
seems different than the one that Fluffy was taking.
In my comments above, the comments about over-under inclusion were
aimed at how a law should be crafted, not how it should be applied.
There seems to be an important difference.
I am arguing that the process needs to recognize the human factor
and value the discretion/judgment of the humans involved. The
principle you articulate seems to agree.
Mad Max,
Not sure if I agree.
It seems that at some point someone has to make the decision for
each case and that is a duty of the executive, not the legislative.
Checks and balances and all that notwithstanding, the
implementation of the law involves decisions regarding when it does
and does not apply.
Mad Max|11.26.08 @ 8:02PM|#
"The main reason that Megan was so unstable is that her parents
were divorcing, and didn't treat her particularly well."
But wait . . . Veronique de Rugy
assures us in a recent Reason article that easy divorce is part of
the modern Freedom Revolution: "As a woman, I can . . . file
for divorce . . . without worrying about legal consequences (or
being drummed out of polite society)."
Now you're saying that the divorce of this kids' parents may have
contributed to her suicide?
If only someone had warned us that divorce might have a downside!
How
unexpected!
Neu Mejican|11.26.08 @ 8:03PM|#
But it's clear that an unpredictable system which relies
solely on the unguided discretion of individuals will destabilize
citizens' abilities to make free choices. This *cannot* ever result
in 'justice' over any significant sized time period or set of
cases.
I agree. This is why I said above that citizen's have the right to
reasonable notice. Reasonable = predictable in my mind.
Mad Max|11.26.08 @ 8:12PM|#
NM,
I agree that prosecutors can decline to prosecute if they think the
evidence isn't sufficient to convince an impartial factfinder, for
example if the witnesses are unreliable or in conflict.
Also, if the doctrine of necessity applies (exceeding the speed
limit in order to get your expectant wife to the hospital in time
for your baby's birth, using marijuana when medically essential to
keep a chronic pain patient in some semblance of comfort), then by
definition there is no crime at all, and prosecutors have the right
to make that decision for themselves. The criterion of necessity is
that the legal violation is strictly necessary to avoid a greater
evil, and I think we can agree that a chronic pain patient's
suffering is a greater evil than the supposed evils of leaving
pot-smokers alone.
If the law is unconstitutional, the defendant has an absolute right
not to be prosecuted at all - this should not be a matter of
prosecutoraial discretion.
I would also argue that there is such a thing as a divine law and a
natural law, emanating from God, which is superior to secular law.
Under this interpretation, a secular law requiring theft would
yield to the divine commandment not to steal. Of course, not
everyone may agree to this. If you think that the law only emanates
from human authorities, then this analysis does not apply.
If, however, there are enough witnesses and documentary evidence to
make the case clear, and the doctrine of necessity is inapplicable,
and the law is constitutional and in conformity with divine and
natural law, should prosecutors have the discretion not to file
charges because it would be unjust to apply the law in a certain
case? I would say no.
The alternative is arbitrary government, and throwing the rule of
law into the trash bin.
Pendulum|11.26.08 @ 8:17PM|#
I agree. This is why I said above that citizen's have the
right to reasonable notice. Reasonable = predictable in my
mind.
I like the example of statutory rape laws offered by another
poster. Suppose a state's statute of limitations is 14. Two men in
their 30s have callous but consensual sex with a 14 year old girl.
The vast majority of society considers their conduct morally
wrong.
Do they have reasonable notice sufficient to prosecute them? I say
no; you seem to say yes, if I understand correctly, because they
have reasonable notice that society condemns their action or
considers their action evil.
What if the girl, guilt ridden, kills herself? Was this
foreseeable? Prosecute them for something?
|11.26.08 @ 9:31PM|#
Neu :This may be a case of ex post facto law (the debate),
but that does not make prosecutorial discretion
problematic.
But you are arguing that what the prosecutor did in this case is an
acceptable use of prosecutorial discretion. Basically that
you think prosecutorial discretion should allow someone to
selectively prosecute someone for one thing in order to punish them
for something else that wasn't illegal.
You're basically saying that it should be legal for a prosecutor to
deliberately end-run around the constitutional ban on ex post facto
laws. That such things are within his discretion.
Even if I can imagine an extreme case where I might support such a
thing (say an extreme act of terrorism like 9/11), the Lori Drew
case doesn't even remotely qualify.
We're going to negate a centuries old principle on ex post facto
prosecution because some pathetic woman made mean comments on
MySpace? WTF? It's a horrible precedent.
Neu Mejican|11.26.08 @ 9:58PM|#
But you are arguing that what the prosecutor did in this
case is an acceptable use of prosecutorial discretion.
You, perhaps, made this inference from my statement above "That
said, I think they were stretching things here..."
Or maybe from where I said: "Again, I agree this seems to be an
oddly argued case..."
What I did argue was that people concerned about the precedent this
sets are assuming it has a parallel to behavior that would not
apply due to differences in context.
That is different than saying I think this was acceptable.
Fluffy argued not that this case was an example of someone
misapplying a necessary and appropriate part of the judicial
system, but a symptom of a bug in the system that is inappropriate.
You jumped on board and vigorously agreed that prosecutorial
discretion is defacto a bad thing due to the POTENTIAL for abuse.
From that point forward this was not a discussion of this
particular case, but of the broader issues.
Don't confuse questions about the implications of people's
positions with my advocacy of any particular position in the
debate. I try to be clear in stating my opinion.
So again, I think they were stretching things here...and I agree
this seems to be an oddly argued case.
That doesn't mean I think the implications of this decision are
wide, or will result in a significant hampering of internet
freedom.
Neu Mejican|11.26.08 @ 10:10PM|#
Pendulum,
Re: your thought experiment.
They had reasonable notice that their actions were, in fact,
legal.
What if the girl, guilt ridden, kills herself? Was this
foreseeable? Prosecute them for something?
Details matter. Did they specifically set out to harass her? Did
they commit acts designed to cause emotional harm that could be
reasonably construed to break some other law (clearly not the
statutory rape laws, but some other law)?
Without the details it is impossible to answer. The (stretched)
logic of the prosecution is that Drew's actions did indeed fit
under the umbrella of misrepresentation in order to gain
information (her stated purpose, btw).
CFAA
Intentionally accessing a computer without authorization to
obtain:...Information from any protected computer if the conduct
involves an interstate or foreign communication."
Seems like it says "to obtain information" and that Lori Drew's
defense of her actions is that she intentionally set up a fake
account to obtain information. If MySpace's computer's are
protected, then the stretch is not outside of a literal reading of
the law.
No?
It seems to go beyond the spirit, however.
Mad Max|11.26.08 @ 10:15PM|#
"I like the example of statutory rape laws offered by another
poster. Suppose a state's statute of limitations is 14. Two men in
their 30s have callous but consensual sex with a 14 year old girl.
The vast majority of society considers their conduct morally
wrong."
Well, I suppose that depends on whether the abortionist to whom the
girl goes if she gets pregnant fulfills its statutory duty to
report cases of child abuse to the police.
Consider this
video, in which a girl tells a Planned Parenthood staffer that
she's 15 and pregnant by her 23-year-old boyfriend, and the staffer
tells the girl to "figure out a birthdate that works," that is,
fake the information on her intake form so that it looks that she's
at the age of consent.
Neu Mejican|11.26.08 @ 10:19PM|#
The alternative is arbitrary government, and throwing the
rule of law into the trash bin.
I disagree.
Things are never all or nothing.
There is an amorphous blob of behaviors that are against the law
according to the law (divine or not). It has fuzzy boundaries that
are not easily determined. The process appoints an arbiter that
makes decisions about whether a particular behavior fits within
that blob or not. Most cases are easy to decide. Some are not. The
arbiter needs to have the power to make the decision in the tough
cases.
As I argued above. The potential for abuse is reduced if that
arbiter's decisions are subject to review by other arbiters.
Limiting the number of people charged with making a reasoned
judgment of the particular cased does not reduce the chance of
abuse, it increases it.
Mad Max|11.26.08 @ 10:24PM|#
"The process appoints an arbiter that makes decisions about
whether a particular behavior fits within that blob or not."
If that is that case, the arbiter should be the people themselves -
in their capacity as grand jurors or as trial jurors. Appointing a
government employee to the task of arbiter is above that person's
pay grade.
Mad Max|11.26.08 @ 10:31PM|#
Another exception, subject to certain limitations to be
described: Plea bargains.
The prosecutor is conscientiously convinced that the defendant
committed crime X, but is willing to accept a plea of guilty to
lesser crime Y, out of respect for the need of conserving scarce
taxpayer money and not clogging the court system with all the other
defendants who are awaiting trial - often staying in prison without
bail while waiting.
Plea-bargaining need not be the same as *purchasing* testimony -
that is, the implicit agreement that if you testify against
so-and-so who is targeted by the prosecutor you will get a more
lenient sentence. This is indistinguishable from slipping a witness
an envelope full of cash in exchange for testimony. If buying a
witness with money is wrong, buying the witness with a promise of a
few extra years of freedom is also wrong.
Not to mention the concept of infamous crimes - someone who
commited certain types of crimes used to be considered incapable of
testifying against other people, because he was not a trustworthy
person. American law no longer pays attention to this concept,
allowing "jailhouse snitches" and testimony from people who have
pled guilty to horrid crimes.
anarch|11.27.08 @ 12:04AM|#
Say, don't Chris Hansen and company violate the TOS's of those chat rooms by professing to be who they are not?
|11.27.08 @ 1:40AM|#
Neu:
Here's what I think it comes down to:
Fluffy and I (and others) are arguing that barely enforced laws
shouldn't be on the books, precisely to avoid prosecutors engaging
in selective prosecution.
You seem to be arguing that selective prosecutions are a useful
tool within the prosecutors discretion, necessary to deal with
crimes that technically aren't covered by existing laws.
I'd argue that attempting to use selective and creative
prosecutions to go after acts that otherwise aren't technically
illegal is basically end-running the ban on ex post facto
prosecution. They are making up, after the fact, an interpretation
of a law that would never stand trial otherwise, to have an excuse
to charge someone for an act that wasn't illegal at the time.
If you're going to take the position that prosecutors should be
allowed to use their discretion to prosecute acts that aren't
technically covered by existing laws, why bother with the selective
prosecutions and creative interpretations? Why not just give
prosecutors the discretion to make up a name for the crime and
charge them with it? In other words, why not just legalize ex post
facto prosecutions?
Neu Mejican|11.27.08 @ 2:32AM|#
If you're going to take the position that prosecutors should
be allowed to use their discretion to prosecute acts that aren't
technically covered by existing laws
I am not taking that position.
You seem to be arguing that selective prosecutions are a useful
tool within the prosecutors discretion, necessary to deal with
crimes that technically aren't covered by existing laws.
I am not taking that position.
Fluffy and I (and others) are arguing that barely enforced laws
shouldn't be on the books, precisely to avoid prosecutors engaging
in selective prosecution.
I have no trouble with the basic idea. However, that is not the
position Fluffy put forth that sparked my response.
Again, to replay the tape:
Fluffy: "the fact that a given law or enforcement method could not
survive universal application should be a warning claxon to us that
the law is unsound or unjust."
Hazel: "Absolutely. Also it's an invitation to abuse."
The principle being expressed indicates a belief that you can take
the human element out of the process and improve the results. The
flaw is in the basic idea that a law is unjust or unsound BECAUSE
it can not be universally applied. That rule, if universally
applied, invalidates ALL laws.
It doesn't address the problem you seem to want to address.
Neu Mejican|11.27.08 @ 2:37AM|#
Hazel,
To be explicit...
Zero tolerance = universal application
Fluffy has defended the idea that a properly written law will be
just even if applied with a zero tolerance approach...that is just
hogwash.
You have defended his position every step of the way.
There is a middle ground between zero tolerance (the position
Fluffy staked out) and ex post facto/giving "prosecutors the
discretion to make up a name for the crime and charge them with
it."
That middle ground involves prosecutorial & judicial
discretion, with checks and balances built a well defined process
("due process").
And a right to a trial by a jury of your peers.
Fluffy|11.27.08 @ 9:40AM|#
Fluffy has defended the idea that a properly written law
will be just even if applied with a zero tolerance approach...that
is just hogwash.
My position is that we should strive to define laws that can
survive universal application, and that the fact that a law would
be disastrous if universally applied should warn us that there is
something wrong with that law.
Your counterargument - that human limitations and an infinite range
of possible circumstances make achieving such a set of laws
impossible - isn't really as compelling as you think it is. In
medicine [as an analogy], it may be that we will never achieve the
ultimate goal of eliminating all disease and pain - but that does
not mean that it's pointless to continue to attempt to do so. We
should strive to craft laws that are clear and explicit, and we
should seek to make incremental progress towards that goal, even if
we can never make our laws perfect. And your counterargument
doesn't really speak to my negative point at all: even before our
laws are perfect, if we observe that a particular law would cause
widespread injustice and chaos if universally applied, that remains
a good indicator that something is wrong with that law. The fact
that universal application of other laws [as currently written]
would lead to isolated injustices as well does not improve the
status of the laws that would lead to utter disaster.
I also note that you consider law primarily a tool of social
mediation. That makes an ad hoc process involving lots of "loci of
discretion" look acceptable to you, as long as each individual
discretionary power is balanced out by others. That's not
surprising, since that's what conflict mediation models tend to
look like. But social mediation is only one function of the law.
The law also exists to define the relationship between the
individual and the state. A well-crafted set of laws creates a
framework within which individuals can exercise their liberty,
because they can know that their actions are legal and will not
lead to punishment. Every ambiguity in the law undermines this
function. At every point at which the individual can't be certain
if their behavior is legal or not, without trying to anticipate the
random discretion of magistrates, liberty is constrained and
justice is undermined. This means that very human and
reasonable-sounding models that apply very nicely to other types of
conflict mediation don't apply very well to this aspect of the
law.
I also think that a critical function of the law is the definition
of the relationship between citizens. A law that millions of people
can break without punishment, but which leads to punishment for ONE
citizen based on the discretion of ONE prosecutor, cannot be just -
or, at least, cannot be being applied justly - because this makes a
mockery of the equal protection of the laws. I can join MySpace
right now and say my name is Fluffy Greycat and I am 99 years old,
and use that identity to become MySpace Friends with people, and
the law will do nothing to me. To that extent I am being elevated
to a position of legal privilege relative to Lori Drew, and that's
crap.
Neu Mejican|11.27.08 @ 11:58AM|#
Fluffy,
Your counterargument - that human limitations and an infinite
range of possible circumstances make achieving such a set of laws
impossible - isn't really as compelling as you think it
is.
I am not arguing that the problem with your position is that it is
unachievable. I am arguing that it is not even a valid goal. It
highlights one part of the judicial process, the written law, and
places its universal applicability as the primary criteria for
validity. But justice is served by a process that involves human
agents acting reasonably with checks and balances built in to
reduce the chances that those agents will act in bad faith.
Every ambiguity in the law undermines this function. At every
point at which the individual can't be certain if their behavior is
legal or not, without trying to anticipate the random discretion of
magistrates, liberty is constrained and justice is
undermined.
One of the things the person knows is that the process involves
human agents that will judge a particular case based on the context
and the spirit of the law, rather than blindly applying an
algorithm.
A law that millions of people can break without punishment, but
which leads to punishment for ONE citizen based on the discretion
of ONE prosecutor, cannot be just - or, at least, cannot be being
applied justly - because this makes a mockery of the equal
protection of the laws. I can join MySpace right now and say my
name is Fluffy Greycat and I am 99 years old, and use that identity
to become MySpace Friends with people, and the law will do nothing
to me. To that extent I am being elevated to a position of legal
privilege relative to Lori Drew, and that's crap.
Your actions would not be reasonably construed as being equivalent
to Lori Drew's actions, so your analogy is inapt. Lori Drew was
prosecuted in the context or a particular set of actions with a
particular motivation that had particular consequences that was
determined by a well defined process to be illegal. Your case
wouldn't survive the same scrutiny.
I have already stated that I don't see this as a particular success
for the process, but that doesn't make it a dangerous precedent
setting case either.
The bigger impact of the case is the creation of new laws that more
clearly define internet harassment as a crime. These were created
because communities recognized the challenges this case presented
to the process.
|11.28.08 @ 12:53PM|#
That was a good read guys. I don't know why everyone else reads these blog comments, but I read them for these kinds of exchanges. Thanks.
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