The Volokh Conspiracy

Kerr is an important professor and author in this area. He has also been a staunch academic opponent to further Constitutional controls, which has made his writings on Jones v United States and the 3rd Circuit cell site location case interesting to read. Look up things he has written about "Matrix" theory of fourth amendment protections. I don't think Kerr really grasps the level of unease that the courts are developing regarding the capability of dragnet surveillance by the government of this sort. But definitely, anything he has written is pretty much a must-read in this field. Edit: Also Prof. Kerr blogs at http://www.volokh.com and http://www.scotusblog.com

"Kind of civics class by crisis." And one should be cogent of the maxim that "Hard cases make bad law." That from the judicial side of things, but apropos here. On the other hand, I think we're fortunate to have a meta-process that the public is involved in, that seems to work better than a lot of the alternatives. As for your question and uncertainty, I've seen quite a bit of good discussion at The Volokh Conspiracy in the comments to various postings (http://volokh.com/, it's a high quality group law blog by various law professors and the like). (In fact, if you haven't visited it before, check it out, all sorts of tasty stuff right now, e.g. the 11th Circuit has just made what is possibly a bad ruling on email and 4th Amendment search and seizure. I wish I had time to follow it...). In the discussions you'll find some comments on at least one prior ruling by the Supremes in this area; they are very reluctant but not entirely so.

It's quite possible to break out of picket-fence-and-white-bread without breaking the law. Or at least, without breaking the law any more than anyone else does: http://www.volokh.com/posts/1248668478.shtml (I don't find Kozinski and Tseytlin's original in a brief search, though it should be out there. Very much worth reading, and helpful to consider that federal law isn't the only possible risk.)

The Volokh Conspiracy post, "How Federal is Star Trek's Federation?", is probably the best thing I've read on Trek's political economy. It describes something rather more authoritarian ... http://www.volokh.com/posts/1190182117.shtml

That's pretty much what they did, but Swartz didn't stop before they called the police. http://volokh.com/2013/01/14/aaron-swartz-charges/ is a good read btw.

Chris, the ACLU staffer quoted in the article, is not an attorney. Chris has likened selling 0-days to being an arms merchant -- not a bad comparison -- but I'm not aware of an ACLU policy calling for a ban on selling 0-day exploits. To respond to your point more broadly, the ACLU has done excellent work on many Internet issues, and has represented me in court on multiple occasions. But it is not a monolithic entity, its board members do not always make the decisions you and I might prefer, and it does not always come down on the free speech side of an issue: http://www.volokh.com/2011/04/27/harvey-silverglate-on-the-aclu-and-fr…

I always thought it was funny: On the old http://www.volokh.com/ site, most blog posts would have a lively debate in the comments. But every post by Stewart Baker had comments turned off. It's nice that The Volokh Conspiracy is now on the Washington Post because now Stewart Baker can't disable comments and people can point out the elementary flaws in his reasoning.

Privatizing prisons generally reduce the financial incentive to incarcerate more people. In non-privatized states, you generally have a prison guard union. The prison guard union lobbies for more prisoners and gets more money. Simple as that. A non-monopolistic prison corporation spends their own money lobbying, and all the other prison corporations get to reap the benefits. Classic collective action problem. http://www.volokh.com/2013/01/10/the-effect-of-privatization-on-the-pu… http://www.volokh.com/2013/01/11/the-effect-of-privatization-on-the-pu…

The ACLU has abandoned any pretense of actually being concerned about civil liberties in favor of being a generic left-wing advocacy organization. For example, just recently they were perfectly happy to throw out a commitment against double jeopardy in order to stoke some standard left-wing racial grievances[1]. I used to think if you donated to both the ACLU and the NRA you could cover all your civil liberties pretty well, but I don't think the amount of good coming out of the ACLU is worth it anymore. At least the EFF is still pretty good, even if airports are a bit out of their domain. [1] http://www.volokh.com/2013/07/18/correction-re-the-aclu-and-double-jeo…

Great legal analysis on Volokh Conspiracy: http://www.volokh.com/2013/08/18/district-court-holds-that-intentional…

See also this excellent article at The Volokh Conspiracy: A Real Live Third Amendment Case: http://www.volokh.com/2013/07/04/a-real-live-third-amendment-case

Orin Kerr explains: http://www.volokh.com/posts/1211991760.shtml His argument is that: it would be inconvenient to follow the 4th amendment in the 21st century, because computers give people the technical power to have conversations in private that would be otherwise need to be public, so government should ignore the 4th amendment. In short, there is no such interpretation, but government lackeys and show-off contrarians make up sophistic excuses for the governments illegal actions.

When companies get more revenue by allowing full albums on YouTube compared to selling the cd/mp3, it's possible that YT are on a exponential curve upwards. Good read: http://www.volokh.com/2012/12/28/copyright-and-full-albums-on-youtube/

Here's a better analysis, which concludes that the charges were legally appropriate: http://www.volokh.com/2013/01/14/aaron-swartz-charges/ It will be followed by another article that will examine the tactfulness of the prosecution.

It's also worth noting that he literally wrote the book on the law of computer crime [1], and served as a pro bono (free) defense attorney _against_ the DOJ in the Lori Drew MySpace case [2], and he was extensively critical of the government in that case [3], and he has testified before Congress to say that the Computer Fraud and Abuse Act is too broad.[4] He worked for the DOJ from 1998-2001. If he harbors sympathies for the government, they're pretty well hidden at this point. [1] http://www.amazon.com/Computer-Crime-Law-American-Casebook/dp/03142045… [2] http://en.wikipedia.org/wiki/United_States_v._Lori_Drew [3] http://www.volokh.com/archives/archive_2008_05_11-2008_05_17.shtml#121… [4] http://www.volokh.com/2011/11/14/my-congressional-testimony-on-the-nee…

And in constitutional law, Eugene Volokh of the Volokh Conspiracy (http://www.volokh.com/).

I'm not sure what blogging niches of the web this author is referring to, but the economic/political blogs that I frequent share links all the time, and they all have blogrolls, too (Ex. [1][2][3]). I even picked up links from a bunch of them on my amateur econ/pol blog a few months ago when I pointed out a mistake in a graph a bunch of them were sharing. So linking is not completely dead from where I sit. It's not even dying. YMMV. [1] http://marginalrevolution.com/ [2] http://econlog.econlib.org/ [3] http://www.volokh.com/

http://mises.org (economics and politics) and http://volokh.com (law)

I always picture sacks with '$' on the side rather than suitcases, but I always have difficulty shaking the feeling that lobbying is basically a cash transaction. I constantly have to talk myself out of this. The following is a great, brief string of reasoning that helps: http://volokh.com/2010/01/24/money-and-speech-2

Amazing that these data are so upsetting to news.YC's audience. I wonder if one of the downvoters could articulate what it is about these facts that needs to be suppressed. It seems relevant to me that Obama sought such a radical preacher as his mentor, and it was only when one of his other spiritual mentors (http://www.volokh.com/posts/1207631070.shtml ) got in trouble that he finally left the church.

Fred Thompson is doing something similar -- he asked a few bloggers for their best questions for him. There are actually a few substantive questions -- http://volokh.com/posts/1189206799.shtml . I don't think normal candidates want to talk about Federalism and Campaign Finance Reform.

Well I suppose it's a theory ... but I'd guess they were not that familiar with the 00s, when places like Facebook that had poor moderation at the time (they didn't employ anything like a realistic number of moderators) started to create concern for some people / parents. Then there was a movement to change the nature of the web and [1] [2] signalled the death of hearty debate ... it was actually still ok if one declared their name and braved being snatched up in the night if they annoyed the wrong people. Of course it aimed to stop certain people that would blow off steam after work by ruthlessly abusing people for laughs - but down the track with forum and social media hosting software slowly having to change their TOS to comply with US law, it also gave blow hard pretentious idiots a platform they could not be greatly challenged to rant a bunch of BS facts with little online consequences. [1] https://forums.matrixgames.com/viewtopic.php?t=84680 [2] https://volokh.com/archives/archive_2006_01_08-2006_01_14.shtml#113692…

> Have a look at this: https://m.slashdot.org/story/180969 Clearly there is precedent in the US and elsewhere for prosecution based on accessing URLs "prosecution based on accessing URLs" is a dishonest way of describing this case. It's a prosecution based on accessing URLs with malicious intent, while the persons responsible knew they were not intended to access said URLs. That's like saying "prosecution based on walking through a doorway". Well yeah, except it was the middle of the night and the door to someone else's house had been accidentally left unlocked. >Idk that much about this case. It seems to me that Swartz was in a hell of a lot of trouble, that could have gotten him a prison term along with financial and career ruination. He clearly should not have killed himself but that kind of stress can make people lose sight of the future. Swartz had good lawyers; he was certainly aware that he wasn't in big trouble. He was facing neither financial nor career ruination. The damages he had caused were far from enough to result in financial ruination. The charges had made him even more of a celebrity and would've been a boost to his career. https://volokh.com/2013/01/14/aaron-swartz-charges/ https://volokh.com/2013/01/16/the-criminal-charges-against-aaron-swart… Orin Kerr, a top subject matter expert addressed this extensively. In the second part he also offers the best criticism of CFAA, which is that it's almost entirely redundant…

He wasn't actually facing 35 years. DoJ press releases don't take into account a couple of aspects of sentences when they come up with a number. First, they ignore that actual sentencing takes into account assorted aggravating and mitigating factors. To get the maximum on a charge you have to have several aggravating factors and few mitigating factors. Basically, if it is possible that someone could receive 20 years, say, for a given charge--even if to get 20 years they would pretty much have to be that crime's equivalent of Al Capone, then they are going to say 20 years on every press release involving that crime even if it concerns the mildest possible instance of it. Second, there are often multiple charges that could apply to the same act and would require largely the same elements of proof. Prosecutors can charge you with all of them and let the jury decide which, if any, to convict you of. Many of these are grouped for sentencing, so that if you are convicted of more than one in the same group you only get sentenced for one of them. Grouping is ignored in the press releases. If you are charged with three things, with a max of 10 years each (and remember, that 10 years is already greatly exaggerated as described earlier), the press release is going to say you are facing up to 30 years. This really needs to be changed. The DoJ knows what facts they intend to try and prove about your particular instances of the crimes they are charging you with. They are perfectly…

> As an example, we let the guilty go because of lack of evidence, where authoritarian regimes don't. I mean, that's one theory. Here's Eric Posner: http://volokh.com/2009/11/18/why-has-holder-decided-to-try-khalid-shei… > the Obama administration has decided to offer a two-tiered system of justice. We might call them the “high-quality” (civilian) tier and “low-quality” (military) tier. The high-quality approach offers greater accuracy; the low-quality approach offers less accuracy. The Obama administration will use the high-quality system against people when it has a strong case, and the low-quality system against people when it has a weak case. > This approach makes sense. Endless detention without trial is no longer a politically viable option. The government will make a judgment as to whether a suspect is dangerous or not. If the case is good, the high-quality system will be used. If the case is bad, the low-quality system will be used. In this way, the government can ensure that people it thinks are dangerous will be locked up. > This system is superior to the two possible one-tier systems. A pure low-quality system (military commissions only) suffers from credibility problems. People will not believe that all the people who are convicted are guilty. A pure high-quality system (civilian courts only) would result in too many acquittals. People who the government believes are dangerous will be back on the streets. The…

> The federal government of the United States claims this as well, for example see Gilmore v. Gonzales. That's not entirely correct: http://volokh.com/posts/1134369043.shtml > Now, just to be clear, I have no idea whether the TSA's decision not to publish the text of its regulations is a smart one. I can understand why they don't publish the names on the No-Fly list, but it's not obvious to me why they can't publish the regulation or rule (or the relevant part) requiring an ID. Maybe this is a misguided law, or an appropriate law being implemented in a misguided way. I don't know; as I said, this isn't my area of expertise. Further, I think reasonable people can disagree on whether TSA's practices are a big deal. Some will find them deeply troublesome, and others won't. > At the same time, I think it's important to recognize that this dispute appears to be significantly narrower than Kevin's post suggests. First, Congress isn't passing any secret laws; the undisclosed authority is a regulation, not a statute, and the TSA's requirement is widely known. Second, no one is being arrested; as I understand it, the issue is only who can be let on an airplane. > Finally, the court isn't being called on to interpret a law it has never seen. DOJ filed a motion attempting file a version of its brief under seal. According to the government's claim at oral argument, the version of the brief filed under seal would have included the text of any regulations TSA follows. The Ninth…

> The advantage to prescriptive rules for language is that you don't lose the context of a language over time or distance That's assuming that even works. I'm not sure it's clear prescribing language rules has ever worked at stopping the natural evolution of language. Most grammar nazi's (if there's a less politically laden term, let me know) focus on a small amount of "common mistakes" but don't seem to care or even notice the avalanche of tiny changes to language occurring at the same time. And do they win with regard to the changes they do focus on? Even in 1874, the "correct" way to say people are building a house in the passive voice was "the house is building", which even in the most formal communications has been completely replaced with the nonsensical and uncouth "the house is being built".[0] 0: http://volokh.com/2011/01/15/the-best-writers-say-the-house-is-buildin…

>In the Craigslist vs 3Taps, the damages were non-existant but they still won because of the C&D letters. (Technically they settled.) Read up on that case and you'll see that even absent a C&D, the judge reasoned that Craiglist's IP ban against 3Taps was a separate incident of affirmatively communicating its intention that 3Taps refrain from accessing the site: > The calculus is different where a user is altogether banned from accessing a website. > The banned user has to follow only one, clear rule: do not access the website. The notice > issue becomes limited to how clearly the website owner communicates the banning. Here, > Craigslist affirmatively communicated its decision to revoke 3Taps’ access through its ceaseand-desist > letter and IP blocking efforts. 3Taps never suggests that those measures did not > put 3Taps on notice that Craigslist had banned 3Taps; indeed, 3Taps had to circumvent > Craigslist’s IP blocking measures to continue scraping, so it indisputably knew that Craigslist > did not want it accessing the website at all. The judge continues to suggest that using proxies at all is atypical and may demonstrate an intention to violate the CFAA. Ruling at http://www.volokh.com/wp-content/uploads/2013/08/Order-Denying-Renewed… . >So if a website sends you a letter to stop, do not continue scraping them. Until that happens, it's fair game. ToS is not legally binding. Those two cases were the result of…

It is not a law of the universe, but it is somewhat more than fashion. In California, it is the law. Quoting from http://volokh.com/2013/08/06/lawsuit-over-firing-based-on-employees-re… In 1937, “the California Legislature, recognizing that employers could misuse their economic power to interfere with the political activities of their employees, enacted Labor Code sections 1101 and 1102 to protect the employees’ rights.” Labor Code section 1101 provides: “No employer shall make, adopt, or enforce any rule, regulation, or policy: [¶] (a) Forbidding or preventing employees from engaging or participating in politics …. [or] (b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.” Labor Code section 1102 provides: “No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.” These sections are designed to protect “ ‘the fundamental right of employees in general to engage in political activity without interference by employers.’ ”

To piggyback on this, one of the things Jonathan Haidt has shown in his work on ideological bias is that liberals are unable to accurately understand the conservative worldview, while both conservative and moderates are able to accurately explain liberal positions. Here's an explanation of the study: >One other point that I find really interesting and important about Haidt’s work is his findings on the ability of different groups to empathize across these ideological divides. So in his book (p. 287) Haidt reports on the following experiment: after determining whether someone is liberal or conservative, he then has each person answer the standard battery of questions as if he were the opposite ideology. So, he would ask a liberal to answer the questions as if he were a “typical conservative” and vice-versa. What he finds is quite striking: “The results were clear and consistent. Moderates and conservatives were most accurate in their predictions, whether they were pretending to be liberals or conservatives. Liberals were the least accurate, especially those who describe themselves as ‘very liberal.’ The biggest errors in the whole study came when liberals answered the Care and Fairness questions while pretending to be conservatives.” In other words, moderates and conservatives can understand the liberal worldview and liberals are unable to relate to the conservative worldview, especially when it comes to questions of care and fairness. From:…