Comment by tptacek
13 years ago
Note that 16 USC § 3373 makes it pretty clear that you cannot in fact be sent to prison simply for possessing an undersized lobster.
13 years ago
Note that 16 USC § 3373 makes it pretty clear that you cannot in fact be sent to prison simply for possessing an undersized lobster.
This is perhaps a bad example then. I was referencing James Duane, a law professor, who's quote was:
"People have been convicted in federal court for violating this statute because they brought back a 'boney fish' from Honduras, not knowing that Honduran law, not American law, but Honduran law forbade the possession of the boney fish. People have been been convicted under this law because they were found in possession of what's known as a short lobster."
In general it seems to me that there are a lot of laws, many of them are confusing and esoteric, and their enforcement is often selective. I've seen court cases where people were acting 'normally' under constant surveillance, and it doesn't go well.
However, I'm actually more interested in the question of how celebrated legal victories would probably not have been possible without the ability to break the law.
Bringing Kinder Surprise eggs into the US carries a fine of 2500 USD [1] per egg with it ...
How many eggs would one have to attempt to bring with you to the US before it becomes a jail-able offense? Never-mind that most import stores seem to have them in abundance and somehow get them past customs!
[1] http://www.komonews.com/news/offbeat/Seattle-men-busted-at-C...
I seem to recall from a trivia-style book (of all things) that many states have insane laws still technically on the books. Things like men can't wear dresses on Friday or that all men on the streets must have hats.
So, undoubtedly we need to ensure our legal code is cleaned out of cruft like that.
But I would be careful of complaining about the selectivity of enforcement. Take our hero Snowden for example. He demonstrably broke the law, and even Schneier agrees that the law he broke has purpose.
Not that Snowden is going to be pardoned of his crimes (another form of selective enforcement, btw), but he wouldn't even have the possibility of escaping charges for his "crime" without the ability to apply common sense to peculiarities and circumstances of his case.
Indeed, most legal beagles I know of complain heavily about a different type of regime without selective enforcement: "Zero tolerance" policies in schools that result in insanely stupid punishments being meted out to schoolchildren. Does anyone else remember HN's reaction to the science student in Florida who "made a bomb" at school?
On the contrary, the bulk of this article is attempting to explore how the ability to break the law is valuable for society.
However, when I talk about selective enforcement, what I mean is that in a world where we're all technically violating the law at some point, and where we're all being monitored intensively, then it's essentially up to those in power to "decide" who is punished and who isn't, without any real standard of measure. In that world, it seems pretty clear who ends up in jail and who doesn't.
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Most of the really absurd laws are local/state, not federal, though. (the absurd federal stuff seems to mainly be budget funding and subsidies, where even if it's clearly dumb, it's usually not pareto-optimal to remove the regulation; every one of them benefits someone in some way, usually a smaller number of recipients of moderate benefit vs. a larger number of diffuse harm.)
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Most of the "insane" laws are really authors taking a general statute and conceiving of a highly-specific case that could fall under it, then presenting the law as if it covers only that highly specific case.
For example, many cities have laws about whether or not you can tie up a pet temporarily -- say, hook your dog's leash to a lamp post while you pop into your bank for a moment. But generally they're written broadly rather than specifying only a few types of "pet" animals, so then you get "ha ha this crazy law says you can't tie up a giraffe outside a bank!"
Also, the Constitution itself forbids "ex post facto" laws, which means you can't be convicted of actions that were not actually crimes at the time you did it.
This is not to say that government should be able to look at private data just because, or that people shouldn't have secrets.
But once you start envisioning people going so insane that they start rounding you up for things that you did which were perfectly fine at the time you did it, you are envisioning things which are pretty far beyond the protections of law and the Constitution anyways.
Or in other words, if things like PRISM could cause society to tear itself asunder in that way then obviously that program must die. But if society does tear itself asunder anyways, then PRISM would be the least of the peoples' worries, some theoretical U.S. secret police would be able to string you up on slights real or imagined, crimes that are completely fictitious, with or without PRISM.
There is absolutely no program that is "safe" to have in a situation that exceptional, so while I see why you would judge a program based on "Would you feel safe if the other Party had this program" (and we may very well fail the NSA's surveillance programs on this test alone), I don't see why you'd judge a program based on "Would you feel safe if the NKVD had this program".
I wouldn't feel safe if we were in any situation so exceptional that we had an NKVD at all. Despite all the complaints about the NSA, they do not have nearly all the elements of the NKVD (neighborhood informants, secret police, etc.), and it may very well be possible that through our separation of functions that NSA can do its job without inevitably bringing down the fabric of society.
> Also, the Constitution itself forbids "ex post facto" laws, which means you can't be convicted of actions that were not actually crimes at the time you did it.
California and a few other states love ignoring this, I believe there's even legislation going up for vote this week that criminalizes exactly this. Until the government is adequately constrainted by its contstituency, we will always have overreaches.
> Until the government is adequately constrainted by its contstituency, we will always have overreaches.
If there's only one lesson I wish people would take away from all this NSA drama, it's this one.
The government is in the end what people make of it, nothing more or less.
Also, the Constitution itself forbids "ex post facto" laws, which means you can't be convicted of actions that were not actually crimes at the time you did it.
Even if you can't be convicted in a court, there's still the potential for intimidation, coercion, and embarrassment due to past activities which were once acceptable but are no longer.
Well as far as I can tell the only additional concern we have in this case is that people might see your 1-900-HOTWINK phone sex calls, given that PRISM itself doesn't actually pull more data than the NSA was able to pull before.
And either way, it's already happening. Remember the sorority president who had her pissed-off email to her "sisters" leaked to the media? Which led to people discovering her Twitter account that showed her to be a racist?
You can't blame that one on the gub'mint; we're already living in that particular brave new world, if people don't want to acknowledge it that's their problem.
What I think will actually happen as far as societal change goes is that we will become used to the idea that people do grow up and mature and stop holding things against them that they said 20 years before.
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I was under the impression that federal crimes of this sort are only actionable if you are aware of the legality before it comes into your possession.
That would correlate with your statement that it isn't actually illegal, is that why? There are some crimes where it seems as though the public domain has enough knowledge that you should know better without being explicitly told so. But for something like an under-sized lobster, I think you should get a pass on not knowing.
This also presents a problem of enforcibility - will a law be enforced, and under what conditions, if it's a "silly law"? I think this is what really makes it important to have things to hide - you could be tried for what they find if they are pursuing you for other reasons.
In other words, I sure hope Edward Snowden doesn't have an under-sized lobster.
I believe child porn is the exception. Mere possession even if you didn't know it's illegal (or even unknowing possession) seems to be a crime.
(IANAL, especially not with respect to anything underage.)
I think the US has begun to completely ignore what is known as "Mens Rea" for regulations such as this. While for something like Murder you have to have intended to commit the crime, many other crimes require no intent or prior knowledge. (Manslaughter, Child Pornography, Possession of Undersized Lobster as examples)
http://lawcomic.net/guide/?p=173 (A more entertaining description)
This isn't true at all. Read model jury instructions sometime; you'll see that virtually all of them instruct the jury not to convict without first determining that there was some knowing action. The "Undersized Lobster" statute is explicit about this, but doesn't have to be; the "strict liability" crimes (like statutory rape) are the exception, not the rule.
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No that's a misunderstanding of the legal term of art "knowingly".
It is a legal maxim that ignorance of the law is no excuse. A law that has a mens rea (i.e. intent) of "knowingly" refers to some factual circumstance that is one of the elements of the crime.
An example from the New York state penal law:
"156.05 Unauthorized use of a computer. A person is guilty of unauthorized use of a computer when he or she knowingly uses, causes to be used, or accesses a computer, computer service, or computer network without authorization."
In this case the "knowingly" element is satisfied if you knew (or should have known) that you didn't not have authorization to access the computer, computer service, or computer network.
Similarly for possession statutes, the (sometimes implicit) knowingly element is satisfied if you knew you possessed the given item even if you had no idea possessing it was illegal. A situation where the knowingly element would not be satisfied, is if someone snuck the item into your luggage.
What if the lobster is under-aged?
Then you should make sure you don't have sex with it, or, if you do, don't write emails about that or talk on the phone about it.
It is also fine if you kill the lobster first.
Probably still legal in Florida though.
This fuckin' guy.
Hey, what do you want from me? It really isn't a crime to possess an undersized lobster. Don't blame me, blame the US Code.
That entire issue with the lobster is a good example of why some people excel at taking tests (and school in general) and some people don't. But sometimes the people that don't and can navigate life actually end up in a better place.
Anyone who attempts to understand minutia and not factor in common sense to everyday life will never get to live to age 100 but will quickly perish consumed with anxiety about all the things that can potentially go wrong. So maybe there are weird laws and maybe a set of circumstances came together to cause a small amount of people to get prosecuted and maybe some of them actually did jail time. Who cares?
Having been in business for quite some time there are risks that you take every day that far exceed any chance of an even valid arcane federal law causing you any trouble at all.
It's not allowed to drive w/o a front license plate in my state. But I've been doing it for 2 years now over two different cars because I don't want to mess up the front bumper with holes. I've never been stopped and if I am stopped at some point I might get a $80 ticket. And maybe there is a small chance of me having something worse happen as well (arrest or geez someone could plant something). Who cares? It's a risk worth taking to me.
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