Comment by moxie
13 years ago
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.
> In that world, it seems pretty clear who ends up in jail and who doesn't.
Very true. :(
It's such a difficult problem in general though. In the Navy we have a term "sea lawyers" for those who try to finangle the regulations for their own personal gain.
If there was an easy way to fairly resolve each possible scenario we'd have baked it into the laws already. But even where complex solutions are standardized, that depends on the person evaluating the standard; when I was teaching my discipline method for a given failure-to-study would have been way different from a Chief Petty Officer's.
I think the only way it could possibly work in the future you point out is that, given the data exists, that the ones doing the monitoring (if any) are not able to be the ones doing the deciding.
We say "don't combine the data in the first place" but I just don't see that as a realistic possibility. Someone will have that data, and they can "leak" it to the cops just as well as the NSA could.
I think if we own up to the idea that such a data-driven world is not only possible but likely, that next we need to accept that it will happen and develop countermeasures to maintain our civil liberties.
That doesn't have to be directed against NSA alone. The FBI can legally perform domestic surveillance already (with oversight), and I've already mentioned that people at $ISP or $CLOUD_CO can leak damaging information to the cops and kick off an investigation (and such information would be admissible in court, unlike NSA methods).
Maybe adopting FBI's oversight methods for NSA and similar is enough. Certainly I think we're long past due for defining and enforcing privacy protections on-line to match what we expect in the mail and on the phone. Perhaps those protections can also protect a person in the case that a company illegally provides data about someone to the government as well. But then now we're almost back to talking about CISPA again. :)
But I think just pushing for "don't get the data" is a brittle solution at best. That only really works if you're scared of the government alone. I'm concerned about the government, but they're not at the top of my list by any means of parties that could possibly harm me.
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.)
That's true. And usually they're so old that even the lawyers, legislators and judges don't know they exist.
If the Federal government could do nothing else I wish they'd change the budgeting to be something that doesn't essentially mandate spending the whole rest of a discretionary budget on stupid and only possibly-useful kit at the end of an FY to keep that line of accounting from being slashed for the next FY.
I get that the budget is so large that ZBB is probably off the table, but there has to be something we can do to incentivize thriftiness where thriftiness is an option without penalizing that agency in the out years.
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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!"