FAIR PLAY / SUBSTANTIAL JUSTICE

are police dogs “technically officers of the law”?

Posted in Uncategorized by Ryan Locke on April 20, 2009

No.

This won’t stop actual officers of the law from trying to convince you otherwise.  Only a few weeks ago, as I was applying for my SENTRI pass at the Brownsville border crossing, a Customs and Border Patrol officer warned me to keep my dog on a leash whenever I cross the border.  “We don’t want your dog to jump out of the car and get into a fight with one of our dogs–after all, our dogs are technically officers just like me.”  I was almost certain this wasn’t true, so I asked, “Are you sure?  I don’t think dogs are officers.”  “On yes,” she said, “they even have little badges on their collars.”

Well, a police dog is no more an officer than Mudpie is a diplomat.  It’s true that the law enforcement dogs get little badges and have their own swearing-in ceremonies (Sometimes they’re even trained to bark in affirmation to the oath.  Mudpie does not have a diplomatic passport and has not been sworn in.).  And when a police dog dies, police officers are understandably upset:

“The way we feel about it, they (police dogs) are no different from an officer,” said Matt Forsyth, the department’s K-9 unit supervisor and trainer. “They’re one of our partners and another officer.”

Even though police dogs are not officers, they do receive heightened protection.  Under 18 U.S.C. section 1368(a):

Whoever willfully and maliciously harms any police animal, or attempts or conspires to do so, shall be fined under this title and imprisoned not more than 1 year. If the offense permanently disables or disfigures the animal, or causes serious bodily injury to or the death of the animal, the maximum term of imprisonment shall be 10 years.

Section 1368 is located in the “Malicious Mischief” section between “Interference with the Operation of a Satellite” and “Destruction of Veterans’ Memorials.”  Most states also have laws protecting police dogs.  Georgia’s law, at O.C.G.A. section 16-11-107(b), is:

Any person who knowingly and intentionally destroys or causes serious or debilitating physical injury to a police dog or police horse, knowing said dog to be a police dog or said horse to be a police horse, shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years, or a fine not to exceed $10,000.00, or both. This subsection shall not apply to the destruction of a police dog or police horse for humane purposes.

For some perspective on the level of punishment for harming a police dog, anyone who merely “forcibly assaults, resists, opposes, impedes, intimidates, or interferes with” a federal officer can be imprisoned for up to one year, or up to 8 years if he touched the officer or intended to commit another felony, or up to 20 years if he uses a deadly or dangrous weapon or inflicts bodily injury, 18 U.S.C. section 111.

So, shooting a dog is serious, but no more so than touching a federal officer.

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the pirate bay verdict: winning for losing

Posted in Uncategorized by Ryan Locke on April 20, 2009

The operators of The Pirate Bay, a website that enabled people to download copyrighted music, movies, and games, were found guilty of contributory copyright infringement last week by a Swedish court.  They were sentenced to a year in prison and to pay millions of dollars in restitution money.  Now that all is said and done, the dust has settled, the sky has cleared, I can be confident when I say this: The Pirate Bay has won.

First, there’s a low chance that this verdict will stand.  Sure, it’s nice to send a message to all those troublesome kids out there–download music and you could be thrown in the slammer!  But I have a feeling that the appellate court, more insulated from corporate pressure, will find this sentence unreasonable.  After all, we’re talking about only 33 songs and movies.

Second, even if The Pirate Bay has to pay the full $13 million in damages, they made money off this trial.  Since the trial, the site has ballooned to 22 million users, and thousands of them are paying the site for an anonymization service.  This is compounded by The Pirate Bay’s distributed network, meaning that they have computers spread all over the world that can pick up the slack from the disabled Swedish computers.  Kinda like the hydra, there’s no way to shut The Pirate Bay down.

Third, this verdict has galvanized anti-copyright people without bringing anything new to the table.  The trial played out along familiar lines: some people believe copyrights are too restrictive; the companies that hold them want the copyrights enforced.  Now the anti-copyrighters are joining Sweden’s Pirate Party in droves (I know, I was surprised they have a pirate party too).

Verdicts like this don’t really do anyone any good.  Look at the RIAA: suing college students and single mothers over copyright infringement was a huge PR nightmare that the RIAA eventually abandoned.  The problem isn’t with the infringers, or the programs that help them infringe, or the websites that point to the content.  The problem is that the product has been let out of the barn, and no amount of litigation will get it back in.

I predicted this a long time ago, back when Kazaa was still popular but before iTunes was invented.  Using a stick won’t work, so media companies have to go with a carrot.

Case-in-point: I remember spending hours trying to find good copies of the latest Foo Fighters CD on Kazaa.  Nothing was more irritating than spending 20 minutes downloading a track (Internet was slow back then) only to find out that it was the first 20 seconds of the song looped over and over again.  That’s what prompted me to use the iTunes music store.  Not that I was excited about paying $1 per song or that it synced with my iPod or anything like that.  The iTunes music store took way less time and effort than actually assembling a whole CD of quality tracks.

Today, media companies need to realize that their valuable commodity is no longer the actual song. Weird, isn’t it?  The actual product can no longer be controlled–so what’s left?

1.  The celebrity of major musicians

This has always been profitable.  The music of Britney Spears isn’t profitable per se, but packing 40,000 of her fans into an area sure is.  Not only that, but the Britney Spears name and image are highly valuable–why else would someone buy Britney’s perfume?  Or watch MTV’s “expose” about Britney?  Or buy a magazing with Britney’s picture on the cover?

But this is value that the media companies can’t really create.  It’s like farming–the media company can throw a bunch of seeds out there and harvest whichever ones sprout, but they can’t force the actual sprouting.  So what about all the unsprouted seeds?

2.  Tell me what music I as an individual will like based on what I listen to now.

Discovering new music is the most difficult thing ever.  Mark my words: this is the big untapped moneymaker in music.  Think of services like LastFM.  It makes a list of every song I listen to in iTunes and then will play me songs that it thinks I will like.  Pandora does the same thing, except you type in a song or artist and then it plays things similar to that song or artist.  iTunes has started getting into this with its “genius” recommendations.

This is the new valuable commody–the connections between artists and songs.  If someone could create something that would predict which bands I should listen to–and be pretty accurate–I would definitely pay for it.

Putting money into this will be a good investment for the media companies.  Suing copyright infringers–not so much.

LATER:  I just thought of this.  Websites like The Pirate Bay and the P2P networks it enables must have tons of data on the usage patterns of its users, all unconstrained by price.  It’s like someone asked the question, if you could have any music you wanted and as much of it as you wanted, what music would you take?  This is a gold mine of info–for example, if you found out that the majority of people who downloaded The Fray also downloaded Maroon 5, I bet ticket sales for their concerts would increase if you paired them together.  You could use it to decide which songs off albums become singles, or for the more sinister purpose of deciding which song the band’s new songs should sound like.

If the record companies offered immunity to websites like The Pirate Bay in exchange for this data, I wonder if they’d make more money than if they tried to sue the websites out of business.

THE NEXT DAY:  There’s a study out that says people who pirate music are TEN TIMES more likely to buy music online than people who do not pirate music.  Also, in the 15-20 years old range, half of the participants bought a CD within the last 6 months.  Tapping this market would be huge!

white house releases more torture memos

Posted in Uncategorized by Ryan Locke on April 18, 2009

I won’t write about it in-depth because I get too riled up, but the White House released more memos regarding our interrogation policy under President Bush.  You can download them from the following links: memo 1, memo 2, memo 3, memo 4.  A really great roundup of the media response can be found over at How Appealing, here.

The release of the memos is somewhat surprising, considering how hard the CIA fought to block their release.  But their release may have come at some cost:

In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.

This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.

A good response to this is here at Opinio Juris.  Essentially, OJ argues that CIA interrogators who unreasonably rely on OLC advice should be prosecuted (and that, in this case, the bar is even lower because the OLC advice was so ambivalent on the legality of the various interrogation methods–“although we cannot predict with confidence whether a court would agree with this conclusion…the question is unlikely to be subject to judicial inquiry.”)  Additionally, OJ argues that the waterboarding used by CIA interrogators was much harsher than the regime approved by the DOJ, so those interrogators would be unable to use the good faith reliance defense.

But don’t our treaty obligations mean we have to prosecute them?  Sonja Starr answers that question here.  The short answer: yes, but so what if we don’t.

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law students shouldn’t vote in the GSA election

Posted in Uncategorized by Ryan Locke on April 15, 2009

Law students are members of the UGA Graduate Student Association, even though we earn a “professional degree” and not a graduate degree.  Recently (and maybe for the first time), we’ve been courted by GSA candidates for president.  Nevertheless, we should not vote in the GSA election.

1.  Our interests do not align with other graduate students and the GSA.

Law students are a special breed.  We do not teach courses for undergrads, receive assistantships, work for research labs, seek summer fellowships, or publish articles (outside of a handful of people on law journals).  Most law students are young and umarried, and few have children.  Can the GSA really represent us when we’re so different from the other graduate students?

Note that we’re not without our own student government body: the Student Bar Association.  The SBA is sensitive to our particularized interests and provides us better services than the GSA could provide.

2.  What has the GSA done for us lately?

I didn’t even realize we were members of the GSA until today.  Doesn’t that say something?  I’ve never received an email from the GSA, seen a flier, or met one of their officers.  As far as I know, the first time someone from the GSA entered the law school was during this election.  Of course they want our votes–we’re like some gigantic untapped state, recently discovered by the politicking GSA candidates–but what has the GSA ever done for us?  What will they do for us in the future?

3.  We shouldn’t involve ourselves in graduate student affairs because we’re not part of that body.

Graduate students have legitimate interests and concerns and probably get a lot of value from the GSA.  We don’t share those same interests and get zero value from the GSA.  We shouldn’t be influencing their election when we have no stake in the outcome.  What basis will we even use to vote, especially when it’s unclear if the GSA can ever offer us any benefit?

Law students shouldn’t vote in the GSA election, especially when the candidates are only pandering to us for the purpose of winning, not because they’re championing our interests.  Thanks but no thanks, GSA.

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Bob Vander Plaats is the biggest idiot in Iowa

Posted in Uncategorized by Ryan Locke on April 13, 2009

If I were interviewing to be an attorney and said I was interested in the position because I have a deep-seated passion for riding around in a van and solving mysteries, I wouldn’t get the job.  Why?  Because lawyers don’t ride around in vans and solve mysteries; they sit at desks for 9 to 10 hours, drink heavily, and play golf on the weekends.

Bob Vander Plaats has a similar problem.  He’s a Republican candidate for governor in Iowa.  In response to the Iowa Supreme Court recently ruling that the Equal Protection Clause of the Iowa Constitution requires marriage be available to all Iowians, Platts has some fighting words:

Republican candidate for governor Bob Vander Plaats demanded Culver immediately intervene rather than wait as gay-marriage opponents work to get a constitutional amendment on the ballot. The earliest voters could see the issue would be in 2012, and that seems unlikely given opposition by Democratic leaders in the Legislature.

“I don’t want to wait two years,” said Vander Plaats. “I want this governor to issue an executive order that says there will be a stay on all same-sex marriages until the people of Iowa have the right to vote. If I were governor today, I would issue that executive order immediately.”

Plaats has one small problem: Governors can’t issue executive orders staying Supreme Court decisions.  This is one of the bedrock principles of American jurisprudence that’s been established at the federal level since 1803 (Marbury v. Madison, perhaps the most famous case ever) and in Iowa since probably soon after (I don’t feel like looking it up because it’s such a fundamental principle of law that it’s practically self-apparent.).

Plaats might want to read up on, you know, what the executive branch does–especially since he isn’t a lawyer.

Second-in-line for biggest idiot in Iowa is conservative activist Bill Salier, who was quoted as saying to voters, “Let the Supreme Court know, thanks for your opinion, it’s just that and this law is still on the books.”  I imagine he views opinions from the Iowa Supreme Court regarding Iowa’s law like he views opinions from his next-door neighbor regarding lawns–“Thanks for your opinion, Steve, but I think I can handle the crabgrass in my own yard.”

This kind of thing has always amazed me.  When baseball players step onto the field, they know the rules of baseball.  If you’re going to run for office, you should probably know the rules of our government.

57 percent or sloppy polling?

Posted in Uncategorized by Ryan Locke on April 6, 2009

Politico reported today that 57 percent of poll respondents support a military response to eliminate North Korea’s nuclear capabilities.  Does this really reflect what Americans think?

Probably not.  Look at the actual Rasmussen poll here.  This is the actual question:

3* If North Korea launches a long-range missile, should the United States take military action to eliminate North Korea’s ability to launch missiles?

57% Yes
15% No
28% Not sure

First, does North Korea really have a long-range missile capability?  The Wall Street Journal says no:

The three-stage rocket failed during its second stage and plunged into the Pacific Ocean about 1,300 kilometers east of Japan, according to analysts in the U.S., Japan and South Korea. On Monday, Russia, a country more friendly to North Korea than the other three, also announced that the missile appeared to fail before reaching its third stage, according to news reports.

However, this poll was conducted two days before the rocket failed.  Back then, it was kinda scary that North Korea was about to launch a missile; now, we realize that they can’t launch a long-range missle.  Would this poll question come up differently if it was polled two days after the rocket failed?  Maybe.

Second, here’s the question that immediately preceded the military action question:

2* How concerned are you about the possible threat of North Korea using nuclear weapons against the United States?

39% Very concerned
34% Somewhat concerned
20% Not very concerned
5% Not at all concerned
2% Not sure

Right after answering a question about North Korea using a nuke against the US (which experts believe could only happen via airplane, not missile), the respondents answered a question about North Korea’s missile capability.  This is called “priming” — where an early stimulus influences response to a later stimulus.  The Pew Research Center explains this phenomenon in their FAQ, explaining why they ask presidential approval first in their surveys:

For example, if the survey first asks about the economy and then asks about presidential approval, the respondent may still be thinking about the economy when answering the latter question. While economic conditions may be important in assessing the president’s overall performance, so are many other issues. If the respondent is only thinking about the economy because we brought up the issue, his or her response about the president may be biased by what we call a context effect: in this case we would be priming the respondent to consider the economy in an assessment of the President.

This poll isn’t an accurate reflection of what Americans think–or if it actually is, we can’t be sure because of sloppy polling methodology.

surprise surprise, torture doesn’t work

Posted in Uncategorized by Ryan Locke on April 6, 2009

A few days ago, The Washington Post broke this story:

When CIA officials subjected their first high-value captive, Abu Zubaida, to waterboarding and other harsh interrogation methods, they were convinced that they had in their custody an al-Qaeda leader who knew details of operations yet to be unleashed, and they were facing increasing pressure from the White House to get those secrets out of him.

The methods succeeded in breaking him, and the stories he told of al-Qaeda terrorism plots sent CIA officers around the globe chasing leads.

In the end, though, not a single significant plot was foiled as a result of Abu Zubaida’s tortured confessions, according to former senior government officials who closely followed the interrogations. Nearly all of the leads attained through the harsh measures quickly evaporated, while most of the useful information from Abu Zubaida — chiefly names of al-Qaeda members and associates — was obtained before waterboarding was introduced, they said.

Here’s a Washington Post blog entry that puts the final nail in the coffin:

All the calculations the Bush White House claims to have made in its decision to abandon long-held moral and legal strictures against abusive interrogation turn out to have been profoundly flawed, not just on a moral basis but on a coldly practical one as well.

Indeed, the Post article raises the even further disquieting possibility that intentional cruelty was part of the White House’s motive.

The most charitable interpretation at this point of the decision to torture is that it was a well-intentioned overreaction of people under enormous stress whose only interest was in protecting the people of the United States. But there’s always been one big problem with that theory: While torture works on TV, knowledgeable intelligence professionals and trained interrogators know that in the real world, it’s actually ineffective and even counterproductive. The only thing it’s really good as it getting false confessions.

So why do it? Some social psychologists (see, for instance, Kevin M. Carlsmith on NiemanWatchdog.org) have speculated that the real motivation for torture is retribution.

And now someone with first-hand knowledge is suggesting that was a factor in Zubaida’s case.

Quoting a “former Justice Department official closely involved in the early investigation of Abu Zubaida,” Finn and Warwick write that the pressure on CIA interrogators “from upper levels of the government was ‘tremendous,’ driven in part by the routine of daily meetings in which policymakers would press for updates…

“‘They couldn’t stand the idea that there wasn’t anything new,’ the official said. ‘They’d say, “You aren’t working hard enough.” There was both a disbelief in what he was saying and also a desire for retribution — a feeling that ‘He’s going to talk, and if he doesn’t talk, we’ll do whatever.'”‘

To review: in 24, torture is a good idea and works all the time.  In real life, torture is a bad idea and doesn’t work at all.

are you a lawyer? probably not.

Posted in Uncategorized by Ryan Locke on March 21, 2009

Vodpod videos no longer available.

grab bag

Posted in Uncategorized by Ryan Locke on March 7, 2009

A few quick things.

(1)  Wheels up! This week, Lori and I are traveling to Matamoros, Mexico.  Once there, Lori will start working and I’ll do various spring break-ish things (for a law student, this means mostly reading, writing, and outlining punctuated with random fun things).  Maybe we’ll cook out!  Maybe we’ll visit Playa Bagdad!  Maybe we’ll go to the Wal-Mart, either on the Mexico OR the US side!  Maybe I’ll make embarassing mistakes speaking Spanish!  So many spring break options!

Anyway, we’ll post pictures and stuff when we get a chance.

(2) Bernie Madoff and the CVRA. Looks like Bernie Madoff will be making a plea agreement.  See this article from the New York Law Journal.  Not surprisingly, Madoff’s victims do not like this.  See this victim-centered article at ABC News.  Why does what the victims think matter?  Because they have rights under the Crime Victims Rights Act, 18 USC 3771.

I’ll blog more in-depth about this as it develops, but when Madoff pleads guilty things are going to get messy.  If you’re interested, read In Re: Stewart, 552 F.3d 1285, about 112 homeowners who were defrauded into paying extra brokers fees on their mortgages (or something along those lines).  The petition stated that “while [the defendant] was enjoying the high life on his ill-gotten gains, the borrowers were all paying interest on the money financing it.”  Sound familiar?

The Eleventh Circuit held that “under the plain language of the [CVRA], a party may qualify as a victim, even though [he] may not have been the target of the crime, as long as [he] suffers harm as a result of the crime’s commission.”  This means that anyone harmed by a financial crime is entitled to confer with the prosecution about the charges and its plea agreements, to obtain restitution damages, and to make a statement at the sentencing hearing.  The prosecution doesn’t have to get the approval of the crime victims — in other words, the victims aren’t made into bosses of the prosecution — but the prosecution does have to confer with the victims and let them speak at the sentencing hearing.  Keep in mind there are thousands of victims of Madoff’s Ponzi scheme and they’re all pissed.

Madoff’s investors are not happy to hear the he may cut a deal. 92-year old Zsa Zsa Gabor is one of them. Her husband Prince Frederick Von Anhalt said the couple lost their $10 million life savings to Madoff.

“It’s not enough” for Madoff to just plead guilty and go to jail, Von Anhalt told ABC News. “That’s what he wants, he wants to go to jail, his life is over. He wants to protect his family, his wife, his children.” Von Anhalt also wants to see Madoff’s wife, Ruth, and his sons arrested and put in jail. “What nerve she has, to say that she wants to keep all that money. That’s our money! Screw her!”

(3) US citizen beheaded in Tijuana. The LA Times has the story here.  The guy who was beheaded, dismembered and mutilated was, to put it politely, a scumbag — but still, he was an American scumbag.

Harrison had several drug-related convictions in the United States and was suspected of drug trafficking in Mexico, Baja California Assistant Atty. General Rafael Gonzalez said.

Gonzalez said Harrison had been living in the Tijuana area since his release from a U.S. prison six months ago. He owned a pizzeria in Tijuana, from which he was abducted, Gonzalez said.

Authorities who searched Harrison’s business found four weapons, including a .38-caliber handgun.

(4) Guess what vocab word will now be mandatory at FSI. I’m sure everyone’s read about the red button incident between Secretary Clinton and Russia’s Foreign Minister, Sergey Lavrov.

Secretary of State Hillary Rodham Clinton, in greeting Sergey V. Lavrov, the Russian foreign minister, presented him with a red plastic button emblazoned with the English word “reset” and the Russian word “peregruzka.”

The gift was a play on Vice President Joseph R. Biden Jr.’s call in Munich last month for the two countries to “press the reset button” on their relationship.

“We worked hard to get the right Russian word,” Mrs. Clinton said, handing the button to Mr. Lavrov. “Do you think we got it?”

“You got it wrong,” he replied, explaining that the Americans had come up with the Russian word for overcharged.

Awkward!

Mr. Lavrov said he hoped the linguistic miscue would “contribute to the advancement of Russian in the United States and English in Russia.”

Is there any advancement of Russian in the US?  I’m not sure I even know anyone who’s studied Russian, let alone speaks it.  I think I’ve heard more spoken Russian playing Call of Duty on my Playstation than in real life.  The fact is, foreign languages aren’t a big priority in US education. Many American speak Spanish, sure, but it’s because they either live in a border state and actually use it or studied abroad in Valencia and want to rub it in your face.  What hope does Russian have?  I mean, Russian has a freaky different alphabet and its country is super-cold.  What’s my motivation to learn it?

Having exhausted electrical metaphors, Mr. Lavrov then remarked that it was fortunate the United States and Russia were pushing a reset button instead of another red button that would start a war.

I know Staples uses a red button in its commercials, but couldn’t someone have foreseen that a red button might be the wrong symbol to use?  Don’t they sell buttons in other colors?  Like, a button with an eagle on it or something?

State Department officials professed not to know who was responsible for the error. But Mrs. Clinton was accompanied by several diplomats and White House officials who had lived in Russia and speak Russian — any of whom conceivably could have caught it.

Key word: conceivably.  The question is not how many diplomats and White House officials saw that button, it’s how many foreign nationals saw that button.  To an FSO, Russian is hard.  To Vlad in the consular bullpen, Russian is easy because he speaks it.  No one thought to ask him?

It’s not like this little mistake portends something awful — Obama and Clinton are running our diplomacy into the ground!  Buy jugs of water and shotguns for the coming apocolypse!  The more likley explanation is that this was a rushed last-minute idea and everyone at the US Mission to the European Office of the UN was too busy with more important matters, like the Secretary of State visiting, to worry about a silly button.

(My hope is that this will become a contest — who can design the most ironically appropriate diplomatic gift?  Like, presenting the Prime Minister of Canada with US-made imitation maple syrup or the President of China an iPod or the Prime Minister of Japan a gigantic fighting robot that can fly through space and combine with other fighting robots to make one super-gigantic fighting mega-robot.  Awkward!)

published!

Posted in Uncategorized by Ryan Locke on March 5, 2009

I’m excited to announce that my article–“Resetting the Doomsday Clock: Is it constitutional for laches to bar copyright infringement claims within the statute of limitations?”–will be published in the Spring 2009 volume of the Buffalo Intellectual Property Law Journal.

Early reviews say the plot and characters are good, but the action sequences really make the article stand out. It’s a thrilling read from beginning to end, perfect for a long plane ride or to read while commuting.  Pick up your copy today!