Non-Citizens Voting
Professor Volokh on voting by aliens:

I would probably be somewhat more opposed than my friend to letting noncitizens vote in state and federal elections, especially since in many jurisdictions noncitizens are a huge group, and I do think that swearing allegiance to your new nation is an important step in making people feel like they have a long-term stake in the nation's health. But it is important to realize that the proposals to allow noncitizen voting are not some departures from an unbroken American tradition.

For obvious reasons, we are at a peak in anti-alien feelings.

In fact immigration itself was unrestricted throughout much of our history. Immigration controls were non existent for the first 100 years of the Republic, reflecting the pro immigration stance of the Founders. Note that immigration is not mentioned in the Constitution. There is only a reference to naturalization and the requirement that the President be native born. Arguably, Congress lacks the power to restrict immigration since they are not given that power in the Constitution. It could be argued that immigration control is part of the inherent "police power" that all governments possess but that then leads to the question of whether or not the Feds have "police power" (outside of the Federal District) or if that is the sole province of the States.

Both advocates and opponents of immigration should keep in mind that two of the leading documents in the history of liberty include immigration among the rights that governments should respect:

The Magna Carta

[30] All Merchants (if they were not openly prohibited before) shall have their safe and sure Conduct to depart out of England, to come into England, to tarry in, and go through England, as well by Land as by Water, to buy and sell without any manner of evil Tolts, by the old and rightful Customs, except in Time of War.

The Declaration of Independence

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

War & Liberty

Libertarians should know what libertarian theory actually has to say about War -- but they don't. Here are some "Believe it or Nots" from libertarian war theory.

1) War is permitted.
2) Military forces are permitted.
3) Government Armies in peacetime are less of a problem for libertarians than government teachers or social workers anytime.
4) Both the Income and Social Security tax systems under which Americans now suffer, were introduced in peacetime and collectively have caused far more loss of liberty for Americans than all our wars combined.
5) Libertarian principles permit one to "invade" another country and kill its government practically at will.
6) Almost all of the growth of the spending, taxation, and power of OECD governments over the last 50 years can be blamed on non-military spending and non-security-related regulation.

Mayor Bloomberg -- Second Hand Smoke Kills

New York City Department of Health & Mental Hygiene (DOHMH) - Testimony before the New York City Council Health Committee on Int. No. 256 -- In Relation to the Prohibition of Smoking in Public Places and Places of Employment (October 10, 2002)
On assuming office, at my direction, Dr. Frieden examined the conditions that were making New Yorkers sick. He found that tobacco use was the number one cause of preventable death in New York City, killing more people than TB, AIDS, homicide, suicide and alcohol combined. Today, we have the results; now we must act

How can we tell that NYC's mayor and Health Commissioner doesn't believe this. Easy. If they did, they would seize the children of all NYC smokers to protect them from death. But they don't. So second hand smoke must not be very dangerous.

Letter from Prof to AF Academy Cadet -- via Instapundit
Apparently genuine:

From: Peter Kirstein
Sent: Thursday, October 31, 2002 1:46 PM
To: Kurpiel Robert C4C CS26

Subject: Re: Academy Assembly

You are a disgrace to this country and I am furious you would even think I would support you and your aggressive baby killing tactics of collateral damage. Help you recruit. Who, top guns to reign death and destruction upon nonwhite peoples throughout the world? Are you serious sir? Resign your commission and serve your country with honour.

No war, no air force cowards who bomb countries with AAA, without possibility of retaliation. You are worse than the snipers. You are imperialists who are turning the whole damn world against us. September 11 can be blamed in part for what you and your cohorts have done to Palestinians, the VC, the Serbs, a retreating army at Basra.

You are unworthy of my support.

Peter N. Kirstein
Professor of History
Saint Xavier University.

Notes to the author... That would be "rain (not reign) death and destruction" and no aircraft deploy AAA, that is, Anti-Aircraft Artillery.

'Terror inspector' plan: 10 in each county

A confidential draft proposal to enlist municipal code inspectors in the fight against terrorism would train 10 volunteers from each county - a total of 210 statewide - to spot bomb-making materials and the components of chemical and biological weapons.

Fabulous idea! Provides just the legal basis residents require to resist warrantless regulatory searches of their private dwellings. Regulatory searches of dwellings without probable cause has been the wet dream of local governments for a while. They run into problems because of the remaining protections of private dwellings under the 4th Amendment. Private residences don't usually satisfy the exceptions to the 4th that the courts have used to allow other sorts of regulatory searches.

These factors are such things as limited discretion, lesser intrusion, implied consent, highly regulated industry, lessened expectation of privacy, etc. Things which don't usually apply to private homes.

When you convert a limited regulatory search into a more general law enforcement search, you make it even more likely that occupants can resist a search that is no longer purely regulatory. Good news.

Hawaii Election Results
So Hawaii has a lesbian (and hence female), libertarian, Republican governor. Shocking. Who'd have thought that a Republican could win. Where do you suppose Bill Quinn is these days?

Unmarked Spanish Graves Tell Tale of Franco Regime

Oct. 31, 2002
During the 36 years that Gen. Francisco Franco ruled Spain, tens of thousands of his political opponents went missing and are now believed to have been executed. Their descendants are still searching for the bodies in mass graves. Claire Marshall reports...

The story tells of a project to dig up the bodies of those executed by Franco. Unanswered is the question of what the diggers are going to do with the bodies of those executed by the anarchists, communists, and wishy-washy social democrats. Or didn't those worthies get around to executing anyone?

Postal Service Porn

Can it be true that the USPS is selling "adult" material on its website? At least Showtime-grade adult material. Has anyone told the Concerned Women of America?

How to be an illegal alien in the US without having violated the law to achieve that status.

There are at least two ways that I can think of to achieve official "Illegal Alien" status without having broken any law. [There may be more.]

1. You are three years old and your parents carry you into the US without having secured appropriate permissions to do so. You grow up in the US but you are an illegal alien. Since you performed no legally cognizable act to enter the US, you are guilty of no crime. See, for example...

2. You enter the US on a valid tourist visa with the firm intent of enjoying a two-week vacation here. After arriving in the US, you decide to make this country your home and you overstay your visa. You entered legally and only later (as soon as you changed your mind) did your stay become "illegal" -- but no law was broken.

In both cases, you would be subject to a civil action of deportation but no criminal charges would be sustained.

BTW, almost all Federal actions against illegal immigrants are Civil rather than Criminal.

Did you know that it may well be legitimate to discriminate against gay, lesbian, bisexual, and transgendered persons -- no matter what your ethical beliefs?

Why?

Because this is a serial list and not a single item. And it's a serial list which has expanded over time. It started with gays and grew from there. Some users add additional items such as "questioning" or "sexual minorities" to the list. No authority has promised that the list is fixed and will not grow in the future.

What would happen if some deviate added celibates to the list at some future date. Anti-celibates who had promised not to discriminate against list members would be stuck.

So -- until the list stabilizes -- take care!

Money stream to 104 suspect child porn websites cut off.

Attorney General Jennifer M. Granholm today announced that as a result of a cease and desist order her office issued on August 26, 2002 to certain Internet billing companies, 104 suspected child pornography websites are no longer able to accept credit card charges through such companies to peddle their wares. As a result of this action, which is the first of its kind in the nation, the access to these websites is essentially cut off for residents of the United States.

What to say if you get one of these cease and desist orders.

Gee, I'd love to help but I have no way of knowing if those sites contain any kiddie porn. I can't even look at them because if they did contain any kiddie porn to look at them would be to commit a Federal felony. So I have no way of determining if your opinion of their contents is valid.

Even if I could look at the sites I wouldn't have any way of telling if the sites contained photos of real persons under the age of 18 rather than animated or morphed images. I lack that technical capability.

Additionally, when did an Attorney General become a judge. You have no more power to "order" anything than I do. You can order your employees but I'm not one of those. A "demand letter" is not a "cease-and-desist order". You lack that power.

Business as Usual

In which the famous Paul Krugman relates the horrors to follow the coming Republican election victory [Registration Required].

The mood among business lobbyists, according to a jubilant official at the Heritage Foundation, is one of "optimism, bordering on giddiness." They expect the elections on Nov. 5 to put Republicans in control of all three branches of government, and have their wish lists ready. "It's the domestic equivalent of planning for postwar Iraq," says the official.

The White House also apparently expects Christmas in November ...

...The first big step in undermining reform came when Harvey Pitt, chairman of the S.E.C., backtracked on plans to appoint a strong and independent figure to head a new accounting oversight board.

...The S.E.C. has been underfunded for years ... now the administration wants to cancel most of the "new funding" Mr. Bush boasted about....

...So what's going on? Here's a parallel. Since 1995 Congress has systematically forced the Internal Revenue Service to shrink its operations; the number of auditors has fallen by 28 percent....

...The Bush administration contains more former C.E.O.'s than any previous administration, but as James Surowiecki put it in The New Yorker, "Almost none of the C.E.O.'s on the Bush team headed competitive, entrepreneurial businesses." Instead they come out of a world of "crony capitalism, in which whom you know is more important than what you do and how you do it." Why would they turn their backs on that world?...

...Senator Phil Gramm, who pushed through legislation that exempted Enron's trading practices from regulation while his wife sat on the company's board, is retiring and taking a new job: he's going to UBS Warburg, the company that bought Enron's trading operation. Somehow, crusaders against business abuse don't get similar offers....

So, if the rascally Republicans win, they will cut government spending and reduce (or at least not increase) some of the burden of government regulation. Terrible! Would that it were so. I fear that the opposite would be true.

And does Krugman really think that if the admin was full of CEOs from entrepreneurial industries they would be more likely to support tighter regulation? Krugman hasn't met too many entrepreneurial types.

Pacifist-Aggressive Behavior

Pacifism is not my view of the world, but at least those who practice nonviolence in their own lives are just taking their own lives into their own hands. If they tell me (as some friends of mine have) that they don't think they could pull the trigger to kill someone who's trying to rape or even kill them, that's their choice. But the proposal on the list isn't just pacifism: This is an attempt to force nonviolence on others, by threatening to imprison them for exercising what I see as one of their most fundamental rights. Let's call it the pacifist-aggressive approach. I don't like it.

All too true -- and not just is the opposition to self defense. There are hoards of people who claim to be pacifists -- the Catholic Social Action types come to mind -- but who advocate loads of government action to raise taxes and control the minutia of human life. A true pacifist can't support the existence of any taxes or any government regulation since those practices work only via the application of loads of deadly force. They could support a "voluntary community" who's rules and dues were enforced only by the threat of disfellowship. But most go a lot farther than that. So they aren't actually pacifists at all.

MORE SPEECH RESTRICTIONS ON CAMPUS:

[From last Thursday's column:] [Maxim] magazine, which specializes in photos of scantily clad celebrities, touched off a controversy at UNLV's Boyd School of Law recently, when first-year student Clarke Walton was spotted reading it on his laptop computer during a class break. Two fellow students, both women, complained to their professor, Jean Whitney, that they were offended and distracted by the image. . . .

I'm surprised that no one has tried the defense I thought of a few years ago when the "Reading Playboy at a Berkeley Coffee Shop" case hit.

"I'm protected by the restrictions on discrimination on campus/in Berkeley on the basis of sexual or affectional preference. Looking at pictures of naked/scantily clad women happens to be my sexual preference. I have to put up with Sodomy on campus and you have to put up with visual depictions of erotica on campus. Too bad. They should have thought of that when they banned discrimination on that basis."

USATODAY.com - Economic woes just aren't giving Democrats an edge

But with less than three weeks to go before Election Day, Democrats haven't seen signs of the rebound they expected for their congressional candidates from voters anxious about their jobs or dismayed by their sinking 401(k) investments. Instead, Republican leaders are increasingly confident that the GOP will defy history, maintaining control of the House of Representatives and limiting any losses in the Senate.

One problem. The economy hasn't been in recession (defined as 2 consective quarters of declining economic activity) yet.

US official clashes with lawmakers on offshore tax havens

"The American people pay their taxes. People who work on Main Street, run businesses on Main Street, pay their taxes. And frankly, it disgusts me to see corporations decide in their board room that they'd like to renounce their US citizenship so they can avoid paying taxes. My feeling is that if they would like to be citizens of Bermuda, perhaps they ought to rely on the Bermuda navy to protect their assets."

Actually Bermuda and Bermudians whether Natural or Legal, are protected by two navies (US & Royal) so they are even better off than we are. [Though I guess NATO means we are all protected by the entire naval assets of the Alliance.] Osama's navy beware!

Yahoo! News - TAXES RULE UPCOMING ELECTIONS IN TENNESSEE

At the heart of the state's budget structure is one stubborn fact: Tennessee is one of nine states that doesn't have an income tax,

Though there's a legislative special session scheduled for November which may enact one.

Can you name the states without a "general tax on wage income"?

Alaska
Florida
Nevada
New Hampshire
South Dakota
Tennessee
Texas

Since Antonin Scalia has written such a strong defense of the right of revolution; does this mean that terrorists or those charged with sedition can quote his article to argue that since revolution is not as immoral as judicial activism (not yet even a crime!) they should get off?

...the choice for the judge who believes the death penalty to be immoral is resignation, ... Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty—and if that fails, lead a revolution. But rewrite the laws he cannot do.

Search & Seizure

This sets the stage for what prompted this post: an otherwise interesting post by Am So A Pundit that describes how the police visited ASAP's apartment -- which is in the area of the recent sniper shootings -- to ask him if he was walking around with a gun. The post argues that "The Constitution doesn't say I only have my rights when everything's going swimmingly," and closes with "I don't think that, because I may fit [a] very vague profile [of a potential shooter], I should be subject to searches, seizures, stops, or other kinds of questioning."

Well, it turns out that the Constitution also doesn't constrain all "searches, seizures, stops, or other kinds of questioning." The Fourth Amendment itself bars only "unreasonable searches and seizures"; and while that has been interpreted as generally requiring at least articulable, individualized suspicion for most law enforcement searches and seizures, it has not been interpreted as covering questioning.

It is always important to point out however that one is not required to answer the door when cops knock on it or talk to them when they ask you questions in the street or on buses or trains. And the Supremes have held that they can't even stop you in the street without an articulable, individualized suspicion and if stopped, you don't have to say a word to them. In the interstate bus drug search cases, the Supremes have also constantly lectured the defendants that they were perfectly free to not answer questions and not submit to the pat downs and baggage searches that the cops sought. These facts have to be emphasized because most people don't know them.

In fact, the cops can arrest you and you can be tried, convicted, and executed without ever being required to open your mouth. They can kill you but can't make you talk! You can be required to testify in court (but not out of it) but only if you've been granted immunity for your testimony and you never have to talk to cops under any circumstances.

A Note for Your Oppressor

[All-purpose note to give to people who are currently oppressing you or helping the government oppress you. To be used to counter government oppression rather than private conflicts.]

CONGRATULATIONS!

Fate has handed you a rare opportunity to increase your understanding of human behavior.

Have you ever wondered why Americans oppressed other people in the past?

Have you wondered why Americans imprisoned 110,000 Japanese-Americans during WWII?

Have you wondered why Americans turned away the hundreds of Jews on the ocean liner Saint Louis sending them back to Europe to die?

Have you wondered why Americans forced the Cherokee off their land in Georgia and sent them first to Alabama, then to Oklahoma and finally onto a reservation killing 90% of them in the process?

Sometimes, it's hard to put ourselves in the place of those who did these things. We tell ourselves that we would never have done it. We can't comprehend why they did.

But it's actually quite easy to understand why people much like ourselves oppressed others.

People oppress other people because they think that the oppression is right. Their government and community tells them it's right. Even if they are unsure, they go along to avoid risking their livelihoods, the opinions of their neighbors, or even the punishment of the government.

It's only later when attitudes change that we can say that what was done in the past was wrong. Then we can go along with the crowd and condemn actions which we may have supported in the past.

The real trick is to figure out what we may be doing now that is oppressive.

The real trick is to stop our current oppressive actions even though we risk our livelihoods, the opinions of our neighbors, or even the punishment of the government.

If we don't stop our own oppressive acts, will we be no better than those oppressors of the past.

I would like you to consider the possibility that you may be oppressing me by...

[Fill in here a statement outlining the oppressive actions of the person you are giving the note to. Include three points. 1) What the specific
oppression is. 2) What the real motives of the government are. 3) What the person could do to both stop oppressing you and guard their own interests at the same time.]

Do you want to increase your net worth, improve your health, extend your life, and reduce the risk that you will commit (or become a victim of) a crime -- all without spending any time or money?

It's easy but there's only one downside -- the technique only works if you are a member of or a voter for the Democrat Party. (It may work if you are a Green or an affiliate of one of the other minor Parties of the Left -- but I can't guarantee anything.)

If you do qualify, you can magically change your statistical risk profile by the simple step of changing your affiliation to the Republican of the Libertarian Parties.

Those who vote Republican or Libertarian are richer, healthier, and longer lived (on average) than Democrats so you can be too simply by joining them. See how cheap and easy it can be.

Law Panel on Civil Liberties in Wartime

When it was his turn, Prof. Volokh spent part of his time addressing what I believe is a very strong and often overlooked point. Much of what was being complained about was not racial profiling, but citizenship status profiling, which is totally different.

Though the recent arrests in Buffalo and Oregon were of citizens and the perps came to the attention of the authorities because of their religious clothing and grooming (in the Oregon case) and because of their ethnicity (in the Buffalo case).

Later on, Prof. Armour raised the often used spectre of the Japanese internees during World War II, and used this as an example of the inherent racism and willingness to trade away due process rights for minorities in American society. This gave rise to my second question, which he also went unasked by the moderator, where I wanted him to address how the approximately 13,000 (46% of the slightly over 32,000 total internees) internees of Italian and German citizenship fit into his "racism" argument as opposed to Prof. Volokh's "citizenship profiling." I was also curious as to how he could legitimately claim that all were innocent when in fact about 5,000 people who held dual Japanese and American citizenships chose to willingly renounce their American citizenship, and only then were interred as citizens of an enemy state (without these voluntary internees, there would have been more Europeans interned than Asians). Somehow I doubt that Prof. Armour would have had a good answer as to why that was still racism as opposed to "citizenship profiling." (For more on these European internees, read Undue Process by Arnold Krammer.)

I miss your point on The Relocation of the Japanese vs. the Internment of Enemy Aliens. Of the 110K "relocated" persons of Japanese Ancestry, 70K were citizens. Even though they weren't interned as Enemy Aliens they were interned for 2-3 years while they waited for the Supremes to decide that they could be legally relocated but not interned once relocated. A subtle difference but just as much time in stir.

The US Army's new AmericasArmy.com website [which promotes its first person shooter recruitment game] features an Afghanistan weblog "Written by a member of the America's Army game development staff". I wonder what his MOS is. Unfortunately, the webmaster has neglected to hide the directories.

The Benefits of a 7 Day Waiting Period:

Live from Montomergy County

I'll be blogging here-n-there but with an occasional chopper overhead and such, I've got to keep one eye out for the bad guys. I know its overkill, but I've got the truck blocking the back door, and the Honda the front. The shooting locations making a perfect square about my house. Tomorrow I apply for a firearms permit and then wait the 7 days.

Fun With Genealogy

For a while, the State of Texas Department of Health had put its Birth Indices for 1926-1995 and its Death Indices for 1964-1999 on the nets. Because of fears that adoptees could use the indices to find their birth parents and that identity borrowers might use the indices to find names to borrow, they recently removed them.

But not to fear. The state had sold CDs of the indices for a while and my faith in the Market was vindicated when I went to Ebay and typed in the search term "Texas Birth Indexes". Soon I had my own copies and was ready to start selling them myself.

Look North to the future. Today US financial institutions are being told to block payments to gambling and "kiddie porn" sites. Tomorrow the churches?

Note to Royal Bank: Today's gay rights precede tomorrow's Enrons--count on it

The City of Montreal decided to make a bid for the so-called "Gay Games" in 2006, an event believed to be worth some $500 million in visitor dollars. Led by Reverend David Cormier, an evangelical pastor, several Christian and pro-family groups set up a "No Committee" to oppose this move, and routinely applied to the Royal Bank to open an account. They were refused because their purpose, so they were told, was in violation of human-rights law. As one bank official put it, "They're trying to prohibit gay people from coming into Montreal."

Gun Law Turning Law Abiding Citizens Into Felons; State Agency Failed to Inform Millions of Rights

When MassNews asked Wallace [Legislative Agent of the Gun Owners Action League] whether these people actually can be arrested even if they don't carry guns, he said, "There is no registration law in the state, but you cannot be in possession of a firearm or ammunition without a license. Even an empty shell casing in your house could get you two years in jail."

If true, that suggests a safe mechanism of attack. Hide or dump a bunch of .22 cartridges in the houses or offices or on the property of anyone you don't like in Massachusetts (perhaps anti-gun legislators) and drop a dime on them.

Note that if you are not a resident of Massachusetts and are passing through on an interstate trip the Firearm Owners Protection Act says you can carry guns and ammo so you can legally reach the targeted property and dump -- facing only an illegal dumping charge. Of course ammo is probably hazardous waste.

Seems stupid to pass a law that can be used so easily against someone else.

Professor Eugene Volokh on the ACLU and war censorship:
"CENSORSHIP IN TIMES OF CRISIS"

"CENSORSHIP IN TIMES OF CRISIS": I just got an ACLU e-newsletter titled "War on Words: Censorship in Times of Crisis". Now it says a lot about government searches, military tribunals, and various other things, but nearly nothing about actual censorship -- governmental restrictions on what people can say or write. (The only exception is a brief discussion of a Patriot Act provision that on its face seems to bar anyone, including people outside law enforcement, from revealing the existence of a Foreign Intelligence Surveillance Act wiretap.)

"The First Amendment violations now taking place are more subtle than in decades past and have not been widely reported in the press," the item warns. They are subtle indeed -- too subtle for me . . . .

Generally correct. The FISA wiretap gag rule is meaningless in any case given the ease of anonymous publishing in this era.

A better source than the ACLU though is the Electronic Frontier Foundation (EFF) page (Chilling Effects of Anti-Terrorism) that tracks this sort of thing.

Going down their list, we see a few items --

FBI threats to websites to pull the Pearl Beheading Video under obscenity laws (even though it wasn't obscene since there was no sex or excretion). That failed and the video was restored but it was an official attempt.

Government pulling the plug on its own websites. I don't know if that's exactly censorship because I would like them to pull all their websites (and most other activities) as well. Doesn't bother me.

US shutdown of Somalia's only ISP. Presumably not done for content but because it was financially linked to terrorist organizations. Not as much censorship as was the US bombing of Serbian TV stations during that war (which was presumably content based in part).

There are two cases which suggest federal censorship at least in part - the cases of RaiseTheFist.com and StopAmerica.org.

Probably the most straightforward case of censorship is that of 19-year-old Sherman Austin of RaiseTheFist.com [connection irregular because of legal action and overload]. See a fair summary from the Carnegie Mellon student paper. Carnegie Mellon Computer Science Professor David Touretzky has a page of links on the case.

Raisethefist.com is a website urging various sorts of left-wing street action and included a guide to the manufacture and use of various weapons. Austin's house was raided in January and he was arrested a few months ago and charged with violating US Code title 18, section 842(p), which prohibits the demonstration of how to make or use explosives and weapons of mass destruction with the intention that the information will be used for violent crimes. He was also charged with possession of something explosive that violated the National Firearms Act (something that was arguably a Molotov Cocktail). We know his "crimes" weren't serious because the Feds offered him one month in stir and three years probation if he'd plead to one count of violating 842. A week ago he accepted the plea bargain. The explosive device he was accused of teaching how to make was a Molotov Cocktail. The Feds were clearly trying to obtain an 842 conviction because that statute is probably constitutionally limited to actual training in the manufacture and use of illegal devices in a context that would really constitute being an accessory to the underlying crime in any case. Arms length teaching of weapons and explosives is probably legal. Of course one who pleads guilty gives up the chance to challenge the application of the law. In any case, Austin's no doubt seminal contribution to the theory and practice of street combat is still available from several sources including the government's own proposed plea agreement!

Those of us with longer memories will recall when New York Magazine or Esquire or some such glossy mag published a cover illustration of how to make a Molotov Cocktail. It was the 60s/70s. You had to be there.

Another case not mentioned by the EFF is that of the webmaster of StopAmerica.org a Black Muslim who was originally held as a material witness and has now been charged with "providing material support to terrorists". Summary of case here. Note the significant part of the indictment: "It was further a part of the conspiracy that Ujaama established one or more World Wide Web sites (through which his co-conspirator) espoused his beliefs concerning the need to conduct global violent jihad against the United States of America and other Western nations."

Now whatever the merits of these two cases as criminal prosecutions, it is likely that the government developed an interest in the defendants in whole or in part because they operated websites which suggest the possibility of selective prosecution based on protected First Amendment activities.

While Selective Prosecution is a disfavored defense (because the defendant is not denying the underlying acts charged) in First Amendment cases it can work. See US v. Watamull (9th Circuit circa 1971) in which the owner of a talk radio station (KTRG)was acquitted of the charge of failure to respond to the 1970 Census. The US attorney in Honolulu, charged the owner, station manager, show host, and a guest of horrific crime of census resistance (maximum $100 fine) after one of the station's shows featured an interview with census resisters.

Not a vast number of censorship cases. Many fewer than WWII. But some interesting situations that bear watching.

The Superiority of Conventional Weapons to WMD
Eugene Volokh quotes e-mail from reader Stephen Marsh:

Saddam would have been much better served if he had spent the money buying portable disposable anti-tank missile launchers (of the same category as the LAW missile) and just provided them to the PLO. Suicide bombers with LAWs would have an impact far beyond anything currently seen.

For an interesting take on this point see A Weapon For All Seasons: The Old But Effective RPG-7 Promises to Haunt the Battlefields of Tomorrow. Fascinating stuff.

Exploiting online raunch at the polls - by Declan McCullagh

Granholm's efforts are also constitutionally suspect. In April, the Supreme Court ruled that only porn produced with real children could be censored. "Morphed" or fantasy porn produced using adult actors or bit-twiddled using computers was offensive but legal, the court ruled

Good article Declan but be careful about this language.

The Supremes didn't rule that morphed or animated kiddie porn was legal. They said that the added controls and penalties of the Child Pornography Prevention Act couldn't be applied to it. If found obscene under the Miller Test, morphed or animated kiddie porn would still be illegal.

RTF Webmaster Pleads Guilty

RTF Webmaster to be Convicted on Monday, Sept 23rd

Raisethefist.com, Sherman Austin will be convicted on Monday, Sept 23rd as he pleads guilty to felony count: 18 U.S.C. 842 (p)(2)(A): DISTRIBUTION OF INFORMATION RELATING TO EXPLOSIVES, DESTRUCTIVE DEVICES, AND WEAPONS OF MASS DESTRUCTION WITH THE INTENT THAT SUCH INFORMATION BE USED IN FURTHERANCE OF A FEDERAL CRIME OF VIOLENCE.

The plea bargain gives Austin a felony conviction with 1 month in jail, 5 months in a half-way home and 3 years supervised release. Austin does not start his sentencing on Monday, but will find out the exact date at his court appearance.

The arraignment is at the downtown federal building in Los Angeles on 255 east temple on the 3rd floor at 8:30am

Another one of those unfortunate chicken defendants we seem to get. He would have got a max of 4-5 at trial. So now he has a felony conviction anyway plus endless parole supervision which gives the Feds way too much control over you. And he gives up a chance to challenge the "Publish Bomb Plans" go to jail law.

If you go to trial and lose and do your time you are then free of supervision. Plus you never admitted any crime. A plea is an admission. When you are in custody, your cooperation is the only thing you can deny your captors.

See some of the actual links:
http://www.raisethefist.com/news.cgi?artical=wire/----9846413t4a.article
and
http://www.raisethefist.com/news.cgi?artical=wire/----9845643t4a.article

Being bombed can be fun.

Overlooked in discussions of the terror bombing of civilian populations by wartime combatants is the fact that being in a city undergoing such an attack can be a very enjoyable experience.

My friend Byrt was around 20 the first time he was bombed. A native of Berlin, Byrt was a skinny kid. His slenderness would later allow him to slip between the slats of the rail car that was taking him and his mother somewhere as guests of the German government [religious differences]. He was never to see his mother again.

He was first bombed on the evening of August 25th 1940. Byrt heard the noise as the city's defenses began to fire and ran up to the roof of the building where he was staying. He sat there and watched the first of many British night bombings of Berlin.

In later years, Byrt said that being bombed was great because it provided him with evidence that someone, somewhere was fighting his government and perhaps he had some small chance of survival.

In the end Byrt did survive and is, today, enjoying his retirement in the Northeastern US.

True Hallowed Ground

George Will on Chancellorsville and the WTC.

...But regarding commemorations, Americans today seem inclined to build where they ought not, and to not build where they should, as at the site of the World Trade Center.

In New York City, many people who are anti-growth commerce-despisers want to exploit Ground Zero for grinding their old ideological axes. They favor making all or most of the 16-acre parcel a cemetery without remains, a place of perpetual mourning -- what Richard Brookhiser disapprovingly calls a "deathopolis" in the midst of urban striving.

But most who died at Ground Zero were going about their private pursuits of happiness, murdered by people who detest that American striving. The murderers crashed planes into the twin towers, Brookhiser says, "in the same spirit in which a brat kicks a beehive. They will be stung, and the bees will repair the hive."

Let the site have new towers, teeming with renewed striving.

Local: Ex-guardsman on FBI watch list 09/11/02

Flying while Italian.

Maybe he could change his name?

"She said, 'We are having trouble clearing your name. Actually, we can't clear your name. You are on an FBI list," Musarra recalled.

Musarra, 47, is a father of three who works for the U.S. Forest Service at the Mendenhall Glacier Visitor Center. He is white, of Italian and Irish ancestry, and was born in New Jersey. He has lived in and flown out of Juneau for seven years. Because of his work with the Coast Guard and the Forest Service, he has had more federal background checks than he can remember.

For a reason Alaska Airlines, the FBI, the Federal Aviation Administration, and the newly created Transportation Safety Administration cannot or will not say, Musarra's name, which is Sicilian of Arabic origin, is on a list of suspects who pose a potential threat to airline security. And, at this point, there is no way for his name to be removed.

Libel.com
On the topic of libel by Blog.

By August, Rose had had enough. He instructed his lawyer to write to Fr. Johansen and Johansen's bishop, James A. Murray of Kalamazoo, a letter containing a partial listing of Johansen's comments considered "blatantly defamatory" by Rose. The letter accused Johansen of "an obvious effort to intentionally damage and/or ruin Rose's reputation as an author and investigative reporter." The letter asked Johansen to publicly retract two supposedly false claims, and quit publishing commentary concerning Rose's character or literary abilities — or face a libel suit.

One minor problem. The target is a priest who has probably taken a vow of poverty and is probably judgment proof. Libel suits don't affect the judgment proof.

washingtonpost.com: My Public Spirit Stops at My Daughter
Lefty explains why she sent her daughter to a private school.

Our public school system suffers from scarce resources: not enough teachers, too-large classes, not enough fine arts instruction or computers, and a finite number of slots for children in the schools that will challenge them. Sadly, most educational opportunities seem tied to money in one way or another: the higher mortgage payments for homes near the best public schools, or the tuition payments and waiting lists for private schools.

The (private) elementary school I attended had scarce resources, not enough teachers, too-large classes (50 students per class), no fine arts instruction, and no computers (it was the 50s & 60s) yet I managed to learn how to read, write, and compute. Amazing! Course it wasn't a government school.

So someone has decided to remake The Four Feathers. For the 7th! time or so in movie history. The novel by the Victorian writer A.E.W. Mason is more of a study of personal and social attitudes towards courage than an action story. The films have tended to focus more on the action than on the discussions of the nature of courage and cowardice.

I wonder if any other novel has had so many movie versions?

Careful With Those Surveys

CAREFUL WITH THOSE SURVEYS: There's been much talk recently about the First Amendment Center / American Journalism Review survey that purportedly shows that Americans "think the First Amendment goes too far in the rights it guarantees." I say "purportedly" because I've come to distrust media accounts of surveys, especially if they do not contain links to the actual text of the survey instrument. (The American Journalism Review article that I cite does not include such a link, though it does say "poll to come"; perhaps they're planning to post it soon. In the meantime, if anyone knows where the text is posted, and can pass it along, I'd be much obliged.)

Here's the actual survey. A lot of the questions seem a bit flaky of the "Has the media been too aggressive in covering the WOT" variety. Not an FA question. Survey creators should try and be direct.

A more interesting question is whether or not the First Amendment has suffered in the WOT. I haven't seen too many cases. There's the stopamerica.org webmaster being indicted for terrorism in a case that may raise issues about FA-protected activities which supply assistance to terrorists.

Probably the best tracking of FA terrorism problems is supplied by Chilling Effects of Anti-Terrorism "National Security" Toll on Freedom of Expression from the Electronic Frontier Foundation. A casual review of the list doesn't reveal any genuine shut down orders. Lots of talk-talk but very little action.

Eugene Volokh:
FRACTION OF PRISON INMATES WHOSE MOST SERIOUS CRIME WAS A DRUG OFFENSE

In a recent discussion on a lawprofs' discussion list, I again heard the claim that "the vast majority" of prisoners are not morally culpable because they're in prison for a drug-related crime. I'd heard this claim before, so I decided to look this up -- and it turns out that, at least as of 1997, 24% of the federal and state prisoners had drug offenses listed as their most serious offense.

But there is still the interesting question of other crimes beyond drugs. I don't know what Professor Volokh feels about malum in se vs malum prohibitum. Obviously, tax and regulatory crimes are not "wrongs" (including selling tobacco to 17-year olds). You can't go to hell for them. How bad can a crime be if it was not recognized as a crime until say 1986 (like money laundering)? Not very bad.

4 Who Reject Tax System Are Facing U.S. Inquiry[registration required]

Helpful note on taxation from the NYT. We wouldn't want you to pounce on a single word:

"We believe abusive tax schemes, if left unchecked, will erode public confidence in our voluntary tax system," the senators wrote in June. (Voluntary refers to people and companies assessing themselves and filing tax returns subject to audit, as opposed to a mandatory system in which the government sends tax bills.)

It doesn't mean taxes are voluntary. I never would have guessed. Kudos to the NYT for clearing that up.

From Syracuse's invaluable Transactional Records Clearing House site:

The SSA in Peace and War
The federal agency with the most international terrorism referrals in April was a surprise—the Social Security Administration. It recommended 78 individuals be indicted for such crimes, compared with only 39 referrals during the month from the FBI. The Department of Transportation was third with 23 new referrals, followed by the INS and Customs. The FBI was the source of most referrals for domestic terrorism. See table.

We warned you that the Social Security Administration would become an instrument of totalitarian control back in 1935 when it was created. But you didn't listen

Oil Producers Flock to [Skhalin] Island (subscription required)

NOGLIKI, Russia -- Sakhalin Island has long been celebrated in Russia for its salmon streams and shallow ocean waters full of cod, crab and herring -- a bounty for fishermen and for endangered gray whales. Now it's about to become more famous for its oil.

Two multinational consortia are drilling and building rigs offshore, in the first such projects approved by Moscow, and plans are being laid for hundreds of miles of oil and gas pipelines. Since environmentalists blocked President Bush's plan to pump oil from the Arctic National Wildlife Refuge in Alaska, this island across the North Pacific has become all the more prized by oil drillers trying to satisfy the world's demand for energy.

Sakhalin Island's natural assets aren't protected by the same environmental rules that govern drilling in the U.S. Therein lies a global tradeoff: As environmental groups scramble to shield one piece of the planet from oil exploration, the drilling rigs pop up on another sensitive frontier.

Note the irony. Russia currently has more "freedom of enterprise" than Alaska.

General Ashcroft's Detention Camps by Nat Hentoff

Actually, ever since General Ashcroft pushed the U.S. Patriot Act through an overwhelmingly supine Congress soon after September 11, he has subverted more elements of the Bill of Rights than any attorney general in American history.

This is a pretty bold claim given the history of "Main Justice". John has only been AG for 1.5 years. He's only got 2 US citizen enemy combatants interned. By this time in his career, FDR's 4th AG Francis Biddle had 70,000 US Citizen non-combatants interned.

In fact, FDR's two longest-serving AGs Homer Stille Cummings and Francis Biddle are way ahead of John Ashcroft in the race for the greatest foe of the Constitution (among US AGs, of course!).

Homer Stille Cummings Fifty-Fifth Attorney General 1933-1939

Francis Biddle Fifty-Eighth Attorney General 1941-1945

Cummings presided over the greatest federal power grabs in US history.He shepherded the National Firearms Act of 1934 through Congress and the Court. He drafted the court packing proposal to eliminate an independent judiciary. He developed the commerce clause theory that would eventually allow the Feds to regulate every sparrow (or sick chicken) that falls in the US. And it was on his watch that the US version of the modern regulatory state was born with the massive individual rights violations involved. One should note for example that FBI and CIA spying on Americans in the WOT is insignificant compared to the systematic privacy violations of the IRS, the DMV and the rest of the State and Federal revenue and regulatory apparatus.

Biddle presided over the full flowering of the warfare half of the welfare-warfare state that was FDR's gift to us all. The internment of 110,000 Japanese-Americans (70K citizens) as well as many thousands more German and Italian aliens. Note that none of these were considered combatants by their wardens. He was also there for the imposition of full wartime censorship, the confiscation of radio sets, travel bans, widespread FBI snooping, and the sedition trials of war opponents. Likewise wage and price controls, rationing, income tax withholding, and numerous other human rights violations unprecedented in American history.

In comparison Ashcroft's done very little so far. Fewer than 2000 total detainees (including several hundred captured on the field of battle). No censorship. No wage and price controls (imposed on his watch). No rationing. Mild travel restrictions.

While there is no doubt that Ashcroft's actions (and indeed the existence of his office) are wrong from a libertarian perspective, he's got a long way to go on a comparative basis to match the human rights violation records FDR's AGs.

Powell Booed and Jeered at Global Environment Meeting

Delegates from American and Australian environmental groups repeatedly interrupted him, shouting "Shame on Bush!" Some held up banners reading, "Betrayed by governments" and "Bush: People and Planet, Not Big Business."

This recent tradition in which various commies shout "shame" to people they don't like is highly amusing. It also seems a bit weak since all the opposition has to do is point out that "I thought you defectives had abolished 'sin.'" If we can't judge and nothing is wrong and you have no shame then you are logically estopped from shaming others. Too bad. You did it. It's gone.

Since you chose to exercise the right to do anything, you've given your enemies the right to do anything as well.

Eugene Volokh on Home Schooling

...modest testing requirements are generally a political boon to the home schooling movement. California's attempt to clamp down on home schooling reflects the reality that many people, in the education establishment and out, are skeptical of these sorts of do-it-yourself measures. They probably shouldn't be skeptical, but they are. Politically, which is the more effective way fight this skepticism? By saying "OK, impose these testing requirements; you'll see the great results that home schooling produces, and won't have to worry about the possibility that some kids won't be learning their reading, writing, and arithmetic"? Or by saying "No, we will educate our kids ourselves, and we refuse to let you impose any testing requirements"?

In fact we have a genuine historical test of which method works best. From the dawn of compulsory state schooling until the 1970s it was accepted that home schooling (save under unusual circumstances) was illegal. Today, homeschooling is (effectively) legal in all 50 states.

What method was employed to work this change? Did homeschoolers "petition the government for redress of grievances". No. They deliberately violated the law and dared the authorities to arrest them (or quietly violated the law and ignored the authorities). There was a lot of litigation and some politicking but the primary tool was civil disobedience. They didn't trade "testing requirements" for legalization.

By any measure their approach succeeded completely. They achieved a complete reversal of the law in a decade or two. Mostly by civil disobedience and by forcing the courts to recognize that compulsory attendance laws were much more limited than was previously believed.

Avowed Utah Polygamist Could Go to Jail for Life

The man who lived with five wives and 29 children and has gone on national television to talk about his life was convicted in June of raping Linda Kunz Green after he married her in 1986, when he was 37 and she was 13. The marriage produced a son, Melvin.

His wife was the same age as Juliet when she married Romeo.

This is a new stupid marketing ploy by legislators. They changed the name of the crime from "statutory rape" to "child rape" without changing the nature of the crime at all. Pure marketing -- it's not rape at all it's "unlawful sexual intercourse". I haven't heard any of the recent perps or their lawyers point this out. Probably not sensitive to history or language.

Juab County prosecutor David Leavitt, brother of Utah Gov. Mike Leavitt, said investigators started looking into the case after seeing Green and his wives on television.

Classic example of selective prosecution based on exercise of a constitutional right. I hope he's preserved that argument for appeal. It even works in rare cases.

Libertarians accuse Senate candidate of promoting violence

So what's with the Colorado LP?

It's not a violation of the LP "oath" to advocate violence. It's merely a violation to advocate the "initiation of force".

In any case, once a party becomes an "official state party" it has to accept all comers and can't impose any "oath". That's the downside of the political route.

Free Ajmad Radwan.


The Wall Street Journal advocates freedom for the 19-year-old American trapped in Saudi Arabia because of lack of an exit visa.

Why not leave anyway? Small boat to Qatar or Iran or US warship in the Gulf, or somewhere. Meet mom with passport. Centuries of smuggling in Saudi.

In matters of Peace & War and Order & Law I always ask myself WWHD.

What Would Heinlein Do?

It helps.

There are probably good arguments against attacking Iraq but the anti-war crowd aren't making them.

We're stuck with stupid arguments about getting UN approval, Allies approval, Arab approval, Congressional approval, etc.

Those are weak arguments

I guess the opposition is too chicken to risk being called chicken. They should say "Invading Iraq would violate the Treaty of Westphalia" or "War is wrong" or something. But they don't want to.

The Day *My* House was Searched

I was reading the paper one day when I read that the City was going to conduct a sample inspection of all the houses on the 200 to 800 blocks of Oak Street to look for illegal drains. Apparently those sneaky house builders of the 1920's had not guessed that under the Water Quality Act of 1970, as amended, it would be illegal to connect basement drains to the storm sewers. The City wanted to perform this inspection to calculate how many houses in the City were likely to have illegal drains. Since I was renting a house in the 400 block of Oak street, the article interested me. Rarely does the government announce its searches in advance.

Some time later, an inspector showed up at the house.

Inspector: "I'm here to inspect your basement."
My wife: "Where's your warrant?"
Inspector: "I don't need a warrant, you can just let me in."
My wife: "Oh but you *do* need a warrant because I won't let you in without one."

Later, the inspector's boss called.

Senior Bureaucrat: "You aren't going to make me bother a judge for a warrant, are you"?
My wife: "Yes I am. Consider it a free lesson in Constitutional Law."

The house had a for sale sign on the lawn so the Senior Bureaucrat called the Real Estate Agent.

Senior Bureaucrat: "You're showing the house on Oak Street, aren't you?"
Real Estate Agent: "Yes"
Senior Bureaucrat: "Can you let us in because we have to inspect the house and the renter won't let us in"
Real Estate Agent: "I can't let you in because a renter has control of entry to the house as long as he's renting"

Some time later, several squad cars pulled up to the house with lights flashing.

Polizei: "We have a warrant to inspect the basement."
My wife: "Can I read it?"

Time passes while la lectrice sits on the porch reading the warrant.

My wife: "This warrant says you can inspect the basement. Come around to the back of the house and I'll let you down the basement stairs."

Polizei and Inspector inspect the basement and find Illegal Drain.

Some time later.

Neighbor at Garage Sale: "What were all those cops at your house."
My wife: "You know how the City was inspecting everyone's basement? Well we made them get a warrant to inspect our house."
Neighbor at Garage Sale: "Gee that's neat. I didn't know you could do that."

Had we actually owned the house and were we not leaving town anyway, the next step would have been to wheel on in to court and move to quash the warrant because it was a "regulatory search" without probable cause in violation of: "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Courts have upheld "regulatory searches" of businesses but generally have not in the case of "dwelling houses."

FT May 2002: God’s Justice and Ours by Antonin Scalia is obviously an important Read. But the line that is most quotable from my perspective (and citeable in any future criminal prosecutions of me) is the one where a sitting justice of the United States Supreme Court recognizes (and recommends!) the right to revolution.

I pause here to emphasize the point that in my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty—and if that fails, lead a revolution. But rewrite the laws he cannot do.

Revolution presents less of a moral problem than judicial activism. I like it.

Classics from the Past:

How You Can Transport Illegal Digital Content from One Place to Another Without Violating Laws Against Transporting Illegal Digital Content From One Place to Another:

From ???@??? Wed Mar 08 11:44:00 1995
Subject: Cute point from Risks

At the "risk" of passing on items already read, a short quote from the latest Risks Digest seems in order:

RISKS-LIST: RISKS-FORUM Digest Tuesday 7 March 1995 Volume 16 : Issue 87

- ------------------------------

Date: Sun, 5 Mar 95 18:50:01 PST
From: gat@aig.jpl.nasa.gov (Erann Gat)
Subject: The source of semantic content

"It's probably old news for RISKS readers, but a very difficult concept for lawmakers, that the semantic content of bit streams is in the eye of the beholder, and that the apparent correspondence between bits and semantics is the result of engineering convention and not an inherent property of the bits. Any attempt to legislate the content of digital communications is therefore doomed to fail because it is trivial to hide the source of semantic content. The following is a simple example of how this can be done:"

My summary:

1) Take porno image.

2) Encrypt it using One Time Pad (OTP).

3) Transmit encrypted file to A.

4) Transmit key file to B.

5) A & B send copy of file they each have to each other.

6) Porno has been transmitted *without* any person transmitting
any coherent information.

7) Now if A & B happen to be remailers with instructions to retransmit what they receive to C...

Too bad Law isn't Engineering or the above scenario would be ironclad.

DCF

"Daddy, daddy, I'm hungry"
"Call your Congressman. That's the only possible way of getting a bite to eat in this country of ours."

A Faraday Cage for your EZPass:

EZShield.com

EZPass is an Electronic Toll Collection (ETC) system used in the Northeast. A small white box is attached to your windshield and is queried by radios in passing toll booths. Your account is debited for the toll. Your account lists all the booths passed and when so it can be very useful for law enforcement and civil attorneys (including domestic relations lawyers). EZPass has already been featured on an episode of Law and Order. In addition since the system is protected by weak or no encryption, attackers with radios could extract some information by querying your EZPass. Perhaps duplicating it to steal tolls from you.

The EZShield is a little box with a drawer to hold your EZPass. According to the photo, it doesn't increase the EZPass form factor by much. What you are supposed to do in open the drawer to expose your EZPass only when you want to use it and keep it enclosed when you don't.

The interesting thing is that EZShield's sellers believe that there is enough interest in a technological privacy fix that they are willing to advertise it on mass media. I heard it just before the Rush Limbaugh show on WABC in NYC.

Ethics Committee Faults Torricelli on Gift Violations

The old joke has a new cast:

"The greatest miscarriage of justice since Senator Torricelli was acquitted of receiving a bribe that David Chang was convicted of paying."

A Q&A exchange between me and Eugene Volokh:
[Eugene's responses in italics.]

The topic was Gilmore v. Ashcroft -- FAA ID Challenge in which John Gilmore is suing the Feds to be allowed to fly domestically without ID.

So, does John have a chance?

No.

So it is your view that the Feds can ban anyone (except those wealthy enough to rent, buy, or build their own aircraft) from flying, for life, using secret orders, and without any
access to judicial process.

Seems a bit extreme to me.

Could they do the same thing for riding in a car or walking?

What about boats?

My view is only that they can insist that people show id.

So if there is a "Don't Fly" list, you would support people being able to sue to get off it?

Of course.

How can they force you to present something that they can't force you to have in the first place?

Same reason as for driver's licenses to drive. If you don't want an identification, that's fine -- but then you won't be allowed to do certain things where identification is necessary for security reasons.

I promised that I wouldn't send him any more mail for at least a week but now the time is up.

One doesn't need a driver's license to ride in a car. The government is now claiming that you need ID to ride in a commercial aircraft. Since the development of passports for international travel at the beginning of the 20th century, passports (or other travel documents) have been necessary to enter other nations. Commercial carriers began to check them on boarding not for security reasons but because if passengers were refused entry at their destination the carrier was responsible for their maintenance and return.

The problem with such ID requirements is not merely that ID is required. The problem is that the activity can be barred for reasons other than lack of ID. You will also be banned for your characteristics. After all, what's the point of requiring ID to fight terrorism if you can't ban terrorists from flights. Or people who fit a terrorist profile. Or people who owe child support (drivers licenses, fishing licenses, and passports are denied to those owing child support).

An ID requirement, when you combine it with online verification and authorization, creates a federal license requirement to engage in the particular activity. In the above case, a federal license to fly on a commercial aircraft. In other proposals, a federal license to take a job, open a bank account or rent an apartment.

A federal license that can be denied for any reason since it is issued via a computer analysis system driven by a secret algorithm.

It's a license because the federal government is required to affirmatively grant you permission before you can do something.

The right to fly is controlled by the Computer Assisted Passenger Profile System (CAPPS) -- soon to be replaced by the presumably wider-ranging CAPPS2. At the heart of CAPPS is a secret algorithm that determines whether you are or may be a terrorist. You can't know what facts or behaviors cause CAPPS to ban you from a flight since the algorithm is not for public consumption.

In fact, since the Feds have not set up an administrative procedure for you to challenge a denial of flight boarding (or any of the future activities that will be subject to CAPPS2 and similar systems) only those with the $25K to 100K needed to bring a federal civil suit will be able to challenge their denials. The Feds require private businesses that deny you credit to follow an appeals process but don't impose such a requirement on themselves in the much more significant denials that CAPPS2 will make. And even for the rich, these court challenges will be hard to win since the reasons for the denials will be a state secret.

So those who support such ID requirements and such federal licenses should be required to answer a basic question -- what activities should be subject to state and federal permission and which activities should not?

E-Books Not Exactly Flying Off The Shelves

E-Books Not Exactly Flying Off The Shelves
Most Readers Stick to Paper Despite Technology's Hype

By Linton Weeks
Washington Post Staff Writer
Saturday, July 6, 2002; Page C01

Whatever happened to e-books?

Not too long ago and not very far away, certain citizens of the digital world were oh so convinced that an e-book future -- in which the content of traditional books would be electronically zapped to home computers, laptops and specially designed devices -- was just around the corner.
...
There are those in the industry who continue to emote about the e-book and praise its capabilities, but the plain old reading public -- on the beaches, in the coffee shops, at the Metro stations -- just aren't buying into e-books. You don't see a horde of people devouring Huck Finn on a handheld or "Ulysses" on a laptop.
...
Palm Digital Media provides content for owners of personal digital assistants, a market of 25 million people. It offers some 5,500 e-titles in its catalogue at www.palm.com/ebooks.
...
But maybe e-books never really caught fire because there was never a deep desire for them in the first place. The 500-year-old book -- with white paper pages and night-black ink -- is a perfectly good technology for providing word-based information.

Electronic devices, on the other hand, can deliver words and more -- voices and video and music and interactivity. You can play Scrabble on a handheld. Or chess. Or rock-and-roll. You can chat. Or e-mail. Or you can call home or surf the Internet. Why use them to read vast chunks of printed matter?
...
Aileen McHugh, director of electronic publishing at Johns Hopkins University Press, is not so sure. "I think there's a future for books online," she says. "For searching. I think there might be a future for course materials, for students downloading them."

But "for books that people read," she says, "I don't think there's a huge future in e-books."

© 2002 The Washington Post Company

Usual folderol about e-books. I am in the heavy reader demographic "above 40 years of age". And I am a heavy reader. I used to read physical books while walking around and I still do but only in electronic form.

The article missed a few significant items like Baen Books' Webscriptions which has sold thousands of titles since they opened. I get a lot of books from them, myself, because they are a hard science fiction/military science fiction house and that's what I tend to read. Generally SF and Romance have done best in e-book format. Baen offers its books in all formats - online html, downloadable html, RTF, Microsoft Reader, a Palm OS reader, and Rocket Book. And they don't encrypt their e-book files. Perhaps that's why they are profitable and selling more than just about anyone else. Perhaps Digital Rights Management is neither necessary nor sufficient for success in vending digital media.

I read all my e-books on my Handspring Visor because its small form factor means it's always there and can hold plenty of books so I never run out. I also carry court cases that I want to read and other documents that I've converted. On downside -- I'm going through about 3 Visors a year because when you use them for reading while walking you inevitably drop them. At least they're cheap ($99 for rehabbed devices).

I don't know how readers put up with bulky books that can really only be used one at a time. My fear has always been running out of something to read. Plenty of backups in the Visor.

So I wonder. Is Latvia Offshore?

I am in receipt of a fun piece of spam:

Dear Customer,
Looking for a superior asset protection and tax management tool? Concerned about preserving your wealth in the heart of Europe without personal identity disclosure? We have a superior solution, which is able to meet the most demanding asset protection needs of our prospective customers. Please take your time to study this incredible and exclusive opportunity at www.offshore-cards.com
------------------------------------------------------------------
Offshore Cirrus ATM card
Complete anonymity when withdrawing cash
No ID requirements
Would cost you just $180
http://www.offshore-cards.com/anoncir.htm

So I wander over to NSI and discover where "the Heart of Europe" is (OFFSHORE-CARDS.COM) and discover that it is Latvia.

Now it is certainly possible that heroic Latvians could be offering fabulous anonymous bank accounts and credit and debit cards but how would one know this in advance. Then there's the fact that the record was created in May. A bit young. Give it a while to age.

Congressman Wants to Let Entertainment Industry Get Into Your Computer

Rep. Howard L. Berman, D-Calif., formally proposed legislation that would give the industry unprecedented new authority to secretly hack into consumers' computers or knock them off-line entirely if they are caught downloading copyrighted material.

I've been reading things like this for a while but I wonder how practical such an attack would be. They won't be able to hack into computers with reasonable firewalls and while they might try DOS attacks, upstream connectivity suppliers might object. Under current P2P software they may be able to do a little hacking but the opposition will rewrite the software to block. DOS attacks and phony file uploads can be defeated with digital signatures and reputation systems (including third party certification). Another problem -- Napster had 55 million customers. That's a lot of people to attack. I don't think Hollywood has the troops.

RE: Are the Feds Wimps or What? (fwd)

---------- Forwarded message ----------
Date: Mon, 22 Jul 2002 13:54:22 -0400 (EDT)
From: Duncan Frissell
To: "Trei, Peter"
Cc: cypherpunks@lne.com
Subject: RE: Are the Feds Wimps or What?

On Mon, 22 Jul 2002, Trei, Peter wrote:

> Well, the other possible interpretation is that the Feds are not
> black-at-heart, Big Brother, neo Stalinist fascist JBTs
> pouncing on any opportunity to make confetti of the Bill of Rights;
> but rather are actually trying to respond to 9/11 with a minimal
> impact on US Citizens.
>
> ...but of course, that would be an unpopular interpretation on
> this mailing list.


I agree. I assume that they have enough on their hands without adding
wholesale oppression. Takes time. Very expensive. That's one of the
advantages of an advanced market economy. Salaries and other operating
costs are high and the wealth of your adversaries is also so high that
unless you're making a profit on the transaction it's hard to "buy" too
much of something even if that something is oppression.

If the activity to be regulated doubles in size, the regulators had better
double in number too or they begin to fall behind. SEC? Markets can
adapt to demand changes because the actors are self-financing in the long
run so they scale well. Government actors aren't self-financed (only
a small number are in charge of theft) so scaling is difficult. Also
voluntary transactions are easier to complete than coerced transactions
(think prostitution vs. rape) since there is no resistance.

We'll see.

DCF
----
Governments do not become nicer or nastier because of their capabilities
and attitudes. They become nastier or nicer because of *our* capabilities
and attitudes.

So far the massive crackdown by the Feds that has stripped me of my civil liberties hasn't managed to do much. They have to work a bit harder.

I'm back to not showing ID to get into work just like before the war.

The states where I choose not to obtain a drivers license have upped their ID requirements for initial license applications but I already have one and don't patronize them in any case. They still let foreigners drive with foreign licenses so I will become a foreigner if they get too uppity.

Flight delays only slightly worse than usual (particularly since I mostly fly internationally and have always shown my passport). Domestic flight ID fascism is 6 years old this August so no change there.

As far as we know, only a little more than 1000 detained out of a pop of 270 megs. I was expecting that we would at least make WWII levels -- 200,000+ out of a population of 132 megs. I guess there could be a few more internees but they'd be tough to hide. Too many others would note their absence.

I thinks the Feds are just to wimpy to indulge in actual oppression these days. At least on a wholesale basis.

Maybe I'm wrong but I need more evidence first.

Gilmore v. Ashcroft -- FAA ID Challenge

AIR TRAVELER ID REQUIREMENT CHALLENGED
Secret rule demanding 'Your Papers Please' claimed unconstitutional

San Francisco - Civil libertarian John Gilmore today challenged as unconstitutional a secret federal rule that requires domestic US travelers to identify themselves.

Smooth move. Attempt to board a flight to DC on July 4th "to petition the government for redress of grievances". Even if not successful, it will be annoying and will be worthwhile if it manages to crack out copies of the secret security directives (like FAA SD 96-05)establishing the system.

Keep in mind that until the end of the first Clinton administration, it was perfectly legal to fly domestically without ID.

So I'm faithfully reading The Volokh Conspiracy
and faithfully following the link to a joint article on The Second Amendment as Teaching Tool in Constitutional Law Classes wherein I find:

The clash between constitutional rights and government interests is rarely presented more starkly than in the Second Amendment. The government interests (or, even more to the point, public interests) are profound, and are clearly implicated by the private conduct. And yet, whether we like it or not, the constitutional text protects at least some sorts of conduct that inherently jeopardizes these interests. (Even if one believes that the Second Amendment protects only a states' right, one still has to consider what would happen if a state in fact insists on arming its citizens and the federal government claims a countervailing interest in disarming them.

and I find myself desperately trying to come up with some "profound government interests" in disarming the citizenry. I guess that a governor would be worried about an armed citizenry if his intentions were less than honorable. I can't see a governor worrying about an armed citizenry unless he was going to do something nasty.

Can anyone come up with some valid government interests in a helpless population?

In fact, the Feds are probably missing a bet. Here's the DOJ publication United for a Stronger America: A Citizens' Preparedness Guide and it has nothing in it about arming yourselves to kill terrorists. On September 11th, our president could have gone on national TV and said, "I call upon all armed citizens to load their weapons, and go outside to secure their communities against terrorists. Under the emergency powers granted to me, I hereby suspend all federal state and local regulations against the possession and carrying of firearms." Large chunks of the US would have been safe from terrorists. Then the government could have concentrated on the disarmed bits like airliners and so forth. Make their job much easier.

NYPOST.COM National News: NO SHAME By BRIDGET HARRISON and STEVEN HIRSCH

in which the NY Post attacks former Tyco CEO Dennis Kozlowski for not hiding in shame.

July 12, 2002 -- Corporate disgrace hasn't cramped the high-rolling lifestyle of Tyco's ex-CEO, L. Dennis Kozlowski.

While the shamed fat cat awaits a Manhattan trial for tax evasion - and Tyco's stock remains stuck in the Dumpster - he's been living it up on his $25 million antique yacht and enjoying the Atlantic views from his $12 million Nantucket mansion.
...
"It's preposterous that this guy should walk the street," said a fellow businessman who was vacationing on the island. "He's a symbol of the whole culture of greed that has become embedded in our economy over the past five years."
...
One month ago, a Manhattan grand jury slapped Kozlowski with a 12-count indictment accusing him of evading sales tax when he bought $13 million worth of paintings for his Fifth Avenue apartment.
...
The criminal charges - coming at a time when corporate titans have been under scrutiny because of the Enron and WorldCom scandals - helped send the firm's stock diving from a 52-week high of $60 to $14.60 yesterday.
...
If found guilty of all his alleged 12 counts of tax evasion, conspiracy and fraud, Kozlowski, who's free on $3 million bail, could face a prison term of 44 years.

So there he is living it up after evading sales and use taxes on paintings. Meanwhile all New Yorkers blithely evade use taxes on their out-of-state purchases without even knowing they are violating the law. Have you filed a use tax form recently?

How to Dodge the National ID Card

 
Want to avoid the new, improved National ID card.

Simple. Don't pay your child support. In fact, if you don't have any children, get some. And then arrange to be ordered to pay child support. And then don't pay it.

The government won't issue you a National ID Card and you'll have gotten away clean.

No passport.
No Drivers License
No National ID?

Sept. 11 Hijackers Said to Fake Data on Bank Accounts

Sayeth the New York Times:

July 10, 2002
Sept. 11 Hijackers Said to Fake Data on Bank Accounts
By JAMES RISEN

WASHINGTON, July 9 — The Sept. 11 hijackers were able to open 35 American bank accounts without having legitimate Social Security numbers and opened some of the accounts with fabricated Social Security numbers that were never checked or questioned by bank officials, a senior F.B.I. official said today.
...
With no scrutiny from the financial institutions or government regulators, the hijackers were able to move hundreds of thousands of dollars from the Middle East into the United States through a maze of bank accounts beginning more than a year before their attacks.

A spokesman for SunTrust, which is based in Atlanta, said the bank had been cooperating with the F.B.I.'s investigation. The spokesman said it was possible for foreigners without Social Security numbers to open bank accounts in this country, but he could not provide details of what forms of identification the hijackers used to open the SunTrust accounts.
...
One of the first signs of a large infusion of cash coming into the United States for use by the hijackers appears in bank records dating from 2000, when $100,000 was deposited in bank accounts controlled by some of the leading hijackers, including Mr. Atta and Marwan al-Shehhi, Mr. Lormel said.
...

Note that it is as legal as church on a Sunday for non-residents to open financial accounts in the US or Switzerland or the UK etc. Many US banks don't accommodate foreigners but that is because of sloth not law. Certainly online brokers (who are quasi banks) do market to foreigners.

One reason that SS numbers were not verified is that the SSA has traditionally refused to verify for privacy reasons and the alternative method involves doing a credit check which takes time and money. And in the case of non-interest-paying current accounts there are no tax issues.

Banks located in the "red states" are not as bureaucratic as banks in the "blue states" and have been much slower to adopt the controls popular on the coasts. This is changing of course but there are still many social differences which make account transactions easier in the free states.

But let's assume for a moment that Homeland Security shuts the banks down and requires verified DNA samples and licenses from 10 separate agencies to open a financial account in the US. So the middle class Egyptians and Saudis with no criminal records who attacked us are faced with the ultimate challenge of getting the $500K they needed into the US.

By dint of heroic effort, the future highjackers manage to open bank accounts in Egypt and Saudi Arabia. They receive ATM, debit, or credit cards to draw on those accounts. Perhaps they encourage their French or British co-conspirators to open accounts in those countries. They arrive in the US and withdraw the $500 to $1000 per day maximum (per account) from ATM machines. Assume they have only managed to open 5 accounts. That's $2500 to $5000/day. Or 100 to 200 days to withdraw $500K. Not much of a trick particularly since they are not limited to 5 accounts and can get cash advances at any bank with any credit cards they have.

But then Homeland Security outlaws ATMs and credit cards (or at least the international connections of same). This is tantamount to imposing exchange controls which the US has never done. So the attackers have to fall back on Krugerrands. At $333 a pop, they have to get 1500 KRs into the country. Since bullion coins are not considered currency, they aren't covered by financial instrument import reporting laws. But you can just mail them one or two at a time. Most of them will get through. No big deal.

The truth is that it's a bit tricky to block the movement of small amounts of money like this.

Offshore-Based Firms' Officials Won't Have to Swear to Results

Yet another advantage of a "corporate inversion" -- you don't get on the SEC's hit list. Funny!

July 8, 2002

Offshore-Based Firms' Officials Won't Have to Swear to Results

By PAUL BECKETT and CHRISTOPHER OSTER
Staff Reporters of THE WALL STREET JOURNAL

NEW YORK -- The Securities and Exchange Commission's new order requiring chief executives and chief financial officers of the nation's biggest companies to swear to the accuracy of their financial results was intended to restore investors' battered confidence. But two of the companies that have prompted the biggest concerns don't have to comply.

Why? Because Tyco International Ltd. and Global Crossing Ltd. are based in Bermuda, even though they conduct many of their operations and have main offices in the U.S. and are listed on U.S. stock exchanges. Other companies with large U.S. operations but based offshore, including several big insurance firms, also aren't on the SEC's list of companies that have to send in the sworn statements at the same time as filing their next financial results with the agency.

The exemption for offshore companies is likely to add fuel to an already-vigorous debate over whether companies that have their main operations in the U.S. should be allowed to relocate their domicile to Bermuda and other offshore havens, a practice known as reincorporation. In those locales, the companies may avoid U.S. taxes and, critics say, can shield themselves more effectively from disgruntled shareholders.

Threat of Fraud Charges

The SEC's June 27 order requires CEOs and finance chiefs of U.S. companies with more than $1.2 billion in revenue last year to swear under oath that recent SEC filings are accurate. If they do so falsely, the executives could face civil charges of fraud or criminal charges of lying to the government or possibly perjury, lawyers say. The SEC's motivation, it said in its order, was to "provide greater assurance to the commission and to investors" that executives aren't violating the securities laws that govern accounting and financial reporting.

A SEC spokesman said large foreign-domiciled companies over which the SEC has jurisdiction, such as Global Crossing and Tyco, were excluded from the list because the agency wanted to issue the order "very quickly." Therefore it focused only on U.S. companies. The list of companies that must comply contains 947 names.

"We have no plans at this point to change or revise the list," the SEC spokesman added.

Fiber-optic company Global Crossing, which is in bankruptcy protection, is under investigation by the SEC and the Justice Department for accounting fraud. Tyco, the conglomerate, is under investigation by the SEC for its bookkeeping practices. And its former chief executive, L. Dennis Kozlowski, faces criminal charges brought by the Manhattan district attorney that stem from an alleged scheme to avoid paying New York state sales tax. Mr. Kozlowski has pleaded not guilty. Spokesmen for Tyco and Global Crossing declined to comment.

"Most people think of Bermuda-reincorporated companies as U.S. companies and would expect the same rules to apply," said Ann Yerger, spokeswoman for the Council of Institutional Investors, an association of major pension funds. "There is great concern among our members about the dilution of shareholder rights that reincorporation entails, and this is just another reason why shareholders need to be concerned."

The issue is a particular concern for property-casualty insurance companies. While 20 insurance companies, or insurers with corporate parents, are on the SEC's list, an additional five Bermuda-based insurers whose stocks trade primarily in the U.S. aren't, including Ace Ltd., which had revenue last year of more than $1.2 billion.

Full Compliance

A spokeswoman for Ace said that the company is in full compliance with SEC regulations and discloses a significant amount of information to insurance regulators. She said Ace doesn't believe "Bermuda insurance and reinsurance enterprises have an advantage" from a regulatory perspective.

While no insurer has been accused in the recent round of accounting controversies, insurance accounting has plenty of gray areas because of the way insurers estimate and set aside reserves for claims that may not be paid for 10 years or more. Such leeway makes it more difficult for a company to report results that won't need changing in future quarters, which could raise questions under the SEC's new regime.

William R. Berkley, chairman of W.R. Berkley Corp., a Greenwich, Conn., insurer on the SEC's list, said he expects the stock exchanges where Bermuda companies are listed to require SEC-type signatures from company executives. "It would be astonishing to me if companies that were domiciled in Bermuda and were effectively public through the U.S. capital-market system aren't going to be required to do the same thing," he said.

Write to Paul Beckett at paul.beckett@wsj.com7 and Christopher Oster at chris.oster@wsj.com8

URL for this article:
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Hyperlinks in this Article:
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(3) http://online.wsj.com/documents/SECoath.htm
(4) http://online.wsj.com/documents/SECoath-list.htm
(5) http://online.wsj.com/documents/SECoath-statement.htm
(6) http://online.wsj.com/page/0,,2_0801,00.html
(7) mailto:paul.beckett@wsj.com
(8) mailto:chris.oster@wsj.com

Enron followed Generally Accepted Accounting Principles (GAAP) in accounting for the activities of its Special Purpose Entities (SPEs) and concealed its true financial status.

Worldcom didn't follow (GAAP) in accounting for expenses and concealed its true financial status.

Federal and state governments and their Special Purpose Entities (like Social Security) have never followed (GAAP) and regularly conceal their true financial status.

If private execs should do time for their lies and concealment so should our political leaders for their much more significant lies and concealment.