Note that 16 USC § 3373 makes it pretty clear that you cannot in fact be sent to prison simply for possessing an undersized lobster.
"People have been convicted in federal court for violating this statute because they brought back a 'boney fish' from Honduras, not knowing that Honduran law, not American law, but Honduran law forbade the possession of the boney fish. People have been been convicted under this law because they were found in possession of what's known as a short lobster."
In general it seems to me that there are a lot of laws, many of them are confusing and esoteric, and their enforcement is often selective. I've seen court cases where people were acting 'normally' under constant surveillance, and it doesn't go well.
However, I'm actually more interested in the question of how celebrated legal victories would probably not have been possible without the ability to break the law.
So, undoubtedly we need to ensure our legal code is cleaned out of cruft like that.
But I would be careful of complaining about the selectivity of enforcement. Take our hero Snowden for example. He demonstrably broke the law, and even Schneier agrees that the law he broke has purpose.
Not that Snowden is going to be pardoned of his crimes (another form of selective enforcement, btw), but he wouldn't even have the possibility of escaping charges for his "crime" without the ability to apply common sense to peculiarities and circumstances of his case.
Indeed, most legal beagles I know of complain heavily about a different type of regime without selective enforcement: "Zero tolerance" policies in schools that result in insanely stupid punishments being meted out to schoolchildren. Does anyone else remember HN's reaction to the science student in Florida who "made a bomb" at school?
If the Federal government could do nothing else I wish they'd change the budgeting to be something that doesn't essentially mandate spending the whole rest of a discretionary budget on stupid and only possibly-useful kit at the end of an FY to keep that line of accounting from being slashed for the next FY.
I get that the budget is so large that ZBB is probably off the table, but there has to be something we can do to incentivize thriftiness where thriftiness is an option without penalizing that agency in the out years.
It sucks when a department has some negative externalities (LEAs seizing assets in drug cases...)
However, when I talk about selective enforcement, what I mean is that in a world where we're all technically violating the law at some point, and where we're all being monitored intensively, then it's essentially up to those in power to "decide" who is punished and who isn't, without any real standard of measure. In that world, it seems pretty clear who ends up in jail and who doesn't.
Very true. :(
It's such a difficult problem in general though. In the Navy we have a term "sea lawyers" for those who try to finangle the regulations for their own personal gain.
If there was an easy way to fairly resolve each possible scenario we'd have baked it into the laws already. But even where complex solutions are standardized, that depends on the person evaluating the standard; when I was teaching my discipline method for a given failure-to-study would have been way different from a Chief Petty Officer's.
I think the only way it could possibly work in the future you point out is that, given the data exists, that the ones doing the monitoring (if any) are not able to be the ones doing the deciding.
We say "don't combine the data in the first place" but I just don't see that as a realistic possibility. Someone will have that data, and they can "leak" it to the cops just as well as the NSA could.
I think if we own up to the idea that such a data-driven world is not only possible but likely, that next we need to accept that it will happen and develop countermeasures to maintain our civil liberties.
That doesn't have to be directed against NSA alone. The FBI can legally perform domestic surveillance already (with oversight), and I've already mentioned that people at $ISP or $CLOUD_CO can leak damaging information to the cops and kick off an investigation (and such information would be admissible in court, unlike NSA methods).
Maybe adopting FBI's oversight methods for NSA and similar is enough. Certainly I think we're long past due for defining and enforcing privacy protections on-line to match what we expect in the mail and on the phone. Perhaps those protections can also protect a person in the case that a company illegally provides data about someone to the government as well. But then now we're almost back to talking about CISPA again. :)
But I think just pushing for "don't get the data" is a brittle solution at best. That only really works if you're scared of the government alone. I'm concerned about the government, but they're not at the top of my list by any means of parties that could possibly harm me.
For example, many cities have laws about whether or not you can tie up a pet temporarily -- say, hook your dog's leash to a lamp post while you pop into your bank for a moment. But generally they're written broadly rather than specifying only a few types of "pet" animals, so then you get "ha ha this crazy law says you can't tie up a giraffe outside a bank!"
How many eggs would one have to attempt to bring with you to the US before it becomes a jail-able offense? Never-mind that most import stores seem to have them in abundance and somehow get them past customs!
[1] http://www.komonews.com/news/offbeat/Seattle-men-busted-at-C...
This is not to say that government should be able to look at private data just because, or that people shouldn't have secrets.
But once you start envisioning people going so insane that they start rounding you up for things that you did which were perfectly fine at the time you did it, you are envisioning things which are pretty far beyond the protections of law and the Constitution anyways.
Or in other words, if things like PRISM could cause society to tear itself asunder in that way then obviously that program must die. But if society does tear itself asunder anyways, then PRISM would be the least of the peoples' worries, some theoretical U.S. secret police would be able to string you up on slights real or imagined, crimes that are completely fictitious, with or without PRISM.
There is absolutely no program that is "safe" to have in a situation that exceptional, so while I see why you would judge a program based on "Would you feel safe if the other Party had this program" (and we may very well fail the NSA's surveillance programs on this test alone), I don't see why you'd judge a program based on "Would you feel safe if the NKVD had this program".
I wouldn't feel safe if we were in any situation so exceptional that we had an NKVD at all. Despite all the complaints about the NSA, they do not have nearly all the elements of the NKVD (neighborhood informants, secret police, etc.), and it may very well be possible that through our separation of functions that NSA can do its job without inevitably bringing down the fabric of society.
California and a few other states love ignoring this, I believe there's even legislation going up for vote this week that criminalizes exactly this. Until the government is adequately constrainted by its contstituency, we will always have overreaches.
If there's only one lesson I wish people would take away from all this NSA drama, it's this one.
The government is in the end what people make of it, nothing more or less.
Even if you can't be convicted in a court, there's still the potential for intimidation, coercion, and embarrassment due to past activities which were once acceptable but are no longer.
And either way, it's already happening. Remember the sorority president who had her pissed-off email to her "sisters" leaked to the media? Which led to people discovering her Twitter account that showed her to be a racist?
You can't blame that one on the gub'mint; we're already living in that particular brave new world, if people don't want to acknowledge it that's their problem.
What I think will actually happen as far as societal change goes is that we will become used to the idea that people do grow up and mature and stop holding things against them that they said 20 years before.
People should be able to say things in private yesterday (not just 20 years ago) and not have it affect them in public today.
The FBI could get a warrant, or local law enforcement, but that was true in 2012, and 2001, and 1999, and 1983 and 1961 and earlier. And while I understand "Law & Order" is just TV, it's pretty amazing what law enforcement can convince third parties to voluntarily let them see, and has been for decades as well.
Ever since I figured out crypto was a thing I knew to use PGP/GPG for things that had to be secret and to not trust the rest to remain secret forever. Certainly I wouldn't trust Twitter or Facebook, have you ever seen /r/cringepics??
Of course back then I wasn't worried about the government, I was worried about Mallory, but I'm still just as worried about Mallory as I was before.
That would correlate with your statement that it isn't actually illegal, is that why? There are some crimes where it seems as though the public domain has enough knowledge that you should know better without being explicitly told so. But for something like an under-sized lobster, I think you should get a pass on not knowing.
This also presents a problem of enforcibility - will a law be enforced, and under what conditions, if it's a "silly law"? I think this is what really makes it important to have things to hide - you could be tried for what they find if they are pursuing you for other reasons.
In other words, I sure hope Edward Snowden doesn't have an under-sized lobster.
(IANAL, especially not with respect to anything underage.)
http://lawcomic.net/guide/?p=173 (A more entertaining description)
But yes, I guess that most laws do (thankfully) still include Mens Rea.
It is a legal maxim that ignorance of the law is no excuse. A law that has a mens rea (i.e. intent) of "knowingly" refers to some factual circumstance that is one of the elements of the crime.
An example from the New York state penal law:
"156.05 Unauthorized use of a computer. A person is guilty of unauthorized use of a computer when he or she knowingly uses, causes to be used, or accesses a computer, computer service, or computer network without authorization."
In this case the "knowingly" element is satisfied if you knew (or should have known) that you didn't not have authorization to access the computer, computer service, or computer network.
Similarly for possession statutes, the (sometimes implicit) knowingly element is satisfied if you knew you possessed the given item even if you had no idea possessing it was illegal. A situation where the knowingly element would not be satisfied, is if someone snuck the item into your luggage.
Anyone who attempts to understand minutia and not factor in common sense to everyday life will never get to live to age 100 but will quickly perish consumed with anxiety about all the things that can potentially go wrong. So maybe there are weird laws and maybe a set of circumstances came together to cause a small amount of people to get prosecuted and maybe some of them actually did jail time. Who cares?
Having been in business for quite some time there are risks that you take every day that far exceed any chance of an even valid arcane federal law causing you any trouble at all.
It's not allowed to drive w/o a front license plate in my state. But I've been doing it for 2 years now over two different cars because I don't want to mess up the front bumper with holes. I've never been stopped and if I am stopped at some point I might get a $80 ticket. And maybe there is a small chance of me having something worse happen as well (arrest or geez someone could plant something). Who cares? It's a risk worth taking to me.
(I've driven for years on suspended licenses, so I know what you mean [I'm legal now]).
I worry about what I can do to control the things that I can control (or evaluate the risks).
(Today I met with a contractor to get a price on a backup generator for the house. More for the anxiety every time there is a storm and "potential" loss of power rather than the actual loss of power during the storm which has been nominal.)
FYI my attorney is handling part of the investigation for MIT for the Schwartz case and says a report is being released in July. He's a former federal prosecutor who handled a famous computer crime case in the 90's and worked with Ortiz. (He's actually turned into somewhat of a friend who I can talk with and ask questions w/o being billed.)