The Supreme Court let stand the Google v. Oracle decision finding APIs to be copyrightable (mentioned earlier). They did not make a decision but chose not to hear it on the advice of Solicitor General Donald Verrilli who affirmed the appeals court ruling.
The US Second Circuit Court of Appeals ruled the NSA phone metadata collection program illegal. They skip over the constitutional question of Smith v. Maryland and say that since it was not authorized by Section 215 or any other law, it is not legal for the government to do. I love it.

This also does not seem to be an April Fool's Day joke. I think the whole country saw this coming when Shrub started seizing accused terrorists' assets without a warrant.

The Dar Al-Maal Al-Islami (DMI) Trust is one of several suspects whom authors have accused of funding the September 11 attacks of 2001, yet were found innocent in their trials. There have been several cases like this in the US and Europe where either the authors were working from bad information or their good information was inadmissible in court or the defendants had bought really good lawyers or judges. The past leaders of DMI have included al-Qaeda organizer Hassan al-Turabi, and Muslim Brotherhood leader Yusuf Qaradawi was an early advisor. This is enough evidence to bomb them, but not to win a conviction in a court of law.

DMI's lawyers declare the company's complete innocence:

In 2010, the United States District Court for the Southern District of New York dismissed all claims against the two companies, ruling that the plaintiffs had shown nothing to indicate that they ever did anything more or less than engage in routine banking services ...

On April 16, 2013, the United States Court of Appeals for the Second Circuit affirmed the rulings of the Southern District, holding that DMI Trust and DMI S.A. did nothing more than, at most, providing routine banking services to persons later deemed to be suspected of connections to terrorism, and thus that the plaintiffs had failed to state a claim against DMI Trust or to establish jurisdiction over DMI S.A.

Dismissal at district court

I was unable to find the first dismissal on the Southern District web site. Google was unable to find any mention of "Dar" or "Maal" there. I did find the ruling elsewhere. Here is the entirety of the ruling as regards DMI:

Defendant Dar Al?Maal?Al?Islami Trust ("DMI Trust") is alleged to be part of a network of financial institutions that provide money laundering, and financial and banking services on behalf of al Qaeda. Plaintiffs allege that DMI Trust knowingly maintained accounts for al Qaeda front charities, including AHIF thereby facilitating the funding of al Qaeda. Defendant is also alleged to have actively sponsored al Qaeda through the actions undertaken by its purported subsidiaries. Mere allegations that defendant provided routine banking services, and of wrongful conduct committed by independent subsidiaries, are insufficient to subject DMI Trust to liability in this litigation. Its motions to dismiss are, therefore, granted.

This sounds like the plaintiffs failed to show that the subsidiaries were acting under direction from above or that the directors of DMI were part of the same conspiracy. The judge was George B. Daniels and the case In Re Terrorist Attacks.

Appeals court ruling

The appeals court ruling is available and it is an interesting read that explains the difficulties in applying tort laws to those who support terrorists. The judges in the appeals decision were Jose Cabrenes, Reena Raggi, and Jed Rakoff. Cabrenes is also a FISA court judge, and Rakoff is a district court judge from the Southern District of New York sitting by designation.

  • In dismissing O'Neill's claim under the Alien Tort Statute, 28 USC § 1350 which covers any "violation of the law of nations or a treaty of the United States", the court finds that "plaintiffs’ ATS claims are without merit because no universal norm against 'terrorism' existed under customary international law". In other words, the court ruled that 9/11 was not a war crime.
  • In forbidding torts of aiding and abetting, the court cited Rothstein v. UBS AB, a decision by Jed Rakoff and upheld by Amalya Kearse, which held that UBS bank had no civil liability for violating sanctions against Iran. This appears to be well supported by the lack of the plaintiffs' showing proximate cause, by the federal aiding-and-abetting statute 18 USC §2 referring specifically to crimes against the United States and not to civil torts, and by a Supreme Court finding in Central Bank of Denver v. First Interstate Bank of Denver that "Congress has not enacted a general civil aiding and abetting statute․."
  • O'Neill's claim of extrajudicial killings under the Torture Victims Prevention Act was rejected on finding that the TVPA was written to apply to "individuals" meaning natural persons and not corporations. This is also well supported.

Interesting reading: The FBI OIG report on "The wall between intelligence and criminal terrorism investigations" that existed during the 1990s, and chapter 20 of the Final Report of the Attorney General's Review Team on the Handling of the Los Alamos National Laboratory Investigation which deals with the same subject. Here is a summary of key events.

US v. Truong

Before the Foreign Intelligence Surveillance Act was passed in 1978, US intelligence agencies engaged in warrantless surveillance under the presumption that the President could ignore the Constitution in the name of national defense. In the case of US v. Trong Dinh Hung, 629 F.2d 908, judge Harrison Winter of the Fourth Circuit Court of Appeals describes what appears to have been standard practice at the time:

No court authorization was ever sought or obtained for the installation and maintenance of the telephone tap or the bug ... the FBI sought and received approval for the surveillance from the President's delegate, the Attorney General ... The district court decided that the FBI investigation had become primarily a criminal investigation by July 20, 1977, and excluded all evidence secured through warrantless surveillance after that date.

In his decision, Winter found that "the Executive Branch need not always obtain a warrant for foreign intelligence surveillance" if the situation meets the Keith standard of 407 U.S. 297 (1972). That standard involves two questions:

  1. whether the needs of citizens for privacy and free expression may not be better protected by requiring a warrant before such surveillance is undertaken.
  2. whether a warrant would unduly frustrate the efforts of Government to protect itself from acts of subversion and overthrow directed against it.

What Keith Standard?

In that case, the US Supreme Court briefly raised those two questions before spending the next several paragraphs emphasizing the need to get a warrant, finding that "the constitutional basis of the President's domestic security role ... must be exercised in a manner compatible with the Fourth Amendment."

Also of relevance is an instruction to ignore this decision in cases involving investigations of foreign powers or their agents.

As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.

So this Keith standard appears not to be a standard at all, and it is not to be applied to cases like that of Truong which involve agents of foreign powers.

The Truong standard

In applying Keith to the Truong case, the Fourth Circuit took the very, very high bar raised by the Supreme Court and threw it on the ground.

the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following Keith, "unduly frustrate" the President in carrying out his foreign affairs responsibilities.

The Fourth Circuit also ruled that judges are incapable of processing warrants for cases involving foreign agents, in direct opposition to contravening language in Keith.

More importantly, the executive possesses unparalleled expertise to make the decision whether to conduct foreign intelligence surveillance, whereas the judiciary is largely inexperienced in making the delicate and complex decisions that lie behind foreign intelligence surveillance.

It is worth noting again that this decision was issued in 1980, two years after Congress passed FISA to require judicial approval for intelligence gathering. If read broadly, Winter implicitly overturns FISA as an infringement upon the President's war powers. In a concurring opinion, Kenneth Keller Hall references FISA to note that it allows the Attorney General to authorize warrantless wiretaps and therefore "does not contain a blanket warrant requirement".

Donald Russell "wholeheartedly" concurs with Winter's opinion while disagreeing on a triviality.

US v. Duggan

The 1984 case of US. v Andrew Duggan et al, 743 F.2d 59 involved evidence obtained under a FISA court order. The ruling by Amalya Kearse of the Second Circuit Court of Appeals, with Wilfred Feinberg and Walter R. Mansfield concurring, relegates the Truong ruling to a discussion of the history of court rulings before FISA.

65 Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.


70. ... Congress passed FISA to settle what it believed to be the unresolved question of the applicability of the Fourth Amendment warrant requirement to electronic surveillance for foreign intelligence purposes, and to "remove any doubt as to the lawfulness of such surveillance."

Kearse here states the "primary objective" rule that a criminal investigation cannot be the primary objective of a FISA investigation.

94. Defendants contend that the surveillance of Megahey's telephone was not authorized by FISA because the information was sought as part of a criminal investigation. We see no grounds for concluding that the requirements of FISA were not met.

95. ... The requirement that foreign intelligence information be the primary objective of the surveillance is plain not only from the language of Sec. 1802(b) but also from the requirements in Sec. 1804 as to what the application must contain. The application must contain a certification by a designated official of the executive branch that the purpose of the surveillance is to acquire foreign intelligence information, and the certification must set forth the basis for the certifying official's belief that the information sought is the type of foreign intelligence information described. Id. Sec. 1804(a)(7).

FBI procedures in the 1980s

According to the OIG report (page 24), the FBI reacted to the "primary purpose" rule by enacting procedures to separate intelligence investigations from prosecutors.

  1. "requiring prosecutors not to have control in intelligence investigations in which information was being collected pursuant to FISA"
  2. requiring intelligence investigators report evidence of criminal activity to prosecutors in the FBI's Criminal Division, rather than to the US Attorney's Office.

To quote from the report,

The Criminal Division and FBI Headquarters made the policy decision about when to involve the USAO in the investigation, since consulting with the USAO was viewed as a bright line signifying the transition from an intelligence investigation to a criminal investigation.

To my mind this raises the question of why the FBI prosecutors were not already being used if the FBI has prosecutors. If the people gathering the intelligence are not allowed to go anywhere else to seek a prosecution. this also makes it easier for a criminal organization or intelligence agency to exempt itself from the law by controlling the prosecutors.

The Scruggs memorandum

In 1994, Richard Scruggs of the FBI's Office of Intelligence Policy and Review tried to get all communications between intelligence and criminal divisions to go through OIPR first.

To address these concerns about coordination between the Criminal Division and the FBI in intelligence investigations, in 1994 Scruggs proposed amending the Attorney General’s FCI Guidelines to require that any questions in intelligence investigations relating to criminal conduct or prosecutions had to be raised first with OIPR, and that OIPR would decide whether and to what extent to involve the Criminal Division and the USAO in the intelligence investigation. Scruggs’ proposal also prohibited the FBI from contacting the Criminal Division or a USAO without permission from OIPR.

If anything came of that effort, then the wall between intelligence and criminal investigators would a name: the Office of Intelligence Policy and Review.

Needless to say, centralizing these requests would make it far easier for a criminal organization or intelligence agency to disrupt the FBI.

The Gorelick memo

The FBI's wall has so often been blamed on Jamie Gorelick that it is often called the "Gorelick Wall". A reading of the notorious Gorelick memo of 1995 does not bear that out. The Gorelick memo explicitly requires the intelligence unit and the OIPR to each independently contact the FBI criminal division and the US Attorney's Office.

If, in the case of the FCI investigation, facts or circumstances are developed that reasonably indicate that a significant federal crime has been, is being, or may be committed, the FBI and OIPR are each independently responsible for notifying the USAO and the Criminal Division. Notice shall include the facts and circumstances developed ...

This is less of a wall than there was during the 1980s. If this is the Gorelick memo that defined the FBI's "wall" policy for the rest of the 1990s. then somebody in a position of authority was applying their own different rules and blaming it on Gorelick.

The memo does require that criminal investigators seeking "pro-active efforts or technical coverage" first get the approval of the OIPR and the intelligence unit.

OIPR interfence

According to the Los Alamos report, the OIPR indeed applied their own different rules in contravention of the Gorelick memo.

By September 1997, according to Daniel S. Seikaly, Director of the Executive Office for National Security (“EONS”), the Director of the FBI had complained to the Attorney General that, despite the July 1995 memorandum, OIPR was preventing the FBI from contacting the Criminal Division. [962] (Seikaly 4/4/00)

A working group to address the issue, formed by Eric Holder and headed by Daniel S. Seikaly, "disbanded without any written recommendation and no significant action was taken."

The OIPR certainly had an alternative interpretation.

[OIPR Deputy Counsel Alan] Kornblum, on the other hand, believes that the foreign counterintelligence goals of the investigation should be completed, or very nearly so, before the Criminal Division is notified. (Kornblum 7/15/99)

In other words, the Criminal Division will be notified when hell freezes over.

There were also threats:

As noted above, according to Richard, FBI agents have been told that it is a "career stopper if you're wrong" about contacting the Criminal Division. (Richard 8/12/99) Dion believes that a perception has been fostered that any contact with the Criminal Division during an FCI investigation will risk the FBI's ability to seek a FISA in the future or, if one is already in place, that such contact will result in it being shut down. (Dion 8/5/99)

And it was all blamed on Scruggs.

According to SC Bereznay, when Scruggs assumed office [in 1993], he "clamped down" on contacts between the FBI and the Criminal Division, and, since then, the FBI has not fought these restrictions.

2002 ruling

At some point the FISA court imposed even more restrictions on the FBI that led to the government filing suit against itself to get the restrictions lifted. The case is 310 F.3d 717, "In Re: Sealed Case", with a per curiam decision by Ralph Guy, Laurence Silberman, and Edward Leavy. The judges stated:

it is quite puzzling that the Justice Department, at some point during the 1980s, began to read the statute as limiting the Department's ability to obtain FISA orders if it intended to prosecute the targeted agents ... it is virtually impossible to read the 1978 FISA to exclude from its purpose the prosecution of foreign intelligence crimes...

On the topic of the Gorelick memo:

The procedures state that "the FBI and Criminal Division should ensure that advice intended to preserve the option of a criminal prosecution does not inadvertently result in either the fact or the appearance of the Criminal Division's directing or controlling the FI or FCI investigation toward law enforcement objectives." ... Although these procedures provided for significant information sharing and coordination between criminal and FI or FCI investigations, based at least in part on the "directing or controlling" language, they eventually came to be narrowly interpreted within the Department of Justice, and most particularly by OIPR, as requiring OIPR to act as a "wall" to prevent the FBI intelligence officials from communicating with the Criminal Division regarding ongoing FI or FCI investigations.

Overall, this ruling cuts a path through the confusion of different interpretations and the recent passage of the PATRIOT act. Notably, the ruling also raises the question of whether a FISA warrant meets the constitutional requirements for a search warrant but chooses not to answer the question.

Here, have a conspiracy theory. Allegedly from Al Martin's book "The Conspirators":

Lee Radek has been a chief of the Public Integrity Section for a long time. His confederates within the DoJ were Dave Margolis and Mark Richards. These three men, operating under George Terwilliger, essentially managed the Iran-Contra coverup for the Department of Justice. Below the three, there was a control mechanism that filtered down to the local US Attorney's offices. The control man in the Miami US Attorney's office during Iran-Contra was William Richard Scruggs who reported directly to Margolis. There is actually an official title, Cover-Up Operations Field Manager. You will see in the "pink cable" traffic - restricted cable traffic between the US Attorneys offices and the Department in Washington. Scruggs was one of the 1100 Reagan-Bush holdovers brought into the Clinton administration specifically for that reason. The control conspiracies and ensuing coverups remain from administration to administration. Scruggs rose to the rank of National Security Advisor for Janet Reno, while at the same time still being under indictment for kidnapping in Costa Rica. (Al Martin - The Conspirators, pgs 346, 349-350)

Some lightweight research suggests that this William Richard Scruggs is the same person.

This is interesting: Allan Kornblum co-authored the Foreign Intelligence Surveillance Act. The name is spelled slightly differently, but he was the same person. So it was a FISA co-author interpreting FISA to require a strict separation of the criminal and intelligence divisions.

The US Court of Appeals for the Federal Circuit has granted copyright protection to APIs and the layout of files on a filesystem. This makes it legally impossible to write a homebrew replacement for a software library in the United States. The decision, by Kathleen O'Malley with S. Jay Plager and Richard Taranto concurring, gives the example of the name "java.lang.Math.max" being a copyrighted work on the grounds that someone trying to implement a replacement math library could have used the name "Math.maximum" or "Arith.larger". Until overturned by an en banc rehearing or the Supreme Court, this decision outlaws Wine, Samba, Mono, Blackdown, probably half of GNU, and certainly Linux and the BSDs, not to mention OSX.

Thailand's Supreme Court kicked out the Prime Minister effective as of 2011, also knocking out nine ministers. It looks very much like Honduras a few years ago. The court found that the PM committed one of the Thou Shalt Nots of their Constitution and was therefore no longer Prime Minster from that point. In this case, it was replacing the head of the National Security Council with a relative, which the Court found to be an act of corruption.

Thailand was the scene of some very partisan protests last year, so there's a chance this could get ugly. Hopefully calmer heads will prevail.

Edward Lane was fired by Central Alabama Community College for responding to a court-ordered subpoena. He is suing under 42 USC 1983, claiming deprivation of rights under color of law because the college is a state agency. In my opinion, the judge who ordered him to testify should have declared whoever fired him to be in contempt of court.

TV is promoting torture as an effective tool for the good guys -- at least on Fringe (which I haven't watched) and "everywhere in American entertainment now" (which I haven't watched). Via [personal profile] james_davis_nicoll.

I remember hearing rumours back when "24" was a new show that friends of Rush Limbaugh were intentionally writing torture into the scripts as a way of programming the audience to support the torture which the Bush administration had already approved, but was not yet widespread public knowledge. Then a few years later I tried to find whatever random blog post I had heard these rumours from and couldn't find anything.

I have seen a couple of shows of NCIS where the "good guys" willfully break the rules of evidence, such as conducting searches without a warrant. On Law and Order, at least there's an argument about it and the judge sometimes throws the evidence out. On NCIS, the attitude is "look how edgy our guy is!"

Zee Dee is trying to shake down webcomic creators, which is like trying to draw water from a dry well, by charging them $1,000 to mention a PC Magazine report on their own webcomics. Scenes from a Multiverse has a take on it.

A "Smart" television was caught phoning home all of the information it could get. Most people probably still think of TVs as simple translators of analog video and sound signals, if they have any understanding of how a TV works at all. It's not so simple anymore.

This is also a case of shrinkwrap license law being applied to physical hardware. From the comments, a retailer (Curry's) refuses to take the TV back on the grounds that the purchaser had to agree to the terms and conditions after plugging the TV in.

Somebody Wikileaked the Trans-Pacific Partnership Agreement, a treaty being developed in secret. It's ugly in both affect and appearance; I could write a better law drunk at 2AM. Here are some key sticking points seen on a skim:

  • (E.1) Signatories must allow software patents and patents for business processes.
  • (G.10) Reverse-engineering is outlawed.
  • (H.2) The courts must presume that someone is a copyright holder because they say so.
  • (I.3) ISPs are liable for copyright infringement unless they remove material when someone tells them to.

And the entire thing is full of why-is-this-in-a-treaty WTFs.

The Illustrated Guide to Law - Comics for people who lack the attention span to read a law book.


Nov. 2nd, 2013 06:51 pm

Interesting reading: The CIA reviews several instances of Russia planting stories in the media from 1957-1959. Anyone who thinks this sort of thing stopped happening in the 1950s is an idiot.

Raymond Ibrahim alleges that American universities have rewritten history to portray Mohammed's warriors as a leftist liberation force. Where I will agree with him is in seeing a general pattern in society of reliance on recently published secondary sources combined with ignorance of both primary sources and older secondary sources that may be better informed by being less distantly removed from events than a modern publication. I place the majority of the blame on the fact that old books do not have marketing agencies.

Times change: Rhode Island's Brown University, which in 1966 reluctantly allowed a speech by Nazi Party leader George Rockwell in the name of free speech, has now forbidden a speech by New York City Police Commissioner Ray Kelly.

A quick note on US politics: If Americans want less extremist Republicans, Americans will need to elect less extremist Republicans. What would happen if the Republicans ran a pro-choice, pro-marijuana liberal who speaks out against the Tea Party and the other extremists on his side? This is not a hypothetical scenario. It is the NYC mayoral race. The last time I looked at the polls, the liberal Republican was down by more than 50 points.

Another quick note on US politics: Obamacare is looking bad, and I'm not talking about the website. The website is a distraction. A website can be fixed. The system itself seems to be resulting in higher costs for everyone for exactly the reasons Republicans have been claiming it would, but everyone treated their talk about the wonders of market economics with a Reaganesque dismissal of "there you go again". Horror stories include people seeing their insurance costs doubling when they are allowed to keep their insurance, their work hours cut to save their employers the cost of insuring them, and deductables so high they get literally no benefit from being insured. Whether the Republicans will see any political benefit from correctly predicting this mess will depend on who the public blames for these features: the newly enacted legal system or the "it's the system, man!" of all rich corporations except for the Democratic-donor insurance companies who are going to be making a bigger fortune from this. From my perspective, the right-wingers who tried to stop it by blocking the budget are starting to look like heroes.

That's not even getting into my concerns about the "health care markets" where I've been predicting that the finance capitalists are going to do to your insurance costs what they did to California's energy costs twelve years ago when we had an energy market that was supposed to lower our energy costs.

How much is a human life worth? Among the many problems of the United States is the escalating value of damages in civil cases for death, injury, and emotional distress. I don't know of any study on the issue, but judging from headlines the change in jury valuation of these woes far exceeds the rate of inflation. Some headlines report claims as much as ten times what the average man will make in a lifetime. People are beginning to perceive lawsuits as a combination winning the lottery, a rare opportunity to bring sudden wealth to someone in your social class, and a form of punishment rather than a means of rebalancing society after a harm has been committed. A small city or business can be bankrupted by an accidental death claim if it is not insured, resulting in the cost of insurance going up and public services going down. Individuals used to be safe from these lawsuits until the second OJ trial. Now, the only reason they are not being sued is that they don't have enough money to go after. A related issue is that the lives of some people are valued more than others in awarding damages for lost wages, as if it were known for certain that the victim would not have been downsized or hit by a bus the next day.

One of the most celebrated foundations of civilization is the Code of Hammurabi which was largely a table of damages for claims for death and injury, literally written in stone. Medieval Germany had the concept of Weregild, literally Man-Gold, the value of a life. Anybody who took a life could make amends by paying a value of gold equivalent to about $50,000 USD. Is this something our modern civilization needs? If we were to set a limit on claims for wrongful death or injury, it would benefit most the rich who would be less harmed by a fine than the poor. Most importantly, would it work? I believe that California does have a liability limit on medical claims, but it has not had a significant effect on medical insurance costs. There is some evidence against, from experience.

"Legal Schnauzer" Roger Shuler has been arrested for writing about Robert Riley in contempt of a court order written by Robert Riley. Riley [Edit: hell of a mistake there] Shuler was the most prominent writer on the prosecution of Alabama Governor Don Siegelman, which cost him and his wife their jobs.

[Edit 10/27] Aaron Walker comments on the similarity to his case. [Edit #2] And, Robert Stacy McCain suggests that Shuler may be part of the gang involved in getting the court ruling forbidding Walker from blogging about Brett Kimberlin and harassing other bloggers writing about the subject. McCain's evidence is that Shuler has written (allegedly) defamatory things about Ali Akbar who is notable only for forming a legal defense group for the bloggers being sued by Brett Kimberlin, and that someone calling himself RogerS showed up on one of Kimberlin's blogs to praise Kimberlin's RICO lawsuit against Walker and other bloggers who have written about him.

[Edit 10/29] Ken White at Popehat gives his take on the story.

Legal systems very different from ours - draft of a book to be published that the author placed on the web.

Iowa's Supreme Court ruled that a bar owner is might be responsible for the injuries that a patron received from a fight in the parking lot after the bar kicked him out. Note: the ruling is to reject summary judgement and allow a trial to proceed. That's far less outrageous than I thought it was at first.

Interesting quote from the ruling: "the assessment of the foreseeability of a risk is no longer part of the duty analysis in evaluating a tort claim... Forseeability is not longer part of the duty determination". The decision is based on the Restatement (Third) of Torts saying that a business's duty of care "applies regardless of the source of the risk. Thus, it applies to risks created by the individual at risk as well as those created by a third party's conduct, whether innocent, negligent, or intentional." This is a huge change in the law that apparently happened between when the second and third restatements were published in 1965 and 2000. I was not able to find the source ruling that the third restatement would be based on.

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