Elections & Trade Secrets

For those not keeping score, the recent federal elections are not completely over. The race for Florida 13, while certified by the Secretary of State, is not yet settled to the satisfaction of the losing party. In this case a Democrat who appears to have lost because many other people who voted Democrat on other races failed to vote in her race.

At the heart of the controversy are fancy touchscreen voting computers, which lack paper-trail verification, and have been the target of sustained criticism from voter rights groups for the past several years.

The Herald Tribute reports that the challenger's motion to see the voting computer source code has been denied. Based on the article, which lacks sufficient legal description for this law school graduate, the judge felt the case as presented was mostly one of "conjecture" and was insufficient to override the trade secret protection of the voting machine manufacturers.

And so we enter the final realm of IP protection. I've spoken before on copyrights, patents, and trademarks... but trade secret just doesn't make it into the news all the often and yet is the single most important form of protection in the computer industry. The idea is simple: if a company has information they produced and they take reasonable steps to keep in secret, then it is consider a "trade secret" and entitled to protection.

The most common situation in which I've encountered this protection is when one tech company sues another and source code is at the heart of the matter. If one company seeks to discover the source code, the other can argue trade secret protection to prevent a competitor from accessing the source, or worse yet, the code entering public knowledge and losing all protection.

But there is a standard remedy which seems relevant to this election case. Known as a protective order, the moving party can request the source code be reviewed by lawyers (and their experts) who are may review the code and determine if their suspicions are correct. The lawyers are required to keep the information from their client. If the code reveals something relevant to the case, they can go to the judge and say "look, this has a direct impact on the case it must be disclosed to the parties." Then the judge can rule on something substantial.

In the present case, trusted experts could look at the code and make a determination on whether votes could have been improperly counted, present that determination to the judge who could make an informed ruling. Instead the judge seems to have bought the manufacturer's claim of software perfection. Mind you, Microsoft has been saying for years that it is impossible to make bug-free software and thus they should not be liable for damages as a result of their bugs.

I hope the Florida Appeals Court thinks about the precedent being set here when legitimate claims of voter fraud are weighed against trade secrets.

In Town

I arrived in Seattle on Friday (having walked, ridden on three buses, and airplane, and a car) and I couldn't be happier to be back. The why behind my love for this place is certainly still true. I won't bore you with details, but it has been great to see the city lit up (well, the parts that have electricity, anyway) and see friends and family.

Hopefully if you are someone who reads this blog, I will contact you soon to setup a time to meet while I'm in town. If I don't, chances are I don't know you read this self-defacing trash. Contact me.

Webcomics For Life

A friend of mine sent me a humorous webcomic that deserves to be shared with a wider audience. I've never heard of this particular strip before, but if you are into math, technology, and humour, it may be for you.

If not, I still think this one is a particularly excellent reflection of me, as a person. I'm not saying the girl has ever left before, but the scenario certainly started out the same way.

Make sure to hang your mouse over the image for a few seconds to uncover one of my life's guiding philosophies.

Here's the strip.

Thoughts on Digital Video

For those who don't regularly browse youtube content or browse slashdot obsessively... I suggest something which I think is well worth the bits to download.

Here's a link.

But you don't come to Pro Bono Geek for links to the latest media content. There are better blogs written by much more interesting people out there for such things. So, in addition to the link above (which I repeat again here for your convenience), here are some thoughts on digital video...

I've been considering getting Sarah a digital video (DV) camera for Christmas. Not really sure if I can afford to the level of quality I would want to get her, so it may have to be pushed off until after I strike it rich playing the California Lotto. They have a lotto down here, don't they? Anyway, since the idea came into my mind I've been thinking about what I might do if I had access to such technology.

So far... haven't come up with much. Sarah wants/needs the camera for school. Learning how to use it now will make doing ethnographic film making easier when she gets to that point in her graduate studies. So she's got a rationale for the expensive little bobble. I, on the other hand, have really no justification other than it has cool buttons.

I'm an avid fan of The Show with Ze Frank and his show is made possible by a DV camera. But I'm sure not that funny, nor committed, to doing such a thing. It's already risky that I, a person with political ambition, write a blog... heaven forbid if there were sound bytes!

There are other uses for a DV camera. Like, I'm told that a group of guys once went to Los Vegas with a fancy camera and took a bunch of pictures of their exploits. But that may or may not be true. But how often do you really produce that kind of footage? And, after you've created the footage, what in the world are you supposed to do with it? How often do you rewatch home movies?

All of these questions got me thinking... maybe I'm approaching the question all wrong. Perhaps a DV camera is not a means to a particular end, but a tool for general innovation. For example, I have this new case for my media server. The case includes a vaccum florescent display. At first I thought, wow... what am I going to do with that. Now, about a month later, I've written little display and control apps that allow me to manage my media collection without having to turn on the TV. Neat and energy efficient!

So the question becomes, would I have thought of the idea had I never owned the case? Probably not. But since the tool was available my mind got thinking and eventually innovation struck. Perhaps a DV camera, then, is not technology to be purchase because I have particular goals in mind... but because having the technology will present opportunities I would never have even considered... oh, and because Sarah would like it

So Upsetting, It Actually Hurts

Democrats, as you may have heard, won big in November. What you may not have heard is that Keith Ellison, the new Minnesota Congressman and a Democrat, is the first Muslim to be elected to the House of Representatives. In accordance with his faith he has decided to take his oath of office using the Qur'an, instead of the Bible. This has upset some folks.

The article, if you can call it that, actually hurts to read. It is so full of inaccurate legal and cultural statements that I cringe to think about it. But allow me to share a few quotes which I assure you I am not taking out of context.

What Ellison and his Muslim and leftist supporters are saying is that it is of no consequence what America holds as its holiest book; all that matters is what any individual holds to be his holiest book.

Insofar as a member of Congress taking an oath to serve America and uphold its values is concerned, America is interested in only one book, the Bible. If you are incapable of taking an oath on that book, don't serve in Congress.

Ellison's doing so will embolden Islamic extremists and make new ones, as Islamists, rightly or wrongly, see the first sign of the realization of their greatest goal -- the Islamicization of America.

When all elected officials take their oaths of office with their hands on the very same book, they all affirm that some unifying value system underlies American civilization. If Keith Ellison is allowed to change that, he will be doing more damage to the unity of America and to the value system that has formed this country than the terrorists of 9-11.

Which brings me to one last quote I think is worth sharing on this topic. I think we can all agree that if there is one writing every member of Congress should uphold it is the United States Constitution. It has a valuable passage which I am reminded of everytime someone screams about the need to elect Christian legislators. You'll find this in Article VI of that most venerable document.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Quick Post on Standing and the First Amendment

Washington Post has an article on the Supreme Court's decision to hear a challenge to the Bush Administration's faith-based initiative program. There are a lot of opinions flying around about the faith-based thing, and I'm not really interested in getting into it (for discussions on religion, I suggest checking out my friends' discussions).

What I am interested in is the Administration's effort to get this case booted on procedural grounds. They argue the plaintifs in the case lack standing, which means the plaintifs have not personally suffered a harm. The plaintifs are suing as tax-payers, meaning the only harm they allege is that their tax dollars are being spent in an unconstitutional manner.

The administration is not wrong in that tax-payer suits are dangerous... to allow any old tax-payer to bring a suit would flood the courts with law suits while providing little context for the court to rule. See, the problem with the average tax-payer is that they have no specific facts, no information, nothing to bring to the table that a judge can consider. As such, we have a doctrine that says general tax-payer status does not count for standing.

The administration, however, is dead wrong when "[i]n written arguments filed with the Supreme Court, Solicitor General Paul Clement said the appeals court had transformed a narrow exception in law into a "roving license" for citizens to challenge any action of the executive branch of government." See the mention of the narrow exception? That's what is known as a bald face lie.

The narrow exception he's referring to, and the only exception I know of to the tax-payer standing doctrine, is for establishment of religion cases. The argument is simple... if the government is, in fact, using tax dollars for unconstitutional establishment of religion (as the plaintifs argue in this case), who exactly suffers a harm other than the general tax-payer? Who, without this exception, has standing to challenge? Certainly not the religious institution receiving the funding. If no one has standing, then the behavior continues without scrutiny.

Which, I suppose, is exactly what the Bush Administration wants in this instance.

IP in the News

Two stories worth noting/commenting about and then it's back to work on my Kolab replacement technology... and maybe I'll try to find a job.

First up, the United States Supreme Court heard oral arguments today on a topic near and dear to my heart: obviousness. In order to receive a patent from the United States government an invention must pass a series of tests. They are generally conceived of as: utility, novelty, and nonobvious. At this point utility is pretty much a non-test, as everything has some utility. There used to be a doctrine about public good, but a famous case about those drink dispensers and how they trick you into thinking the juice is fresh (when, in fact, the juice you see is colored water in a continuous cycle) ended any need for public benefit.

Novelty is perhaps the hardest hurdle to cross, because any prior art can nullify your patent. Of course, there is no easy way to access prior art and because trade secret is such a big thing in the technology sector, a lot of prior art is never widely published.

Which leaves us with obviousness. Under the statute, a patent is not to be granted to an idea with someone of "ordinary skill" in the same field could have come up with it. The point being that just because you were first to come up with something anyone could have done does not mean you should have exclusive rights. However, the statute was pretty much eviscerated by the Federal Circuit when they observed that such inquiries have a "hindsight" problem. Essentially, when the court tries to consider the obviousness it does so in the context of the inventions existence. It's obvious because it's already be done. But the Federal Circuit wanted to know if it was obvious at the time of invention.

The Federal Circuit's test on this is odd and I'm not going to get into it because I don't really understand it. Justice Scalia is quoted to have declared it "gobbledygook" and "meaningless." Sounds about right. It's also worth noting that the Supreme Court usually reverses the Federal Circuit if it bothers to take the case, which means the test will likely be rejected and replaced with something better. Which is a good thing.

In the past I have argued the reversal rate reflected a fundamental disconnect between the Federal Circuit and the Judiciary itself. However, my Circuit Court research from last spring makes me doubt that claim. Unlike the regional circuit courts, which can split on the same question, the Federal Circuit holds sole initial appelate jurisdiction over patent claims. Thus there is no such thing as a circuit split in the area of patent law. I suggest this is a bad thing, as it leads to ossification and reduced experimentation, but the Federal Courts Improvement Act of 1982 disagrees with me on this point.

Much of what the Supreme Court does is pick winners in circuit splits, which means one circuit usually gets upheld and the other gets overturned. But in the Federal Circuit context, if the Justices agree with the the Fed Circuit, it's easier and quicker to simply deny cert. The only time they need to bother with a case is when they want to consider overturning a decision. Following the logic, we would expect the only time the Federal Circuit to be upheld is when four justices disagree (enough to grant cert) but can't find a fifth to form a majority. Since most patent decisions are 7-2 or better, we rarely see this situation.

In other news, the first report of a major university selling it's professor's fair use rights has emerged. Apparently Cornell University has entered into an agreement with Association of American Publishers (think RIAA for books) which will significantly constrain the ability for professors to distribute learning materials to students without paying a royalty. Now, I'm not going to say the issue isn't tricky, but this is no Napster situation. Professors are not stealing anything... they are teaching students. Considered by some to be the most noble of all professions.

The heart of the issues is §107 of the Copyright Act, which codifies fair use rights. The act has a four item list which are considered non-exclusive factors to be used in determining a fair use. Since it is a non-exclusive list, there are other factors, but these are the big four. The very first one reads

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

So, as you can see, the professors might think that their teaching falls under the nonprofit education purpose fair use exemption.

The publishers counter that they produce educational materials for the purpose of making a profit. If the very people who are supposed to be buying these products (teachers and students) can just get them for free, then there is no money to be had and it's time to get out of the business. Which is as good an argument as any.

Of course, for decades (if not centuries) professors would have books placed on reserve at the university library where students could access the book for free. Online reserve, which is at the heart of the agreement, is just a natural extension of the old concept, right?

The article first caught my attention because of the inflammatory headline: "Professors get 'F' in copyright protection knowledge." Which I thought was pretty extreme, given the difficult legal questions at issue. But the article redeemed itself way at the bottom when it recognized that not all matters are legal. Even if the publishers are 100% correct, they are essentially biting the hand that feeds them... the professors they are seeking to limit are the very professors who write the material in the first place. Here's the quote from the article.

At Harvard University, in Cambridge, Mass., Chris Dede, a professor of learning technologies at the Graduate School of Education, says the Internet may let faculty members publish their own material and cut the book industry out of the picture.

"If publishers push too hard, faculty may just decide they no longer need a middleman who collects all the profits in each direction," Dede says.

Which just goes to show you... you might have the best legal argument in the world, but if it doesn't hold up outside of the courtroom your just chasing short term victories in your long plunge off the cliff.

Echoes of History

I've been reading pretty much every article that has anything to do with defining the current conflict in Iraq. The big debate, for those not obsessed with language politics, is whether Iraq is in a "civil war" or a state of "sectarian conflict." The stakes are quite high for the Bush Administration. With public support already low, the perception that the Iraq conflict is an internal issue will feed public support for troop withdrawl and signal the final defeat of the Bush Doctrine.

As any good war of words, this one focuses on how you define them. The question of what constitutes a "civil war" is key. There are a number of good articles with lots of academic commentary out there, but here is one for your reading that is as good as any. The Administration's line is "you have not yet had a situation . . . where you have two clearly defined and opposing groups vying not only for power but for territory." Thus no civil war.

The comparisons with the United Stats Civil War are also frequent... some in the Administration have gone so far as to require both sides don uniforms to qualify. Not sure if urban warfare requires color coordination, but the point is interesting. See, President Lincoln refused to recognize the Civil War as a civil war. It was a rebellion. He refused to recognize the Confederacy as anything more than upstart political rebels. Of course, history disagrees with Mr. Lincoln. I suggest that regardless of how the current war of words plays out, history will disagree with Mr. Bush as well.

Curse you Kolab

This weekend I began a colossal undertaking. I was going to install Kolab, the much praised open source groupware solution developed by the Germans. It was going to revolutionize my life... network enabled calendars, contact lists, journaling, and more reliable email. Brilliant.

Today, 72 agonizing hours later, I have totally abandoned my efforts. Oh, I'm sure it could work... eventually. But even I have limits on how many times I'm willing to run full speed into a brick wall. Eventually you remember that it hurts when you do that.

I think the biggest difficulty with the project was the shear number of components that I just simply didn't understand. Kolab combinds a lot of big technology to work its magic. Things like LDAP, SMTP, IMAP, and SASL are just the big acronyms you need to know. Then you have to deal with the particular implementations of those technologies: openLDAP, postfix, cryus, and sasl2. Throw in things like DNS, apache2, and php4 & 5 (technologies I know, but not very well) and you've got a real party.

In the end, the deadweight of all those impenetrable technologies got the better of me. I began to feel like I was tossing stones down a well and using the resulting sounds to not only decide what was down the well, but how to throw the next rock such that whatever was down there would magically convert into an Saturn V Rocket.

But there is a valuable lesson here, the same one the Iraq War is teaching the neo-cons. Understanding a few of the parts is not enough when dealing with interdependent systems. Once you've gone through your old tricks, tried and true though they may be, you are left with a vast network of unknowns, left pulling at various strings in a desperate game of trial and error. After my defeat at the hands of Kolab I was able to purge the entire project, losing nothing more than a few days of productivity. Iraq may prove a different story...

What They Don't Tell You About California

It's cold here. Don't believe me... read this article from the Santa Cruz daily paper. When I got here I put all my heavy tops (sweaters, sweatshirts, etc) way on the top shelf, boxed up all my winter gear, and superglued my heater's temperature dial to off.

Now it's getting to be 30° below and I have to wear socks in the house. What happened to my beach weather? I thought California was a perpetual summer paradise.

I'm demanding my money back.

Putting a Price on Political Tresspass to Chattels

Let me start this post off with a valuable terminology lesson. A chattel, which looks a lot like cattle and even covers livestock in its definition, is essentially any kind of property which is not real property. Better stated, a chattel is anything you can own and move.

Having said that, take a look at this article in the Seattle PI about the New Hamshire Democrats suing the Republicans for $4.1 million on a tresspass to chattel theory. Here's a quick summary: Democrats and Republicans in a big fight over a House seat in the 2002 election (yes, four years ago); Democrats spend an estimated $8.2 million on a phone bank get-out-the-vote (GOTV) system; Republicans pay a telemarketer to place "hang up" calls to the phone bank, effectively blocking outgoing calls from the phone bank; Republican incumbent wins 2002 race; bunch of Republicans are sent to jail for their involvement.

It's all well a good that people are being thrown into jail for this behavior, but the Democrats are looking for financial reimbursement. See, the race is lost and there isn't much that can be done about that (although, one wonders if this could have been the deciding factor...), but what about 2004, or 2006, or 2008? Certainly, the Republicans should have to restore the Democrats to the position they would have been but not for their tortious behavior.

Well, that's what this case is about. See, the Republicans are arguing all they owe is $4,974 (the actual cost of the disrupted telephone service and rental costs). Essentially, the only costs the Democrats can show "on paper." Wherease the Democrats are asking for enough money to be able to run the phone bank again. So, whose right?

If the Republicans are right, heaven help us. Because that is the green light to the party (any party) to engage in clearly tortious activity with actual¹ loses as the only penalty. If I may pant an analogy... if I run into your car and it blows up, the Republicans would argue I only owe you a new car. But what if, as a result of your car blowing up, you miss an important business meeting and lose out on a million dollar deal? Or, let's say you suffer serious physical injury that prevents you from certain kinds of valuable work? In those cases, within the realm of foreseeability, the defendant must compensate the plaintiff.

The Republicans acted indefensibly, criminally, and knowingly. It's not enough that those responsible are being thrown in jail... the injured party must be fairly compensated. Shutting down a GOTV system on election day is worth more than $4,974.

1. Actual damages, just the harm immediately suffered, as opposed to special damages, which cover the rest of the kinds of harm.

Important Update

Today I received unofficial word (official word to arrive via United States Postal Service) that I passed the California Bar Examination. Now all I need is to be found a moral person and I'm in the club.

Here's a pretty picture of my unofficial notification

Click to enlarge

Watching Us (Them?) Lose From Afar

I think one of the hardest parts about being away from Seattle is watching student politics and knowing that (a) I can't do anything about it, and (b) even if I could, I shouldn't. Case in point, today the Seattle Times is running an article about the UW's new approach to extending the Student Conduct Code. Besides mistakenly identifying the Eric Godfrey, newly appointed Provost for Student Life, as the "the UW's longtime vice provost for student life," the article seems accurate. Essentially, the administration is preparing to back an extension of the conduct code... and apparently the students are going to go along with it.

The fight to keep the conduct code on campus has been raging since I was a junior, but picked up serious steam in 2004 after "riots" in Greek Row. Of course, those "riots" were mostly non-students, but the residents of the area tend to lump all "young people" into the same group. Action was demanded and Rep. Murray (now Sen. Murray) took the task to the legislature. Since then the ASUW has fought to protect the civil rights of its membership and been quite successful. The bill never once got out of committee.

This year seems to be the year we finally lose that battle. I suppose it ought to be they, not we. I'm not a student any more... but detaching from something so tied up with who I am is proving difficult. I'm not saying I'm gonna write the ASUW President a letter, but I sure wish he wouldn't lie down before the fight. There are lots of angles on this, and just because the administration is changing its position doesn't mean the legislature is ready to do the same.

----

In an update to a story I posted Wednesday, the White House has nominated Benjamin Settle to the Tacoma seat on the U.S. District Court for the Western District of Washington. Settle's chief qualification seems to be his involvement with former Sen. Gorton (R) election campaigns. Senator Murray, Senator Cantwell, you know what have to do.

The New Seven World Wonders

Folks over at the NewOpenWorld Foundation have decided to name seven new world wonders. For those not "in the know" six of the seven world wonders have failed the test of time. To name a new seven the organization started with 200 and paired it down the 21 now up for public vote. Feel free to participate.

I voted for the following:

• The Acropolis of Athens (450 - 330 B.C.) Athens, Greece
• Angkor (12th century) Cambodia
• The Pyramid at Chichén Itzá (before 800 A.D.) Yucatan Peninsula, Mexico
• The Roman Colosseum (70 - 82 A.D.) Rome, Italy
• The Great Wall of China (220 B.C and 1368 - 1644 A.D.) China
• The Hagia Sophia (532 - 537 A.D.) Istanbul, Turkey
• Sydney Opera House (1954 - 73) Sydney, Australia

I tried to be geographically diverse, but favored older structures over newer structures. The Syndey Opera House, by far the most modern on my list, was not chosen for its location in the Southern Hemisphere so much as I think it's really cool looking. The Eiffel Tower and the Statue of Liberty can be listed once they've stood up for another thousand years. I don't see how The Great Wall wasn't already part of the original World Wonders... perhaps my vote didn't get counted the first time.

White House Messing with a Good Thing

Seattle Times had a headline running on the front page today reading "Political motives suspected as jobs on bench go unfilled." I first thought... oh no, the Democrats are going to go through with their threats of blocking every Bush judicial appointee until after 2008 when we can get someone blue into the White House. And then I actually read the article. Turns out Democrats aren't the problem.

For better or worse, when it comes to District Court appointments (as opposed to Court of Appeals or the Supreme Court), the Senators from the state in which the District Court resides are king. If the nominee is rejected by one of the Senators the appointment is not confirmed. Of course, that gets tricky when the state elects two Senators from different parties as Washington did during much of the 1990s (Sen. Murray (D) and Sen. Gorton (R)). To resolve this problem the two Senators, with the involvement of the Clinton White House, developed a non-political merit process for reviewing and recommending names to the White House for nomination. An ingenious system that, using local lawyers and judges to select the best federal judges for appointment.

For those who don't know, a District Judge is about the least political kind of judge in the Federal Court system. They do not decide law in the way you hear about activist judges doing... that authority is the province of the Appeals Judge. No, the District Judge is a singular entity, usually presiding in court alone, and holds tremendous power of the litigants in an individual case, but that authority does not extend beyond the courtroom. While that may insulate them from the political aspect, it does raise the spector of judicial bribery. Of course, we have a Federal Judiciary, in part, to reduce that possibility, so it's great that Washington uses this open, non-partisan process to select new Federal Judges.

Well, it turns out that doesn't work for the Bush White House. Recommended names have been either rejected or simply ignored. Apparently the White House feels they are better situated to know what is best for the Western District of Washington than, say, the people whose lives (and livelihoods) actually depend on the court's decisions. Hopefully Murray and Cantwell stand up for the process and refuse any nominee not endorsed by the merit review process.

Linux, Games, and Techno Babble

I discovered a significant limitation to binary releases last night: they don't really stand the test of time. What is a binary release, you ask? Well, when a software developer writes a program s/he does so in source code format. That source code is then compiled into object code, also know as a binary ('cause it's all, like, ones and zeros). Almost every bit of code you Windows and Mac users download come in the form of binary releases. Linux, however, is different... the source is available (hence, "open source").

But not everything for Linux is available that way. Last night I decided to bust out the one and only commercial Linux game I own: Sid Meier's Alpha Centauri (affectionately know as SMAC). The company who ported the game, Loki, went out of business years ago; as did its support network. This wouldn't be a problem, except that many of the libraries that the game relies on have changed significantly since then.

If the game were released in source form, the problem could be resolved by a simple recompile. But the source is gone... probably held by whoever gobbled up the assets of the now defunct Loki.

So, what's a gamer to do? Turns out the fine folks over the Gentoo Wiki have already resolved this dilemma. They have unearthed the original libraries designed to run with SMAC and provided the necessary voodoo command to get everything working.

So, to all those folks looking to resolve this needle in a hay stack problem, here are the libraries in question and the magic incantation is as follows:

LD_LIBRARY_PATH=/path/Loki_Compat/ /path/Loki_Compat/ld-linux.so.2 /path/AlphaCentauri/smacx.dynamic

Of course, you will also need the latest patch, which was none-to-easy to find. And applying said patch also required some magic, since it also relies on a broken binary releases. However, you can just unpackage the archive with the --keep flag, edit out the patch verification code (which is what breaks the patch), and then run it just fine.

Public service announcement over.

Post Election Thinking

Welcome back after our Election Week hiatus. Not exactly planned, but the break did provide me the opportunity to sit back and reflect on the politics of a Democratic Congress. First, a brief pause to enjoy the fall of Senator "Split the 9th Circuit" Burns and Senator "I Hate Gay People" Santorum. I realize that several radical House members have also ridden off into the sunset, but as senators these two pushed policies especially divisive to those of us on the West Coast. Good riddens to bad rubbish.

Next up, quick review of initiatives. Washington State proved to be wiser than originally expected by failing the "give property owners more rights than citizens have over their bodies" initiative and the "rich dead people's heirs are more important than poor people" initiative. Here in California, the state adopted a slew of bond measures designed to upgrade the state's infrastructure (a decidedly unsexy topic), rejected a parental consent for abortion initiative, and adopted yet more draconian sex-offender policies (hello GPS trackers!).

Santa Cruz, notable bastion of liberal politics, soundly rejected Measure G, a proposal to raise the minimum wage an additional $1.25 over the already $1.75 increase approved by Sacramento this year. Like I've already said, I'm not opposed to minimum wage increases, but it has to be done with more study on the economic impact. Policy decisions of this scope should not be made on feelings alone. Hopefully the sponsors of G will come back in a few years with numbers on the State-wide change and we can go from there.

Now, onto the big news... a one seat majority in the Senate and a confirmed 11 seat majority in the House (10 seats remain undecided... but many will end up breaking Republican). I've been reading a lot about the Democrats policy proposals and how they want to govern. It all sounds very good, in abstract... but I wonder how well their ideals will fair once the minority remembers it can use open governance to help position the party to reclaim the majority in 2008. Will ideals prevail over politics?

Of course, now the Democrats have to carry the burden of governing in a divided country. The liberal wing of the party is going to be out for blood, just as the conservative wing of the Republicans have been since '94. Of course, many blame the Republican loss on the conservative wing... I imagine the Democrats are just as susceptible. So, how does one govern to appease their base yet mindful of America's delicate political balance?

Anyone who thinks that question is an easy one has another thing comin' to 'em. Look back at the Vietnam War and see how the Democrats, who held the Congress and the White House, tore itself apart trying to appease both the anti-war faction and the pro-war faction. How exactly are the Senate Democrats going to accomplish anything on the war with a one seat majority where that one seat is held by Senator "Bush is Right on Iraq" Lieberman? And let us not forget the Republican filibuster remains a potent tool.

In other words, I'm not convinced the "American nightmare" is over. The nightmare is not Republican control... it is a bitterly divided body politic, many of whom cannot stand the other side. Fighting over seats in the Congress is important, but it's not going to heal the divisive politics of the Bush Administration. I'm not saying the cure is a Democrat as President, but a President who tries to lead from the center (instead of the extrems) would go a long way.

The Problem with Republican Moderates

There has been a lot of ink recently (original appeared in the NY Times, but no longer available for free) about how the 2006 mid-term elections have a real possibility of making the moderate Republican extinct. I'm the first to acknowledge that, in theory, this is a bad thing. Up in Washington State the moderate Republican has long been extinct. It's a shame really, because many in the GOP are unwilling to vote for a Democrat, regardless of how moderdate they may be, so they cast their vote for the local conservative nut job.

But here's why I'm not going to be shedding any tears on Tuesday if the Ds take the House and the moderate Republican goes the way of the Dodo. As a rank-and-file House Member there is one, and only one, vote that really matters: your vote for Speaker. The Speaker has nearly unchallenged authority to control floor votes thanks to House rules and norms. Which means if the guy you vote for cast his vote for a hardline conservative who is tied to the President's hip it doesn't matter how moderate they are... they won't even get the chance to vote on your issues.

The moderates in the House Republican Caucus continue to support Speaker Hastert (maybe because the alternative in the Republican Caucus would have been worse). Which means sending a moderate to the House only furthers conservative domination. This isn't such a problem in the Senate, where the Majority Leader has far less control and individual Senators wield greater influence.

So go ahead moderates, elect a moderate Republican (like McCain or Specter) to the Senate if you like, but if you want a more moderate House you're going to need to send a Democrat and hope they keep their promises of returning to the fair and open rules abandoned by the House Republican leadership after the '94 elections.

Santa Cruz Wildlife

Some of Sarah's family came over this weekend and we went touristing to some of the big Santa Cruz sites. I uploaded a bunch of wildlife photos so you can see what you are missing.

Click the image to see a bigger version where you can actually see the butterflies.

Our first stop was Natural Bridges State Park, where every year in October the monarch butterfly flock in masses for the winter. The numbers get up into the 100,000's! The park has a nice viewing area, but my camera is really not up to the task of effectively capturing the little guys. View more photos.

Later we visited the Municipal Wharf where the sea lions congregate. There are some sea level viewing platforms attached to the wharf where you can get right up close and watch 'em. It still haven't personally seen one of these guys jump up from the water onto the planks, but others have and say it's fairly incredible. View more photos.

My Public Service Announcement

(or, A Miserable Life: Conclusion)

First, thanks to all those who contacted me, both privately and publicly, to wish me the best as I struggled through my throat problems. It meant a lot that people were concerned.

Second, the problem seems to have resolved itself... or, at least become so unnoticeable as to no longer register. My throat definitely feels different than before and I am more aware of its, er, configuration at a conscience level. After what I did to it, is it really any wonder that it would be a little sore?

I really have no idea if it was a popcorn hull or not. For a while the throat pok[ey|i]ness gave way to more of a hair sensation... which would sometimes feel like it was on my tongue (although I could never see it), on the roof of my mouth, and even in my sinuses for a day or two. It was all pretty miserable, and I'm glad that it's over.

I guess my advice to anyone who stumbles upon these posts looking for answers is simple: figure out a way to get to sleep (NyQuil works wonders) and just let your body deal with it naturally. Anything else just increases the torment. Oh, and stay away from the throat cancer bulletin boards.

Copyright Law and Political Ads

The Seattle Times has an editorial today that has finally pushed me into writing something about the intersection of copyright and political advertisement. For those of you who don't wish to read the article, it's a piece from the Times' Editorial Board calling on Darcy Burner to renounce an ad put out by the DCCC. The add uses a snippet from a TVW broadcast where Rep. Dave Reichert (R) said sometimes he listed to the GOP leadership and sometimes he doesn't. Unfortunately for him, he said it such that a little pruning makes it sound like he's a GOP waterboy.

But the Editorial is not just upset about the careful choice of words, they are upset because it infringes upon the copyright of WTV. So the obvious question is, does it? I haven't done a ton of research on the topic, but my gut says copyright is not an issue here.

First, the footage is being used in a political ad, which means it has ample First Amendment protection (in fact, as political speech it has the most First Amendment protection of all other speech). Second, while TVW isn't a governmental entity, it is a 501 (c)(3) non-profit corporation (meaning it has to be for the public good) and it receives nearly 100% of all funding from the Washington State government. Third, the footage is of a public official making public commentary, which means his words and appearance are newsworthy. There has always been an exception to copyright when the news is at stake (see INS v. AP... although the law is muddled here).

There was a Washington Post editorial a few years back about how President Bush rarely gives press conferences, choosing instead to do one-on-one interviews with private news outlets (CBS, NBC, ABC, FOX, etc). As a result, historical snafus on camera become the private copyright of the company which can be forced out of circulation by the White House by threatening to never grant another exclusive interview.

Thankfully Bush has been giving more press conferences of late, so this issue never really matured. But imagine, for a moment, if it did. Would the courts actually uphold a copyright infringement case against a political organization for using footage in an effort to broaden political discourse? I'm fairly certain that was not the purpose of copyright law.

In fact, the Times' Board shot itself in the foot with the following line.

Rather, it is about the use of copyrighted TVW footage without permission, which would never have been granted in this case.

The purpose of the copyright is to ensure those who take the effort to make the copy are properly compensated. To say that the owner of the copyright would refuse the request, even if properly compensated, means the copyright law is being abused.

...and I'm not even going to talk about fair use.

One more thought on this topic regarding YouTube. I've been reading some election blogs which have taken to distributing political ads, and their unique commentary, via the popular video sharing service. This is often the only way to see footage of ads which have been pulled from the air for reasons like embarrassing the candidate, provoking public outrage, spreading untruths, being stupid. These ads live on via YouTube, reviewed and distributed among the political junkies.

Are they legit? First analysis says it's copyright infringement. They aren't copying a few seconds, they are taking the whole kitten-kaboodle. No obvious fair use defense here. But it is political commentary, so it has the whole political speech component. Also, you've got the fact that the distribution is done by private individuals, so the initial producers (the one who pulled the ad in the first place) can claim its not their fault while continuing to get a little bang for their buck on an ad they were forced to pull off the air.

Which means that politics and market forces are going to be more important than the law, but it's still an interesting question.

Because I Already Said It

Slate has an article up, linked from slashdot, saying something I said 15 days ago. Which just goes to show you, you can get better, more up-to-date news and information by talking with your friends who are experts in the subject than you can by reading traditional news outlets.

It's just like Brother Ze says.

Bad Reporting

Some days you've got to wonder how much thought really goes into reporting. As evidence, I humbly sumbit the following Seattle Times article. It's in reference to an individual working at the State Department who is resigning to go teach at George Washington University.

Which is all fine and well.

What is not fine and well is all the extra stuff they tacked onto this article which I assume must have come from a press release. There are two fundamentally misreported facts here.

Miller, a Republican, represented the Seattle area in Congress from 1985 to 1993, serving on the House International Relations Committee.

Which makes you think, wow, a Republican representative from Seattle!? He must be pretty moderate to have been elected to the 7th. Ah, but a little research shows he was in the 1st... which was a socially conservative district until about a decade ago when they started electing Democrats. Hmmm... a decade ago... like, 1993? Strikes me that describing the 1st as the "Seattle area" is somewhat disengenous.

Then we have the truly unforgivable mistake. First, let's take a look at language from a nearly identical Seattle PI article.

He later chaired the Discovery Institute before joining the State Department in late 2002.

Which is a fine statement about his involvement in the ultra-conservative thinktank going around the country pushing "intelligent-design." But, now let's take a look at the Times' version.

He later chaired the Discovery Institute, a nonpartisan public-policy think tank conducting research on technology, science and culture, economics and foreign affairs, before joining the State Department in late 2002.

I took the liberty of emphasizing the new words in case they didn't leap off the page and slap you across the face.

Like I said above, the Discovery Institute is hardly just a nonpartisan public-policy think tank. It is the christian conservative thinktank in this country leading the charge on topics like intelligent design. I don't know why this press release, err, newspaper article, is trying to make this guy look like a moderate... but his public track record suggests anything but.

California Elections

Having posted far too often about my health recently, it's time to get back on topic with a little discussion about the upcoming California state election.

First up, this year is a state executive office year, which has all the biggies up for grabs: Governor, Treasurer, Secretary of State, Lt. Governor. We even get to vote for the Board of Equalization, which is the nation's only directly elected tax oversight authority. Having just recently moved here I don't know beans about most of these candidates, so I'm sticking with the blue team for this round.

The one situation where I took pause was Governor. As you may have read in the papers, California is home of the one, and only, Governator. As shocking as this may sound, I debated voting for the man. Whether or not the Democratic party is willing to admit it, Arnold has done many good, progressive things for this country and done so without drawing too much flack from the Republican controlled national government. A Democrat in his position could not have done as much, in my opinion. That being said, I have high hopes for a serious change in the national government this year. I'm also a little upset that when presented with the opportunity to give the world's 6th largest economy universal healthcare the man in the Mansion broke out the veto pen. So I'm casting my ballot for the other guy.

But the real kicker when it comes to the 2006 ballot isn't the candidates, it's the initiatives. There are five state wide measures, eight state wide propositions, and five Santa Cruz city measures. That's 18 major policy decisions decided by the voters. It's no secret I strongly dislike the initiative process... there simply isn't the infrastructure to properly consider complex issues like sex offender policies (because throwing them into prison for longer terms is not the answer people!).

I'm voting yes on most of the bond measures, no on pretty much everything else. But one no vote I'm casting with particular loudness deals with Santa Cruz Measure G, which would increase the City's minimum wage to $9.25. Let me go on record I am in no way opposed to minimum wage laws. They are an excellent way of addressing known inequalities in barginning power between low-skilled labor and big companies.

There are two things wrong with G. First, the State is already increasing the minimum wage this year from $6.25 to $8 by 2008. The impacts of this change alone will be significant and should be studied before any bigger increases are mandated.

Second, the measure would only impact the City of Santa Cruz, creating what the opponents of G have termed an "Island Economy." Essentially, any company who would benefit from operating outside of the economic zone and has the means to do so, will. It's not like when the state increases the wage... it's hard to move out of such a large jurisdictions. But Santa Cruz is tiny, and several major job providers have already stated they will pick up and move down the road to Watsonville should G pass.

So, I'm voting no. I'm also voting no on a parental notification requirement for an abortion by a minor... look folks, if these kids felt safe talking to their parents about this topic, they would do so of their own volition.

116 Squats!

Today marks the beginning of week six of my 90 day (approximately 13 week) exercise program. My most faithful readers will remember I embarked on a similar journey last year. That attempt was cut short by an uptake in school commitments, personal injuries, and my Grandmother's health. This time, without any school or work or social life to speak of, there is nothing getting in my way!

What is exciting about this day, as opposed to all the other days I've been working out, is that I advanced from Program 1-2 to Program 3-4. It's essentially the same routine as the first one, but with many more repetitions and a whole additional set of targeted exercises (including one where I get to pretend to be Superman). But here's the kicker, at the end of the final round you do "Max Upper Body" and "Max Lower Body," which is essentially as many pushups and squats are your body can handle.

I'm proud to report that when you include all the pushups and squats done during the earlier rounds I completed 116 squats and 87 pushups. On an unrelated note, my arms, having fallen off, are no longer attached to my body.

... also, I've lost over 10 lbs, but am starting to pickup up the weight in muscle. Oh, and a throat update will be forthcoming in the next couple of days... some interesting developments!

Update on a Miserable Life

Well folks, the throat issue continues! I call it an issue because I'm not 100% certain it is a popcorn hull. Could be any number of things. Take a look for yourself. The most common alternative to my symptoms is throat cancer, so I'm still praying that it's popcorn related.

In consultation with my mother, I attempted another bout of forced vomitting. I tell ya, there is nothing stranger than sitting down for a meal you have (a) no interest in eating and (b) no intention of keeping down. My mother recommended rice, so I made myself a giant pot of the stuff and prepared for the worse. Here, I kept a log for your review.

• 8:30: starting making rice
• 9:04: completed making rice, began eating rice
• 9:21: finished eating first "bowl" of rice
• 9:22: entered bathroom
• 9:26: emerged from bathroom, difficult to induce vomiting, after limited success I cannot tell if the hull has dislodged
• 9:29: starting eating second "bowl" of rice
• 9:50: finished eating the last of the rice... still cannot tell if the hull was dislodged from the first go
• 9:51: decide to return to the bathroom... if for no other reason that I ate all of this rice>
• 9:56: bigger success with the vomiting... throat now very sore, no way to tell if hull is gone or not because of the soreness
• 10:55: definitively determined hull still in place

No luck there. I then took some internet advice and did a little exploring with a directional lamp and a butter knife. Couldn't see anything back there.

My final decision then is to just live with it, if you call this living. I'll continue to drug myself at night so I at least get some sleep and if nothing improves after another 7 days (for a total of 14 since first signs) I will make an appointment with an ear, nose, and throat doctor (which, incidental, I will have to pay out of pocket).

Now I'm going to finish my tea.

A Miserable Life

Okay folks, I don't usually blog about these sorts of subjects, but it's 3:26 am in the morning, I can't sleep, and poor Sarah is worried sick of me. About four days ago I ate some popcorn, and ever since then I have had this feeling like something was stuck in the back of my throat.

The first few days I assumed it was related to the cold I was getting over, so I medicated it with some good old NyQuil. Works every time. Yesterday I started thinking this wasn't cold related and starting thinking about what, exactly, could be causing the sensation... that's when I remembered the popcorn.

Turns out this isn't an uncommon problem. Look, someone has even blogged about it before. What's funny about this persons post is that it is a near identical story to my trials and tribulations... drinking tons of fluids, gaggin, scraping, gargling... induced vomiting. Pretty much anything I can think of. So far nothing works.

The only thing that gives me hope is a comment on the blog from a self-identified speech therapist. S/he writes

Everyone has a little flap in their throat that is connected to the very back base part of the tongue. This is called the epiglottis. The epiglottis together with the base of the tongue creat[sic] a little V-shaped groove just as you come over the back of the tongue. Food can get caught here, especially if the food is dry, small or oddly shaped (the hull of a popcorn kernel). Usually it will go away with time or drinking liquids.

My guess is that it did dislodge sometime through all your efforts to clear it. It likely sat there for a little while, which may cause a small irritation. That combined with you hacking, digging, and gagging likely irritated it more, creating a sensation that somethings there. Worse case senario[sic], the kernal permanently planted in your throat and is going to sprout popcorn babies!

So, there you have it... I've (a) made it worse, (b) may grow popcorn babies.

I looked through some of the original posters stuff, she complains about the kernel for several posts until this fateful message.

So now what?

Constitutional Succession

The Washington Post has a frightening piece of Constitutional reporting today. Seems the House rules provide for a secret line of succession should something happen to the Speaker. The Speaker, as it would turn out, is the third in the line of succession for the Presidency should something happen to the both the President and the Vice President. The 25th Amendment provides a means for appointing a Vice President (who could then become President), but no way for appointing both a Vice President and a President as the VP must be appointed by the sitting President.

Enter the Presidential Succession Act of 1947. This act provides for the famous Cold War line of succession that was designed to give faith in our government. I know nothing would give me more confidence during a nuclear holocaust than knowing we had a properly, er, designated chief executive. This is the law that says the Speaker follows the Vice President. It does so with the following legalese.

If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.

So, to be clear, if George and Dick fall over dead tomorrow, Denny would resign from the House and assume the Presidency.

The question the Post raises is what if the same callamity that takes out the dynamic duo also strikes the big guy on the Hill? The Act has the following to say on the topic.

If, at the time when under subsection (a) of this section a Speaker is to begin the discharge of the powers and duties of the office of President, there is no Speaker, or the Speaker fails to qualify as Acting President, then the President pro tempore of the Senate shall, upon his resignation as President pro tempore and as Senator, act as President.

Clear, right, if there is no Speaker than the President pro tempore of the Senate takes over.

Now, all the lawyers in the audience will have noted my emphasis of the word no. What exactly does it mean to have no Speaker. The 108th Congress House Rules shed some light on the subject. Here is the text from Rule I, §8(b)(3)

(3) (a) In the case of a vacancy in the office of Speaker, the next Member on the list described in subdivision (b) shall act as Speaker pro tempore until the election of Speaker or a Speaker pro tempore. Pending such election the Member acting as Speaker pro tempore may exercise such authorities of the Office of Speaker as may be necessary and appropriate to that end.

Here, the magical words are Speaker pro tempore, such authorities of the Office of Speaker, and lastly necessary and appropriate to that end. This language is far from perfect, but I think it's clear the Post is wrong. First, the language makes clear that this unknown individual does not assume the Speakership. His or her title is quite clearly Speaker pro tempore. You'll remember the Presidential Succession Act designated the Speaker, not the Speaker pro tempore.

But wait! What about "authorities of the Office of Speaker" and "necessary and appropriate?" Here's my take. The Act says the Speaker must resign his position and then assume the Presidency. It could be argued that this resignation-assumption process is an authority of the Speakership. But such power can only be used when it is "necessary and appropriate to that end." Which end? The end of being Speaker.

The purpose of the clause is to ensure there is a Speaker, not to ensure there is a President. The member who takes over as Speaker pro tempore pursuant to Rule 1 §8(b)(3) may not then use that power to become President because that's not why they became Speaker pro tempore in the first place.

My final conclusion? If George and Dick and Denny all bite the big one, the country is still safe in Ted's hands.

Truth in Technology Law

I keep meaning to write something about my thoughts on North Korea... but I can't seem to bring myself to do it. So here are a few words about something less important.

Two big developments to report in the world of internet joojoo. First, a Florida jury awarded a Florida women an $11 million defamation award against a Louisiana woman who posted mean things about her business online. This case is interesting for a couple of reasons. First, it's a default judgment, which means the defendant never showed up in court to fight the claim. As a result, we have some jurisdictional issues here. The Florida courts do not, be default, have authority over those in Louisiana. You either have to file in Louisiana or opt for Federal Court. It is possible the defendant waved jurisdiction, but I assume for purposes here that she not an idiot.

Based the article all she did was post defamatory messages about the Florida women's business in an online community. Are these acts sufficient to establish contacts with the forum state? Under the standard International Shoe test for jurisdiction, I'd have to say no. The defendant did not avail herself of the benefits of the forum state and it sure doesn't conform to my notions of fair play.

Which brings me the reason the Florida women sued in the first place... she wanted to send a message. See, the defendant can't pay the judgment. She couldn't even pay a lawyer. The suit was brought to scare her, and others, away from the internet. But this sort of award should never have happened if there were equal parties in the proceeding. Yes, the message has been sent, and the message is wrong and damaging for communication on the internet. The ability to speak should not be limited to those who can afford lawyers.

Second big news: GooTube. But in less than a day after the announcement comes a flood of analysis saying Google is going to get its pants sued off. The theory goes that most (cough, cough) of the YouTube content is copyrighted. Let's assume that's true. Up until now, content holders have tolerated YouTube's infringement because even if you sue and win, YouTube has shallow pockets... which means no actual award payment... which means no incentive to sue.

But now, cry the pundents (and Microsoft's Ballmer), the holder of YouTube has cash. Lot's of cash! So here come the lawyers. Which is probably true... lots of people will sue with hopes of reaching a settlement with the Google giant.

That being said, I don't think Google will spend a dime on settlements with these content vultures. First, Google has shown a willingness to stand against copyright abuse with their book scanning project, the legality of which is something of intense debate. Second, and more importantly, a plain reading of the law shows Google isn't infringing any copyrights. See, under the Digital Millennium Copyright Act, a service provider (such as YouTube) is not liable for infringement by its users provided it has a reasonable means for rights holders to take down the violating copy.

Now, maybe a Grokster style complaint can be won against Google... but the Grokster decision was based largely on the intent of the company. Essentially, the court felt Grokster was encouraging copyright violation in its business plan. YouTube is quite different and we've seen an explosion of user driven content flourish there. I don't think Groskter sticks.

At this point, two days since the announcement, every single newspaper I read has run a story about the legal pitfalls for Google, so it'll be interesting to see how this plays out in the courts, the public, and the market.

Power Lies with the U.S. Senate

The recently adopted Homeland Security Appropriations Act contains a bunch of things. Its most famous, and yet probably overrated, provision is the construction of a 700 mile fence along the United States-Mexico boarder. For an excellent analysis of the fence's likely effectiveness, I suggest watching this episode The Show with ZeFrank.

Less know, yet far more important, the bill contains provisions for the reworking of the Federal Emergency Management Administration (FEMA), long the bad guys in X-Files who were going to strip of our constitutional rights, and most recently the bad guys in real life who let people die on rooftops.

The provision provides specific criteria by which future FEMA Directors are to be judged. I was expecting to provide a link here, but since there are only two qualifications, I'll just include the in their entiretiy for the record.

QUALIFICATIONS- The Administrator shall be appointed from among individuals who have--
(A) a demonstrated ability in and knowledge of emergency management and homeland security; and
(B) not less than 5 years of executive leadership and management experience in the public or private sector.

Now, not surprisingly the President is displeased. And for once let me say, Bush is right.

Not to the extent that the director of FEMA shouldn't have those qualifications... or that years of judging Arabian horses is a sufficiently life-learning qualification. Where he's right is what the law says about Presidential appointments.

First, it is worth noting that the law on this isn't 100% clear... there is lots of ambiguity with things like independent commissions (i.e. FEC, FDA, FCC, etc). But when someone is a clear executive officer, and I don't believe anyone is claiming FEMA is otherwise, the law is clear. In those cases the authority of who is nominated lies solely with the President.

It's right there in the Constitution, Article 2, Section 2. Doesn't say anything about Congress getting to put limits as to who can, and cannot, be nominated. Now, the Congress does get a say when the position is a so called "inferior officer", like a mailman. But the big dudes report directly to the President and do not answer to Congress.

Of course, the founders weren't so stupid as to provide unchecked authority. The appointment power so cherished by Bush is balanced against the Senate's confirmation power. You'll find it right there in the same line of the Constitution that talks about the appointment. A majority of the Senate must approve the appointment for them to take office and exercise all those fancy powers.

The question we should be asking is whether the confirmation process has been broken by partisan intertwining of the White House and the Senate? Consider the following: President Bush nominates Mr. Guy to be the next FEMA Director. Mr. Guy is a donnor to the party, or maybe a former party official, doesn't matter. What matters is that if Mr. Guy falls short of the criteria passed by the Congress, the only people who can actually do anything is the United States Senate, the one with a majority of Republican Senators who for the past six years have staked their political future, and their party's, to the President's vision for America.

What is the realistic chance that the Republicans will vote against the nomination of the President? Will they really give a hoot about the statute? I don't think so. Maybe the Democrats will try to make some political noise, but the only real tool they have is the filibuster, and we all know how filibustering political appointees has worked out in the past.

See, although a majority of the Senators may have adopted that law, they are not bound to uphold it. The laws of the United States do not control the authority of the branches of Congress. If the Senate is serious about adopting standards for political appointees it has to do so with a change to the Senate Rules. Until they start limiting themselves, instead of the President, this is all just smoke and mirrors.

Taste Like Feet

I've been working out regularally since I arrived in Santa Cruz (although my current bout with the cold has knocked me out). Regardless, after every workout I make myself a delicious and nutritious smoothie with my trusty blender. A little bit of sorbet, yogurt, orange juice, frozen fruit (usually banana), and a few heaps of vanilla flavored protein powder. Life's been good.

A few days ago Sarah and I visited Staff of Life, a sort of locally owned Whole Foods near our apartment. They have a separate store that only sells herbal medicines, cosmetics, and assorted therapies. I've been buying my protein powder in bulk from the main store, but at the separate store they have a truly giant selection of various powders.

Among the many options I found 100% Greens & Whey: Vanilla Flavored. Being a man of many flavors, I decided I'd see what all those kids are raving about and picked up a single serving package for sampling.

I find a visual is necessary to fully communicate my feelings about this, er, beverage.

Good lord! I couldn't get down more than three sips. I still have a headache from the quasi-nausea inflicted by this awful concoction. Sarah, my local healthnut, wouldn't even try the stuff. My poor blender will never forgive me for the absolute horror.

Consider yourself warned.

Yet More Cool Information About the World

Hot after my posting about the Congressional power ranking data, I have just heard about Gapminder. (No, not like the "mind the gap" comment you hear on the Tube.) This is a flash based statistics visualization software using data from the 2005 Human Development Report produced by the UNDP.

For some of the cooler visualizations, check out "7. Trends" on the main flash jigger there on the front page.

A New Way to Share

Hot off the launch of my wiki (wiki.probonogeek.org), I am proud to announce a new webservice thanks to my mighty server. Behold:

http://gallery.probonogeek.org/

Right now I only have beach photos up for viewing, but I'll have more as I decide what I do, and do not, wish to share with the general public. I apologize if downloading is a little slow. Comcast isn't the greatest when it comes to sustained upload.

Neat Congressional Info

One of the cool things about working with LegSim is I find out about neat academic work on Congress. Today I was pointed in the direction of Congress Power Rankings.

Essentially, the system ranks each member of the House and Senate using objective factors to determine power within their respective chamber. Once you know each score you can do all sorts of cool things... like find out who is most/least powerful within a particular state delegation. Check your your elected representative and see just how powerful you are in Congress.

Tales from the California Driver's Manual

In preparing to take the laws exam as part of a misguided effort to drive in the State of California, I came across this particular gem on page 16.

Allow older pedestrians more time to cross the street. They are more likely to die as a result of a crash than younger pedestrians.

So, to be clear, if a younger pedestrian takes too long, don't feel bad about crashing into them... they can take it.

Some other qualities items include:

• Never make a U-turn when other vehicles may hit you.
• Do not shoot firearms on a highway or at traffic signs.

I am most dubious about this one.

The force of a 60 mph crash isn’t just twice as great as a 30 mph crash, it’s four times as great!

Now, I admit I'm no physicist, but I know that force = mass x acceleration. Now, the mass in this situation is constant... so did it really take four times as much acceleration?! Can anyone fill me in?

The Race to the Top

Those who study global politics know all about the race to the bottom. In an effort to attract foreign investment countries compete with eachother to tear down barriers to trade... barriers like environmental regulations, labor rights, taxes. You know, laws.

Well, the race to the bottom is usually fueled by an equal and opposite race to the top. Foreign investors looking to make the next quick million dollars... and what do the spend that that hard earned ROI on, you might ask? Well, apparently sending their children to college where they can live like kings.

Behold, the future of residential life in American colleges.

When I lived in the dorms (from 1999 - 2003), I lived in either a double or a triple, usually bunk beds, and always a twin size bed. According to the AP, many colleges are competing with eachother not on academics or opportunity, but with full size beds and luxury rooms. The article makes reference to maid service, professional movers, even limo rides to campus.

During my Junior year the UW upgraded a great deal of its food outlets, brought on a fancy four-star chef to plan the menus, the whole nine-yards. It was outrageous. The cost of food almost doubled, and while the quality got better, it's freaking college. You're not there to eat food.

With college tuition breaking $40,000 a year in some places and college professors making significantly less then their peers in industry, you would think we could refocus that money to more wortheir aims.

Wanting it Both Ways

I must admit that I don't yet read the Santa Cruz Sentinel. I'm sure it's a fine paper and I will add it to my daily routine in due time, but for the moment I continue to satiate my non-national news needs with the Seattle Times and PI. Today, in the News section of the Times I found a foolish editorial by Nicole Brodeur regarding abortion.

She is lamenting the fact that the State doesn't collect enough information from women seeking abortion services. Currently the State asks for the woman's age, race, residency, the procedure performed, and whether there were any complications. Personally, I wonder why they even need that much information.

Now, I'm all for voluntary disclosure of information that can help the State better plan medical services. I don't like the idea of the State mandating that disclosure in exchange for access to medical services. There are lots of reasons why a women may not want to disclose personal facts about who they are or why they are seeking an abortion. Seen at a higher level, a large state-controlled database of all abortion procedures seems like a big target for anti-choice activists to use to embarrass or intimidate future abortion seekers. Lord only knows what the Bush administration might do with such a list.

Nichole ends her editorial with by saying "...if we're going to help women prevent abortions, we have to know more about the lives of those who have had them, all the while respecting their privacy and their choice." That's all well and good, but blasting the limited information that is collected without advancing any concrete ways to collect additional information that won't be used to categorize and control future abortion seekers isn't very helpful.

Bar Update

On Thurday I received notice regarding the Multi-State Professional Responsibility Exam (MPRE). The webpage informed me that a 50 was low, that a 150 was high, and a 79 was necessary for admission into the California State Bar. I received a 115.

So, apparently I am sufficiently ethical to be a lawyer here.

New Adventures in Sun Burns

I'm back! Or, perhaps more accurately, I'm here!

Where? Santa Cruz, California. Just today the Comcast service man came, declared my perfectly fine cable modem to be "broken," and gave me a new one. Oh, and he connected my home to the only utility more important than water.

Now that my apartment is online, most of the boxes are unpacked, and Sarah and I are getting settled down, it's time to start blogging again. I promise a few photos of the apartment later for those who are interested in seeing how my stuff jives with Sarah's stuff.

In other news, I went camping with a good friend from my undergraduate years and several of his work colleagues (Googlers, apparently, is the term). There was a nice lady there who graduated from UW Law a few years back and now works as in-house counsel at some big internet advertisement company. We got into something of a legal argument over whether the behavior described in this Seattle Times article is legal or not.

She thought the dude was okay... whereas my recent bar training says this guy violated the tort of public disclosure of private facts. See, if I convey private facts to you that a reasonable person would not want to be made public, and you go ahead and do so anyway, that's a tort regardless of the truth of those facts (where as truth would be a defense in a defamation suit). No criminal liability, but if I can prove damages then you're going to pay. This guy from Craig's List collected private information about people's embarrassing sexual preferences and then published those facts online. Seems pretty cut and dry to me.

Oh, and about the post title... I managed to sunburn just my knees the other. Seriously.

Ironies of Ironies

Just yesterday I went to visit my friend who is working for Preston, Gates, and Ellis at their downtown Seattle office. After leaving him at the intersection of 3rd and Madison, I had to cross 3rd and Senica to get to my bus stop. I saw the bus roll up to the light I was waiting at and was forced to make a split second decision--obey the crosswalk sign and miss the bus, or do the opposite. As anyone who has spent five minutes with me downtown will tell you, I never cross against the light. It's just really not in my nature. But I was already running late and didn't want to miss the bus... so I waited until all the traffic had cleared, looked both ways, stepped out onto the street, and promptly received my first every jay-walking ticket.

Strike that... first ever ticket, period.

$46 that split second decision cost me. And to think of all the people in the world who made fun of me for waiting at the light. sigh.

In other news, while everyone is very excited that Pluto is no longer a planet, there is one group who is slipping through the cracks in this larger debate about the nature of our solar system. Can you guess who? That's right, the astrologists.

Political MAD

If there is one thing I took away from law school it is how horrible a tool the courts are for arriving at sustainable solutions to societal problems. I'm not saying there isn't a time and a place where the court's heavy hand is appropriate, most notably in situations where the relative power dynamic between the parties is lopsided (civil rights cases come to mind). What I'm saying is that between two parties of relative strength, better they compromise then kill eachother.

In our system the court is asked to narrow down a particular issue into a set of binary questions and then answer them, "yes" or "no." Because of doctrines of judicial restraint, courts try to reduce the set to as few questions as possible, which means that emerging out of nearly ever court case is a big winner and a total loser.

Enter onto the stage, the Washington State Democratic and Republican parties. For decades they operated within a state primary system called the blanket primary. Voters of the state were allowed to vote for whatever candidate they wanted in the primary, party affiliation be damned! There were the occasional claims of party cross over, where Democrates were said to vote for weaker Republican candidates to make it easier to win in the general, but no credible evidence ever emerged in support and several UW Professors spent their carriers demonstrating how the claims were nothing more than smoke and mirrors.

But then California adopted the Washington State system and suddenly the world came crashing down. Parties in California sued and eventually the U.S. Supreme Court struck down the system as an infringement on 1st Amendment rights of association. Well, California had been using a closed primary for years, so it's really not that big of a deal. But the court victory inspired the Washington State Democratic party... "hey," they said, "we could exert more control over our candidates if we did what California did." And so they sued the state and got our long herald blanket primary system thrown out.

Enter the Grange, an interesting non-profit organization originally designed to protect rural interests. These days their primary activity seems to be to back initiative drives. The Grange was apparently a big supporter of the blanket primary and disliked the idea of strong party control. They went to our State legislature and got a law passed which called for a "top-two" primary, where voters chose whoever they wanted and the top two vote getters (regardless of party affiliation) would go onto the general election. The law also contained provisions for a close primary should, I don't know, the governor veto the top-two provisions... which he did.

Not to be deterred, the Grange then launched an initiative to reinstate the top-two system. I-872 received nearly 60% of the vote but was quickly enjoined by the State political parties. The law never went into effect.

Let us pause for a moment and consider the situation. For decades the political parties have operated with the blanket primary without any demonstrable issues. As an added bonus, Washington state politics has never been dominated by partisan corruption, since you can actually get to the general election without the support of the party establishment. The Washington State legislature passed laws reinforcing partisan-independence and voters did the same. Clearly the State of Washington isn't interested in partisan politics corrupting a good thing. So why, why, are the parties pushing this thing? Can't they see what's around the corner?

Well, apparently not, because last year the got the law ruled unconstitutional by a district judge and just this week the 9th Circuit Court of Appeals concured. For those who remember the title of this post, consider that fateful decision to be the first nuclear weapon launch.

Now for the return salvo. The Grange is mulling over three options. The first two are to go back to the courts and try to win on rehearing or appeal to the U.S. Supreme Court. The courts seem inclined to protect partisan interests over the state's interest, so that seems like a losing approach, which is why the third option is the most likely option. According to the Seattle Times the Grange will lobby the State Legislature this year to declare our primaries entirely non-partisan!

Under the old system the parties at least had an affiliation with the candidate, but with this approach the parties are simply irrelevant. Personally, I would support such a move. I preferred the old system, which was a good balance between the state's interest and the parties' interests. But, since the parties felt compelled to go to the courts and have a winner declared in the long stalemate, the state is left with no choice. You push someone against a wall and they will push back.

If they continue to push, I wouldn't be surprised if the legislature itself was declared non-partisan like the judiciary and most city councils. It's time for the parties to wise up... I don't know what kind of people are running those organizations, but this isn't the East Coast and we aren't interested in political bosses running things from smoke-filled rooms.

Why couldn't they just live with the compromise that had worked for so long?

The Big Move

A new record in blog silence! One month, seven days. Exciting, I know. But it's time to figure out what I'm doing with this blog now that I'm all graduated. First, some housekeeping chores for any of you who actually read this blog for news about me.

1. took the California Bar in late July (passage status unknown)
2. participated in roommate's wedding as Best Man (speech went over well)
3. found an apartment in Santa Cruz (it is both tiny and expensive)
4. took the Multistate Professional Responsibility Exam (passage status also unknown)
5. friends all had a big going away dinner on Saturday at Icon Grill (food was fantastic)
6. throwing an event tomorrow to see folks one last time (evite title: Sean's Fleeing the Jurisdiction)
   
7. in the process of preparing and releasing a version 3.3 of LegSim (codename: Hastert)
   
8. packing and leaving for Santa Cruz on the 30th of this month (yes, eight days)

So, there you have it. Big news to be sure.

Now, let's have a quick chat about this blog. I've always enjoyed blogging... I've been doing it in some form or another since 1999. Way before the cool kids did it. It's mostly been on personal subject matter or various adventures like traveling to Washington D.C. Now that my crazy college day antics are over, I'm left with just a couple of possible topics.

• I could post about personal matters, like rants about friends, family or significant others. But, I don't think that's very fair to those people and isn't a really healthy way to handle those sorts of issues. Best to talk to them directly.
• I could post about professional matters, like what I'm doing at work. This is a fine idea if I was just sticking with LegSim, but since I'm 99% sure to get a job working for either a law firm (thus under confidentiality rules) or a technology company (thus under an NDA), I would be rather limited in my subject matter.
• I could post about political matters, which has always been my mainstay topic. I like politics and I enjoy sharing my views. Trouble with blogs is that they record views for long term inspection... I've said some pretty crazy things in my reckless youth. Do I really want all of that up for critique in 30 years?
• I could post about nonsense, which seems to comprise about 95% of blogs in the world and roughly 99% of the content on my friend's blogs. To be honest, I don't even known what I would talk about that is nonsensical... somehow the discover that Target underwear comes in a resealable bag doesn't strike me as ProBonoGeek subject material (if you are interested in such topics, drop me a line 'cause I have the blog for you).

So, there is my conundrum. If anyone is out there still reading this blog (and I doubt it) drop me a comment on what you think I should do. Is it time to give up the ghost and start journaling in private? Do I run the risk of political self-sabotage? Got an opinion, now is the time to speak.

Moral Crises in the Professional Sector

The Washington Post is running a good intro piece on one of the critical issues of our day: to what extent does a professionals' personal beliefs control the provision of services?

The issues listed in the article fall along the usual fault lines: abortion, birth control, euthanasia, artificial insemination. The list goes on and on. One fellow, John C. Green of the Pew Forum on Religion & Public Life, said all the issues are "collision[s] between a religiously inspired view of life and state regulation." Now, that seems like an interesting comment. Yes, on one side is a "religiously inspried view of life," I agree, but government regulation on the other? Seems to me the request of a gay women to be artificially inseminated or a women's request for birth control are anything but government regulation... that's just people being people, no government needed.

What I don't understand is how these professionals like doctors, pharmacists, whatever, can get away with behavior that no lawyer can get away with? As a lawyer (okay, soon to be lawyer) I know that when I hold myself at as a licensed lawyer it comes with certain obligations. One of those obligations is that once I take a client I am bound to that client with all of his various eccentricities. Client wants to do something I would never consider, like suing little kids for tresspass, then you file the suit.

If you don't like the behavior you can object, sure, but you can only withdraw if doing so will not materially impact the client's legal position. If you're in the middle of a case and suddenly the client wants to do something really crazy, so long as it's not illegal, you have to do it. And you have to do it because, one, you held yourself out to the public as a professional, two, you were hired to do a job as a professional.

So, let's apply that standard to other professions. Sure, a pharmacist who objects to giving birth control can refuse to do so, since it should be reasonably easy to find another provider before the client is materially injured. (cf town with one pharmacists. Same problem for lawyers though, wonder how conflicts are handled?) But, if a rape victim shows up and asks for the morning-after pill, you had better damn well provide that pill. You hold yourself out as a professional, you are obligated to provide the service. If you aren't gonna do it, then you need to find another business.

This isn't car repair people. Professionals go through a lot of schooling, are licensed by the state, and owe special obligations to the population in return for the right to practice. It's time we start taking those obligations seriously and remember our place in society... helping others.