Supreme Court Docket Watch

The decision to grant or deny Supreme Court review has been made in two important cases, one involving the Washington State primary and the other involving criminal sentencing. I've blogged about the Washington State primary system before, my belief that the state parties are shooting themselves in the foot, and that the courts holdings so far have been rather inflexible given the political nature of the question.

Well, now we are going to get the Supreme Court's opinion on whether the top-two system is constitutional or not. Louisiana has been using the system for years, so they better be on the lookout... remember, it was California, who adopted Washington's previous system, that went to the Supreme Court last time. If Washington loses like California lost, a national precedent will have been set.

Legal mumbo-jumbo aside, I have to wonder what the courts are doing with all of this? If the blanket primary is unconstitutional, and the top-two is unconstitutional, it begins to seem as if the Constitution has a preferred sort of primary, even though the constitution makes no mention of a primary and the founders, through Federalist 10, make clear that factions--only possible through primaries--are to be avoided. Personally, I found the District Court and 9th Circuit court opinions on the top-two system to be less than convincing. Their holding boils down to relying on the earlier blanket primary holding in California Democratic Party vs. Jones, concluding that anything which diminishes a political party's right to "speak" by selecting a candidate is unconstitutional.

Given that free speech is generally a balancing test, I don't think the courts really gave the question the appropriate scrutiny it deserves. The whole idea behind the top-two system is to say the parties don't get to decide who appears on the general ballot. They can use whatever system they want to pick who gets to use the party political apparatus, but such authority does not extend to deciding who gets to run for office. Put another way, it's not limiting the party's right to speak, it's saying the state isn't going to listen.

The other case, involving a 200 year sentence for a man found with 20 pictures of child pornography on this computer, was denied review. The case sought to question whether such a long sentences (10 years for each photo), served consecutively (instead of concurrently, as most jurisdictions would do) violated the ban against cruel and unusual punishment. The state court review only asked whether the 10 years per photo was fair, and having decided in the affirmative, it did not question the state's decision to apply the sentence consecutively.

What's interesting about this case to me is the quote in the article from a Professor Berman.

For a host of good reasons, the justices think they have a role in regulating extreme corporate punishment, but I fear the court doesn’t embrace a role in regulating extreme individual punishment.

He is referring to the court's decisions limiting punitive damages, such as the rough guideline that the punitive should never be more than nine times the actual damages.

For me, the critical distinction here revolves around state decision making. In the case of punitive damages, the decisions are made by juries within the context of judge made common law. Which gives the Supreme Court a critical role in forming, and revising, those precedents. The criminal punishment, on the other hand, is not by common law. Because of the due process clause of the Constitution (5th or 14th Amendment, take your pick), all crimes, and their punishments, must be the product of the legislature. Which means Arizona's decision to impose consecutive terms, instead of concurrent terms, was made by the state legislature. If the result is seen as excessive, then the political process is the proper route for change.

Thinking About the British Withdrawl

The big news the past two days is that the British are withdrawing forcing from Iraq. There has been a lot of political back-and-forth about this development, with the White House calling it a "good-news story" and the anti-war movement asking why the British get to leave and the Americans don't. Obviously this is all very complicated, but I want to focus on a particular quote out of the Washington Post.

Tony Snow, White House Press Secretary, is quoted as saying

The fact that they have made some progress on the ground is going to enable them to move some of the forces out, and that's ultimately the kind of thing that we want to be able to see throughout Iraq.

The paragraph right before the quote, which is not sourced, reads

The White House argued that comparing the British situation in Basra and the U.S. position in Baghdad fundamentally distorts reality. The south, where the British have been in charge, has no Sunni insurgency and far less violence than Baghdad or Anbar.

Anyone else find that very interesting?

Why is the one populated area where the British forces are most concentrated the one populated area where there is "no insurgency and far less violence?" Strikes me as there are two critical differences between the areas: the occupier and the occupied. But do we really think there is some great difference between the Iraqis in Baghdad and the Iraqis in Basra? Or, could it be that the demoralizing events of Abu Ghraib and the slow response to the evolving situation by the American military leadership have engendered such ill-will towards the U.S. that our troops are simply incapable of being effective in the way the British troops have been?

I am reading a book on Iraq right now, and I'm learning a lot of interesting things about the situation... but at the moment I am far from an expert. But the one thing that bother me vary much are claims from the right about how we must stay in Iraq in order to win the fight... but what if it's not possible to win the fight? What if the window where all the troop increases in the world has already passed? To use a poker analogy, you don't stay in the game when all your holding is pocket 4s and the flop came down all face cards. Sure, you can try and bluff your way out... but this is international warfare against a player with nothing to lose. It's true, if you fold you cannot win... but this is not the ideal time to be bluffing.

Earthquake!

About four minutes ago I felt a very unnatural shaking in the apartment. At first I thought nothing of it, but then decided to see if there was a place where earthquake data was easily available.

Lo and behold: USGS Earthquake Hazards Program

They don't know the magnitude yet, and it hasn't been reviewed by a seismologist, but I can certainly vouch that it happened.

Nothing big, didn't even rattle the pictures on the wall, but it's vary cool to see how fast this information is available.

Update

The USGS now reports it was a 3.0 magnitude quake and about 15 miles north of my current location.

Art Update

I put a little tag by Santa Cruz, in case you didn't know where it was located

Sneaky Rules of the Senate

On Friday Democrats in the House of Representatives flexed their new majority muscle to pass a non-binding resolution opposing the surge/escalation in Iraq. The resolution was brief, to the point, and palatable enough to garner the support of 17 Republicans on top of all but two Democrats.

So impressed by the resolution, Senate Majority Leader Harry Reid scheduled a rare Saturday vote on identical language (as opposed to the 14 page whopper they had tried to adopt the week before). It was my thinking that this was a pretty clever move on the Majority Leader's part. To end the Republican filibuster Reid needed a 3/5ths majority and I figured the Saturday vote would mean fewer Republicans and thus a lower absolute vote total.

Indeed, when the vote was taken it came to 56-34--nine Republicans absent and Democratic Sen. Johnson of South Dakota still recovering from brain surgery. Now 56 plus 34 is 90, and 56 is 3/5ths of 90... so why was the Washington Post story reporting the filibuster had held?

Because Senate Rule 22 says so, that's why. The threshold is not based on the number of votes cast as it is with nearly all other votes in both the House and Senate. Rather, it is based on the number of Senators "duly chosen and sworn." Which means if there are 100 seated Senators, you need 60 affirmative votes to end a filibuster. Just as importantly, a "present" or "absent" vote is equivalent to a no vote. The only reason the minority even bother to vote, as far as I can see, is to avoid accusations of laziness back home.

In the end, Reid ends up looking like the fool. Democratic presidential candidates had to leave the campaign trail to go in for the vote, Republicans were allow out to play, and the Republicans continue to prevent a Senate resolution on Iraq. But don't think this fight is over... there is a mighty big appropriations bill working its way down the pike, and I think Rep. Murtha is going to have a few things to say about it.

They Knew it Was Going to Be Easy

News from the hacker community... the digital rights management (DRM) technology that protects HD-DVD and Blu-Ray high definition video discs has been broken. That's really not news as it was an inevitability.

The Slashdot commentary on this was interesting and pointed out something I hadn't thought of before. I will refrain from quoting the whole comment and instead paraphrase: it is impossible to secure a message when the recipient and the attacker are the same person. And now you are asking, what does that mean?

Okay, quick cryptography lesson from someone who only understands the basic. Assume two people (Bob and Alice) who want to send communication between eachother privately. In order for this communication to occur they must use one of several encryption methodologies. In general, this is done by both Bob and Alice knowing a "secret" and using that secret to encrypt and decrypt the message. Now, a third person (Charles) wants to listen in, but can't because he doesn't know the secret. Works pretty well, for the most part.

Now with DRM, the paradigm is different. Alice (played by the record label or movie studio) wants to send a message to Bob (played by you and I) that he can only listen/watch in certain circumstances. But Bob also wants to watch his DVD in a non-authorized fashion (say, with a Linux box)... which means Bob has a dual identity. He is both Bob and Charles. Any secret Bob knows, Charles knows... and now the gig is up. It may be that Bob doesn't know what the secret is, exactly, that he knows, but it is only a matter of time before smart people figure it out. That's what happened with DVDs several years ago, and that's what happened with the next generation systems.

But this is not what I want to talk about. The title of this post is "They Knew it Was Going to Be Easy" because the makers of DRM knew everything I just said above. They are not, contrary to the opining of the Slashdot crowd, stupid. In fact, they knew this so well that they got a law passed to criminalize the activity... a little something known as the Digital Millennium Copyright Act. §1201(A) reads:

No person shall circumvent a technological measure that effectively controls access to a work protected under this title

Which makes the breaking of DRM a against the law... even if the DRM is really stupid.

So yes, it is easy... but so is bopping someone on the nose. Doesn't take anything more than one of my fists and decent aim. Which is why we pass laws in the first place, to create artificial incentives which conform behavior in a particular manner as established by the legislative process (I love this link!). The media companies said they wanted to keep pirates from breaking into their stuff, they recognized it couldn't be done with technology alone, so they appealed to the legislature and got the needed protection.

Which is to say... they knew it was going to be easy.

The Political Mechanics of Troop Funding

I thought I would share a small observation regarding the debate over troop funding with regards to the Iraq war. A lot has been said over whether the Congress should exercise its authority over the "purse" to bring the troops home, with every presidential candidate or wannabe making some sort of statement. Pretty much every politician is against it, and maybe for good reason... such a vote could easily be portrayed as abandoning the troops.

But that's not what this post is about, this post is about the mechanics of such a vote. First stop is the Constitution, Article I, Section 8 which lists off the Enumerated Powers of Congress. Among them is the following.

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

Which is very significant.

For the most part the Federal Government is funded on an annual basis through a set of 13 appropriations bills. The government ceases to function without those bills, such as the infamous government shutdown when the House Republicans and President Clinton could not agree on a budget. Now, if a hypothetical Congress truly wanted to write a hypothetical President a blank check for a war, they could just appropriate a hundred billion, gazillion dollars to be spent over the next 100 years and be done with it... but thanks to the clause quoted above, they are Constitutionally barred from doing so. They must affirmatively vote to fund the war a least once every two years.

Which brings us back to Iraq. There will be a new Defense Appropriation bill this year (and thanks to the Iraq Study Group Report, that bill will include the cost of the war, instead of a separate emergency appropriations bill of the past few years). Without this bill the war ends... period, end of story.

I remember an interview committee I once was part of where we reviewed perspective candidates for a lobbying position. The outgoing lobbyist asked one of the candidates, "what's the easiest thing to do in the legislature?" to which the candidate correctly responded: kill a bill.

See, there is only one way to pass a bill through Congress, but there are about a thousand ways to not pass it. And here's a kicker... even if the Senate, its ranks bursting with presidential contenders, votes to fund the war, the House can refuse to do so, and that's the ball game. Even a single Senator can filibuster (absent a Budget Resolution) the entire war if he wanted to; requiring a full 60 Senators to vote to fund the war.

Here's the last critical bit on mechanics. A failure to act is not subject to the presidential veto. He can yell and scream all he wants, but the President lacks the Constitutional authority to compell legislative action. He can't even dismiss the legislature and call new elections, which is a power generally held by most other executive figures in the world.

In the end of the day, the United States Congress really does hold all the cards.

Smart Words from the Chairman of the Joint Chiefs

Buried in a story about the shift of 7 GOP Senators to now back the war resolution debate in the Washington Post, having earlier voted to block the debate, is this gem of a quote. I reproduce it without alteration from the Post's article.

A top Pentagon leader weighed in yesterday on the war debate and appeared to undercut the argument advanced by the White House and many GOP lawmakers that a congressional debate challenging the Bush plan would hurt troop morale.

"There's no doubt in my mind that the dialogue here in Washington strengthens our democracy. Period," Marine Gen. Peter Pace, chairman of the Joint Chiefs of Staff, testified before the House Armed Services Committee. He added that potential enemies may take some comfort from the rancor but said they "don't have a clue how democracy works."

Fantastic! I really couldn't have said it better myself, and I hope the Bush Administration was listening. It is our debate, and even our dissent, which makes us strong. If our enemies take this as a sign of weakness, they do so at their peril.

Copyrights in the News

I've got three different copyright stories, all within a 24 hour period. Clearly the world is beginning to take notice.

First up, the "creator" of the Electric Slide has issued a DMCA take down notice to YouTube for videos where the Electric Slide is being performed incorrectly. First, to silence all of those "the DMCA goes to far" folks (of which I am, arguably, one of... but not in this case), the DMCA is only involved here because YouTube has a chance to avoid contributory liability by taking down the material. The original poster of the material can then serve notice to YouTube that the material is not infringing, at which point YouTube must repost it. Then, YouTube having done its part, it's up to the two parties to resolve the issue. The real issue here is one of basic copyright law.

Which presents an interesting question: can dance moves be copyrighted? The expert from the CNet article (Jason Schultz of the EFF) seems to pass this question off as if it's a no-brainer. Just like a song, performing it without permission is a violation of the §106 of the Copyright Act. But I'm not convinced. To perform a dance I must follow a series of steps, also known as instructions. A series of instructions is generally referred to as a process... and processes, as a rule, are not copyrightable. They are not copyrightable because in this country we protect processes through the patent system. It's very easy to state the rule: "patent ideas, copyright expression." I could make the case that dance steps could be either, but by law it cannot be both.

That's not even the most interesting question... see, the videos he wants taken down show the dance performed incorrectly. Which means that if it were patented, he would have no action (except, maybe, for this thing called the Doctrine of Equivalents, and I don't want to talk about that). On the copyright front, there is no literal copying, so you get into a whole fair use thing. Not to mention, if the rights holder is saying "I grant a license to people to dance this correctly," is there an implied license to dance it incorrectly?!

Next story, from the Washington Post, the GW Hatchet ran a story a few days ago which was picked up by the local TV station. Who in turn did not bother to credit the paper. They argue the idea of the story cannot be protected, thus they have no responsibility to attribute, much less seek permission. But, the Post reports the story used direct quotes from the college paper... that is copyright infringement. But putting that aside, I think the legal obsession with copyright has gone too far. It's not a question of whether the paper is bound by law to attribute, but whether it was the right thing to do.

Lastly, Mikhail Gorbachev is appealing to Bill Gates to drop a criminal suit against a Russian school headmaster who is accused of using unlicensed copies of Windows in the school. Apparently former heads of state don't have a lot to do these days. But it raises two interesting points. First, why are we talking criminal charges? Who was harmed in a way that requires punishment beyond restitution? Make the school pay, remove the software, whatever... but jail? Second, Microsoft is in a great position now to push out a marketing and political win. It agrees to give the school the pirated software, free of charge, and lets the guy off the hook. Now you've got another school district locked into the Microsoft hegemony and they get to make nice with the Nobel Peace Prize winner. What I don't understand is why this issue is on Gorbachev's radar. Is this the beginning of a larger campaign for my humane copyright laws?

Don't Believe Everything you Read About Security

Washington Post has a Q&A up that asks "When I log into my Internet provider's Web-mail page, I don't see the usual lock icon. Isn't it dangerous to send a password over the Internet without encryption?" And proceeds to tell people to fear sites which don't employ the little lock.

It's true, sending passwords over the public lines in clear text is asking for trouble. But that doesn't mean that the little lock is the only way to do it. In fact, that little lock costs a lot of money for websites to purchase (and repurchase, on an annual basis). But there are alternatives that are just as good. LegSim uses such a system, relying on basic cryptography and some intelligence. Just because a site doesn't chose to buy into the SSL certificate racket doesn't mean it can't be trusted.

What I Miss About College

Learning and student government were great, but what I really enjoyed about college was the collection of brilliant people who, when they put their mind to it, were capable of nearly anything. Here's a great example played out at Dartmouth.

The first 45 seconds of this are a little odd... just keep watching.

Leadership Under Fire

Big news coming out of the ASUW Student Senate these past weeks, resulting in numerous phone calls from people I haven't heard from in some time. It was nice to talk to people, it wasn't so nice to hear about the destructive path the ASUW seems to be on this year. I'll withhold my commentary on some of these topics until after this Tuesday's vote, but I did want to share some initial thoughts on a Daily article run this Friday.

Seems the UW Libertarian's have decided to pull out of Senate after a vote to extend the conduct code off campus. I happen to agree with the Libertarian's stance on this issue, although not to the extent of leaving the Senate. But in leaving the organization they chose to not just attack the vote, but the Senate itself. The Daily has the store with quotes. The following is a comment I posted to the story.

The Libertarians ought to look back into the ASUW history before it demands "a more democratic and less bureaucratic system." Before the rise of the Senate, the only body capable of making decisions like these was the Board of Directors, a group of students chosen in a single election dominated by popularity contests, an annual battle between the students from greek row, the residence halls, and the ECC. Once elected the students sat in their offices, indifferent to student groups or interests not aligned with their own.

The changes to the Senate over the past five years have strengthened the institution, creating a more democratic forum. One not determined by a single high stakes election, rather, based on organizations of students who take the time to represent their individual and diverse constituencies.

As for bureaucracy… I suggest we consider the alternative. Bureaucracy is how we make things fair. Rules and regulations design to keep power in check. It is these rules that now have the Chair and Vice Chair under a microscope, and it is these rules which shows how the Libertarian Senator had abandoned his responsibilities through poor attendance. The alternative, a Senate without rules, would produce yet another unaccountable political body… and the ASUW already has one of those.

Leaving the Senate is a powerful message, and I certainly understand the Libertarians’ decision to do so based on the Student Conduct Code vote… but taking a sideswipe at the institution itself, just because you lost a political fight, is like burning down the restaurant because you didn’t like the food.