Going Down Fighting

Some times political incumbents lose. Admittedly it doesnt happen often. When it does happen though you generally get a good picture ahead of time. The best evidence is Blanche Lincoln of Arkansas. She is, in all likelihood, going to lose. What then is she supposed to do on big votes like health care insurance reform? Her actions represent a general failing on behalf of losing politicians to do the right thing.

Lincoln is especially important in the mad house that is the senate. It now takes 60 votes for anything to move forward due to GOP threatened filibuster. If she was solidly committed to not supporting any GOP filibuster then maybe the GOP wouldnt threaten them as often. Thats a different topic though. The main point is that instead of doing whats right and letting the chips fall where they may Lincoln is running scared. From TPM,

As a rule, Sen. Blanche Lincoln (D-AR) may not be as ideological as Nelson is. But she's got a problem on her hands right now that Nelson doesn't. She's an unpopular senator in a conservative state and she's up for re-election next year. Unlike Nelson (or Joe Lieberman, who we'll get to momentarily) securing Lincoln's procedural vote is a nuts-and-bolts political problem. How do you get her into a position where she (and the Democratic party) feels her seat isn't particularly imperiled by votes for health care reform. Last week, she met with both Reid and President Obama. Those conversations will surely continue.

The problem is that her seat is in major trouble no matter what she does. Her seat is not in trouble because of health care reform it is in trouble because Arkansas is a very conservative state full of Republicans and right leaning indy's. Her seat is also in trouble because the voters most likely to vote for her are not particularly impressed. PPP tells all,

Among all Democrats her approval is a relatively weak 62%. But among conservative Democrats it's just 45%. While liberal unrest about her actions in Washington has perhaps received more attention her approval with them is 24 points higher, at 69%. Matched against the Republicans Lincoln averages just a 57-25 advantage with the conservative wing of her party, a standing she'll probably need to improve on before next November.

Although the dissatisfaction of liberals within her party may not be as a big of a numerical concern for Lincoln as the conservatives, there are some issues there as well. Her approval rating among voters who think that Obama is doing a good job is just 63% with 21% disapproving and 16% unsure. That failure to win over many of Obama's proponents is an indication that the President's unpopularity in the state can't be held completely responsible for Lincoln's difficulties. She does nevertheless win nearly 80% in the head to heads with the Republicans because she's clearly a more acceptable choice for those voters than the alternative but then the concern in an off year election becomes whether those folks even show up if they're not enthusiastic about casting a vote for Lincoln.

If Lincoln has perhaps seemed indecisive at times you can see why when she has it coming at her from both ends of her party.

You know what does poll well? The Public Option. in that poll we find that

73% of all voters think that private health insurance companies care more about profit than about the health of the patients that they cover. Among Democrats and Independents, that number skyrockets to 86% and 72% respectively.

You know what that sounds like? A winning issue. It sounds like something Senator Lincoln would like to use again and again as she champions health care reform. Yet she has stayed on the fence and concerned that her vote may cost her her job. Yet, isnt reforming health care the right thing to do. Is this something that might actually be worth doing if your going to lose? Yglesis adds,

But perhaps the most convincing thing you could say would be the argument from legacy. A lot of members of congress spent 1993 and ‘94 spiking the Clinton legislative agenda and then went down to defeat in November 1994 anyway. Wouldn’t it make more sense to turn the 111th Congress into a substantive success, hope you can persuade the voters that these are good ideas, and if you fail at least manage to have gone down fighting accomplishing something important?

Its the Deeds derangement syndrome. running away from substantive and good policy out of mistaken belief that people want nothing, i.e. conservatives policy, done. This isnt the case. The polling makes clear that voters find Lincoln ineffective. The point of holding public office is to put in to practice good policy. if your not going to do that what does it matter whether your in the seat or not? If you think your going to lose go down fighting and not dithering.

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Secret Intellectual Property Treaty is Very Bad

You probably are not aware of the intellectual property treaty being negotiated in Seoul South Korea. Its called the Anti-Counterfeiting Trade Agreement. The reason that you may not have heard of it is that its supposed to be secret. Why? National Security concerns of course. Thats right, a treaty that affects millions is being negotiated in secret apparently without the input of views that might be hostile to the draconian enforcement of copyright law.

Im not an IP lawyer nor a computer science expert but there are a number of issues that bother me about this. A few of the leaked provisions,

1. Baseline obligations inspired by Article 41 of the TRIPs which focuses on the enforcement of intellectual property.

2. A requirement to establish third-party liability for copyright infringement.

3. Restrictions on limitations to 3rd party liability (ie. limited safe harbour rules for ISPs). For example, in order for ISPs to qualify for a safe harbour, they would be required establish policies to deter unauthorized storage and transmission of IP infringing content. Provisions are modeled under the U.S.-Korea Free Trade Agreement, namely Article 18.10.30. They include policies to terminate subscribers in appropriate circumstances. Notice-and-takedown, which is not currently the law in Canada nor a requirement under WIPO, would also be an ACTA requirement.

4. Anti-circumvention legislation that establishes a WIPO+ model by adopting both the WIPO Internet Treaties and the language currently found in U.S. free trade agreements that go beyond the WIPO treaty requirements. For example, the U.S.-South Korea free trade agreement specifies the permitted exceptions to anti-circumvention rules. These follow the DMCA model (reverse engineering, computer testing, privacy, etc.) and do not include a fair use/fair dealing exception. Moreover, the free trade agreement clauses also include a requirement to ban the distribution of circumvention devices. The current draft does not include any obligation to ensure interoperability of DRM.

5. Rights Management provisions, also modeled on U.S. free trade treaty language.

The general response among consumer protection and fair use supporters has been very critical. The main concerns are the adoption of a three strikes and your out policy recently adopted in france. The core of the policy is a law that requires ISPs to disconnect whole households if one member is accused -- without evidence or trial -- of three copyright infringements. Accused. You and your whole family may lose the Internet with out substantive review.

Let's reflect on what this means: First, the US government appears to be pushing for Three Strikes to be part of the new global IP enforcement regime which ACTA is intended to create – despite the fact that it has been categorically rejected by the European Parliament and by national policymakers in several ACTA negotiating countries, and has never been proposed by US legislators.

Second, US negotiators are seeking policies that will harm the US technology industry and citizens across the globe. Three Strikes/ Graduated Response is the top priority of the entertainment industry. The content industry has sought this since the European office of the Motion Picture Association began touting Three Strikes as ISP "best practice" in 2005. Indeed, the MPAA and the RIAA expressly asked for ACTA to include obligations on ISPs to adopt Three Strikes policies in their 2008 submissions to the USTR. The USTR apparently listened and agreed, disregarding the concerns raised by both the US's major technology and telecom companies and industry associations (who dwarf the US entertainment industry), and public interest groups and libraries.

How does this fit with the oft-repeated statement of the USTR that ACTA will not change US law, which justified the decision to negotiate ACTA as an Executive Agreement outside of regular US Congressional oversight measures? That remains to be seen.

In addition, there is a removal of the ISP's immunity from liability for the alleged copyright violations that occur over their pipelines if they fail to follow through on the disconnects. Meaning that your not going to get much a chance because the isps wont want to risk the litigation, especially since the potential damages might be more than the value of U.S. GDP.

What has been leaked is the MPAA and RIAA dream bill that stands in contradiction to current U.S. and E.U. law. Under the leaked regeme the ISPs would also have to adopt the notice and take down approach that is used to censor legitimate fair use on sites like you tube and flickr. The shepard fairey poster of obama with hope under it would have to be taken down from wherever it was posted online as the AP would surely allege that it is an infringer.

One of the huge issues here is that the secrecy makes it impossible to lobby or even know exactly what the bill contains. The reason for this secrecy,

According to IDG, the leaked European Commission memo also states that the US Internet chapter is "sensitive due to the different points of view regarding the internet chapter both within the Administration, with Congress and among stakeholders (content providers on one side, supporters of Internet freedom on the other)."

Cmon Obama, end the secrecy. If the doomsday reports of the treaty's contents arent true the public should know. if they are true they should know this too. These represent major changes in U.S. law and the public isnt getting any input here as this is being negotiated under an executive agreement signed by president obama. There isnt a more important issue in IP and copy right.

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Obama Coming Up Short on Civil Liberties

Is he delivering or not? That seems to be a dividing line right now among democrats and liberals. Is President Obama delivering on the change promised during the campaign? The answer to that depends in part on what you thought he meant by change. Other contributing factors to your view probably include the time frame he has had to operate in, the conditions of the media, the general lameness of the senate, and your own level of idealism versus pragmatism. For instance, i am not going to be satisfied with the end result of HCR, im not going to get the same choice members of congress get. democrats should stop saying that i will. Of course i really didnt have expectations that i would so i dont take that too hard. Civil Liberties on the other hand, i was really expecting better.

A diary currently on the rec list includes this,

President Obama's second core campaign promise was to make government more transparent and accountable, to rebuild a sacred trust that had been seriously eroded. And he has delivered. He closed the revolving door, forbidding anyone who works in his administration from lobbying when they leave their jobs. For the first time in history, names of visitors to the White House will be released, so every American can see which interests and individuals are visiting their government. And the groundbreaking website recovery.gov is allowing Americans to trace every dollar spent and every job created or saved from the recovery act, adding a level of transparency never before seen.

I think that this overstates the magnitude of the actions. I am however willing to grant that he has done some things to increase transparency in some areas. However our capital is generally the color of tar on a whole host of issues including the tarp money and many of the fed's practices. Let's not pretend that everything in washington is exposed to sunlight at this point. Lobbying still exists. Shady back room deals still happen. Beyond this stuff though i feel like part of this campaign promise of openness and sunlight was a reformed legal policy dealing with civil liberties.

There are several key aspects of civil liberties policy that i understood from candidate obama were going to be addressed. I dont think they are disputable. The first is the closure of Gitmo. Next is the end of the military commissions for trying terror suspects. Finally, the end of the extreme use of the state secrets privilege to toss out uncomfortable lawsuits that resulted from Bush Era abuses.

None of those things are happening nor do they look to happening any time soon. There seems to be some movement on DADT which is a policy that candidate Obama was in favor of repealing. It gets talked about without any action. The repeal of that program would most likely buy Obama more credit with those critical of him. Part of the problem is that he really doesnt have a great starting deposit. Almost immediately, he started off badly with the state secrets issue and the military commissions.

In early February, he had an opportunity to back up campaign rhetoric and make a break with Bush on state secrets.

Obama Administration Maintains Bush Position on 'Extraordinary Rendition' Lawsuit

The Obama Administration today announced that it would keep the same position as the Bush Administration in the lawsuit Mohamed et al v Jeppesen Dataplan, Inc.

A source inside of the Ninth U.S. District Court tells ABC News that a representative of the Justice Department stood up to say that its position hasn't changed, that new administration stands behind arguments that previous administration made, with no ambiguity at all. The DOJ lawyer said the entire subject matter remains a state secret.

This is not going to please civil libertarians and human rights activists who had hoped the Obama administration would allow the lawsuit to proceed.

It hasnt improved with time either,

Attorney General Eric Holder says a lawsuit in San Francisco over warrantless wiretapping threatens to expose ongoing intelligence work and must be thrown out.

In making the argument, the Obama administration agreed with the Bush administration's position on the case but insists it came to the decision differently. A civil liberties group criticized the move Friday as a retreat from promises President Barack Obama made as a candidate.

Holder's effort to stop the lawsuit marks the first time the administration has tried to invoke the state secrets privilege under a new policy it launched last month designed to make such a legal argument more difficult.

In addition the administration took a hard line on the media shield law demanding that the national security arguments be removed from the balancing test used to determine if compulsion of sources is required.

President Obama has also declined to eliminate the military commission as an available forum for the trial of accused terror suspects.

Looking at the steps he has taken, the tinkering made, and the lack of action im not happy. I dont think president Obama is doing a good job here and i do not believe he is delivering on the change he offered in the campaign. I understand he has only had nine months but these are actions taken in the wrong direction not simple inaction. There is no argument that the President has lacked opportunity he has simply not delivered.

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Media Shield Law on the Horizon

The NYT is reporting on the development of the media shield law designed to protect reporters from disclosing their sources. The law is required in order to give cover to sources who provide information vital to the public knowledge. The type of law that the NYT is reporting on seems like it might be sufficient protection but much hangs on any potential litigation in the court system.

As reported by the Times,

Under the deal, made public Friday, federal judges could quash subpoenas demanding testimony or information from reporters if the judges determined that the public interest in news gathering outweighed the need to uncover the source of a leak, including, in some circumstances, unauthorized disclosure of classified government information.

Protection under the so-called shield law would also be extended to unpaid bloggers engaged in gathering and disseminating news.

A version of shield legislation was approved by the House in March. But a similar bill has stalled in the Senate, and its prospects appeared to dim significantly in September when the administration, responding to apprehension expressed by intelligence agencies and prosecutors, took a harder line with regard to cases in which the government could claim national security concerns.

With the new agreement, however, the White House has now moderated that position.

The text of the bill is here in pdf.

As they say the devil is in the details. The determination of when a source is protected and when it isnt is made in the courts under a balancing test of public need to know versus need to keep secret. The Senate version of the legislation categorizes three different balancing tests for courts to use in deciding when disclosure is required. There are different considerations for civil, criminal, and national security cases.

In a standard criminal cases the standard required for production of a source is that a preponderance of the evidence shows that the compelling party has exhausted reasonable alternatives and that the source is "critical to the investigation or prosecution or to the defense against the prosecution". the washington post stated that,

In criminal cases, the compromise puts the burden on the journalist to establish in court why the public interest would be harmed by the disclosure of a source or sources. The government or defense attorney would need to show only that the information sought is essential to the case.

This is not quite true. My reading of the law is that the burden is always on the compelling party. They must show that the compulsion of the source for the prosecution of the case outweighs any interest in keeping the source under wraps. there is not a burden shift. It is possible that the way the proposed law will play out in criminal circumstances is that there will be a standing presumption in the courts that the prosecution interest outweighs the interest in keeping it secret but the law as proposed doesnt contain that presumption. In fact it could be argued that the law itself represents the idea that the presumption is against disclosure. In assessing this language the NYT said,

Ordinary criminal cases, as in prosecutors’ effort to find out who leaked grand jury information about professional athletes’ steroid use to The San Francisco Chronicle, would work the same way, except that the balancing test would be heavily tilted in favor of prosecutors. For a judge to quash a subpoena, the burden would be on a reporter to make it “clear and convincing” that the public interest in the free flow of information should prevail.

The language of the law as is available does not use the words clear and convincing in regards to the disclosure and balancing test for journalists. i am not sure where they got this idea as they dont link to available source of text. As currently available the only standard used in regards to disclosure is preponderance. To compel a source the case must be made that the public interest in gathering or disseminating news or information is outweighed by the need for disclosure. Disclosure must "more probably than not" outweigh that interest. It is for the compelling party to prove this. Maybe it is going to be amended to shift and ammend the burden but it hasnt yet.

On the civil side it plays out much as it does on the criminal side. all other options must be exhausted and the source must be one "critical to the successful completion of the matter" and again the disclosure interest must outweigh the secrecy interest.

That leads to the final category, national security. National security had been the sticking point as according to HuffPo,

The administration wanted to eliminate that balancing test in many cases involving terrorism and other security cases.

Under the compromise, the balancing test would be eliminated in classified leak cases where the government can show that disclosure of a source's identity is necessary to prevent or mitigate an act of terrorism or substantial harm to national security. But the government would also have to provide specific facts: it could not make a national security claim and then withhold most of the details.

This change has not yet been made in the available text. As currently drafted the text has the balancing test for national security just as the house bill has. From what i can tell this means that section 2 (a)(3)(A) will be moved outside section 2(a)and new language will be added as to the specificity required for compulsion. Right now it is only a "reasonableness" standard which is a very illusive and slippery burden. Judges would most likely side with the government on these types of cases simply because they wouldnt want a terrorist attack on their heads.

Most of the effects of this legislation will be determined by how high the courts choose to weigh the interests of non-disclosure. Because this is one of the weights in the balancing test an artificially low weight would gut the legislation and a heavy weight would prove very restrictive. Until this is litigated though the answer wont be known. According to Arlen Specter since 2001 at least 19 journalists had been subpoenaed by federal prosecutors for information about confidential sources and that four had been imprisoned for refusing to comply. What he doesnt say is whether any of them would be helped by this law.

Unless significant weight ends up on the journalists side and unless the courts actually hold the governments feet to the fire on national security claims the law could be much ado about nothing.

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Bong Water is the New Gateway Drug

How much prison time is two and a half table spoons of bong water worth? In Minnesota the answer is 86 months of prison time. Thats just over seven years of prison time for possessing some bong water. In a -ridiculous, abhorrent- decision handed down by the Minnesota Supreme Court Bong Water with traces of meth was found to be a substance that qualified as a felony drug possession charge. In essence, the finding is that bong water with meth is a drug in and of itself.

I do note that there are traces of meth in the water. that is a key fact and anyone who doesnt report it that way is oversimplifying the case. The opinion from the court is available in pdf here.

The majority presents its case a straight forward issue of statutory interpretation. They make several moves to justify their approach. They cite case law that requires them to apply a plain meaning rule and statutory language that says, a mixture is “a preparation, compound, mixture, or substance containing a controlled substance, regardless of purity.”

The majority goes out of its way state that the definition of mixture is unambiguous. This is essential to their case. By saying that the definition is straight forward they avoid any of the messiness of public policy, legislative intent, or anything else. the definitions used to determine the meaning of mixture are,

A “preparation” is a “substance, such as a medicine, prepared for a particular purpose.” The American Heritage Dictionary 1386 (4th ed. 2000). A “compound” is a “combination of two or more elements or parts.” Id. at 379. A “mixture” is “[s]omething produced by mixing.” Id. at 1128. A “substance” is “[t]hat which has mass and occupies space; matter. A material of a particular kind or constitution.” Id. at 1726.

The court went on to find that,

The bong water is a “mixture” because it is a “substance containing a controlled substance”—methamphetamine.

The majority reasons based on the premise that the bong water is a drug in and of itself. They take this as a premise because of testimony that

...the pink coloring and fruity odor of the liquid discovered in Peck‟s bong was significant. He explained that bong water is not normally colored or scented. When asked why a narcotics user would keep bong water, Rauenhorst replied, “for future use . . . either drinking it or shooting it in the veins.”

The significance of this passage is clear when the footnotes are examined (note always read the footnotes, thats where the good stuff is). In this case there is a footnote that spells out the fact that the majority thinks that this bong water is going to be used as a drug later on. Footnote one,

When viewed in a light most favorable to the State, the record demonstrates that the water containing methamphetamine stored in Peck‟s bong was colored and scented, that a button was placed over the bong opening presumably to keep out flies, and that narcotics users are known to drink or inject the unconsumed methamphetamine, which is captured by the water in the bong. The dissent states that, even under its interpretation of the statutory language, bong water may be a mixture, and not drug paraphernalia, if the evidence shows the liquid in the bong was more than a facilitator of consumption. Although we do not adopt the dissent‟s interpretation of the statutory language, when the record is viewed in a light most favorable to the State, the evidence demonstrates that the liquid in the bong was more than a facilitator of consumption.

Strictly speaking this step of justification shouldn't be necessary under the majority's reasoning. Their reasoning is that any substance with traces of a drug qualifies as a mixture. The plain meaning of the law that the majority is so fond of applying doesnt need the qualification that this is a drug. What they are trying to do is to hold off the dissent and the lower court's opinion that the bong water is only "drug paraphernalia", part of the means of getting high and thus shouldnt count under the statute.

Amazingly this type of discussion over the nature of what a mixture is for the purposes of drug crimes isnt new. Its very old. 19 years ago we can find the case Chapman v United States. That case dealt with lsd and whether the paper used to apply it should count as part of the weight. The Supreme Court at the time found it to be perfectly ok to count the weight of the delivery mechanism in the punishment. For lsd that meant that a bottle of pure lsd would get you less than a person with paper to distribute it. The dissent in that case uses an interesting comparison for an absurd result,

Thus, whether one dose of LSD is added to a glass of orange juice or to a pitcher of orange juice, it is still only one dose that has been added. But if the weight of the orange juice is to be added to the calculation, then the person who sells the single dose of LSD in a pitcher rather than in a glass will receive a substantially higher sentence. If the weight of the carrier is included in the calculation not only does it lead to huge dis- parities in sentences among LSD offenders, but also it leads to disparities when LSD sentences are compared to sen- tences for other drugs. See n. 12, supra; 908 F. 2d, at 1335.

Think about that for this case. If the bong had been bigger the sentence would have been longer. After all, the water was still in the bong when found. Using the OJ example from chapman it is clear that using the water from the bong as a means of escalating the sentence is a bad road to go down.

The dissent does a pretty good job pointing out how ridiculous this is,

The majority‟s decision to permit bong water to be used to support a first-degree felony controlled-substance charge runs counter to the legislative structure of our drug laws, does not make common sense, and borders on the absurd. The majority reaches its conclusion because it misapplies the plain-meaning rule and fails to consider the statutory language in its application to the facts at hand and in the context of the statute as a whole. The result is a decision that has the potential to undermine public confidence in our criminal justice system.

The dissent in this case uses a two pronged attack. first is the fact that the water fits under two aspects of the statutory scheme. This is why the majority needed to water to be a drug itself. if it wasnt a drug then the dissent creates ambiguity with its paraphernalia argument (incidentally the dissent does an excellent job of explaining how to use a bong). Second, the dissent looks at what the law is supposed to be doing. surprise, its designed to punish people who carry more crack.

The sponsor further explained that the Act was designed so that “[t]he more crack or cocaine that an individual possess or sells, the stiffer the penalties under the provisions of this bill.” Id.

One of the commentators at the hearings on the bill was James Kamin, Assistant Hennepin County Attorney, who explained the purpose behind the weight-based system. Kamin said that the Act “makes the penalties commensurate with the crime. That is, someone who is possessing 25 grams of crack ought to face a significantly stiffer penalty than someone possessing three or four or five grams of crack.”

Thus the goal is to punish people who have more of the drug. floating a tiny amount of a drug in an ocean of water shouldnt result in a life sentence. The majority in its zealous attempt to punish a drug user and to advance the cause of textualism, trample over the interests of justice. This is a law designed to punish dealers. clearly possessing bong water is not the same as dealing crack and yet the majority applies. The dissent illustrating why this is so stupid.

Treating bong water as a mixture capable of sustaining a first-degree felony controlled-substance charge does not meet the purposes, aims, or objectives of the legislature when it established the weight-based system. Bong water is not marketed or sold by dealers, large or small, nor is it purchased by consumers. It is not even ordinarily consumed. Bong water is usually discarded when the smoker is finished with consumption of the smoke filtered through the bong water. A person is not more dangerous, or likely to wreak more havoc, based on the amount of bong water that person possesses. The bong water is no more dangerous than the bong itself, because both are used to facilitate consumption without being consumed. Thus, there is no reason to believe the legislature intended to treat the bong water differently from the bong, and there is even less reason to believe that the legislature intended to treat bong water so seriously as to presumptively mandate a more than 7-year prison sentence for possessing two and one-half tablespoons of bong water. As stated earlier, I believe this result to be absurd and a threat to public confidence in our criminal justice system.

The dissent goes on to illustrate that this opinion means that bong water is punished more severely than 24 grams of cocaine, heroin, or methamphetamine. 24 grams of heroin is equal to approximately 60 individual doses, 24 grams of cocaine is equal to approximately 200 to over 2000 doses, and 24 grams of methamphetamine is equal to approximately 24 to 240 doses. How many doeses is two table spoons of bong water? none. people dont use bong water as a drug.

This decision is simply bad in many respects. I cant tell whether this is the result of the war on drugs run amok or textualism run amok or what. That this is a result in 2009 after all the evidence showing the drug war to be a failure and the evidence that we simply lock up too many people should embarrass the justices who were in the majority.

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