Law

You can watch it at Google Video. Everyone should be aware of the issues raised in this documentary.

La Trobe, Pennsylvania’s Le Nature’s water company, run by Republican and aspiring evangelical leader Gregory Podlucky, was forced into Chapter 7 bankruptcy by creditors after it’s turned out the CEO was engaged in major fraud. Le Nature’s reported $275 million in revenue when it only had $35 million in revenue. The company kept two sets of books, and has less than $1 million in cash and over $750 million in bank and bond debt, lease obligations, and other liabilities. Two safes at the company headquarters were found to contain about $1 million in gold watches and jewelry. Podlucky is accused of falsifying board minutes and defrauding a lender in a lawsuit filed against him by two private equity firms that are minority shareholders. Podlucky was being defended by Albert Manwaring of Pepper Hamilton’s Wilmington, Delaware office, but he withdrew from the case on November 1. $440,000 of the company’s money was donated to the Missy’s Place Foundation, named after Podlucky’s deceased daughter Melissa, and that Foundation purchased land for Podlucky’s proposed Grace Community Church of the Valley in Ligonier, Pennsylvania. More details at the Wall Street Journal’s Law Blog, Long or Short Capital, and at MIT student Jay Silver’s website, who reviewed Le Nature’s water only to be harassed by someone apparently associated with the company. Le Nature’s is closing its Phoenix plant and laying off 85 workers. ...

I received an email from the ACLU yesterday, informing me that they’ve jumped in on the net neutrality debate. Unfortunately, they badly misrepresent the facts: FREE THE NET: WHY YOU SHOULD CARE ABOUT NET NEUTRALITY The keys to the Internet have always been safely in public hands - until last year, when the FCC suddenly repealed longstanding Internet principles of “neutrality” and non-discrimination.The ACLU is going to make the erroneous claim that I’ve debunked repeatedly on my blog (see the Net Neutrality Index)–that the common carriage requirements on telcos constitute “net neutrality.” They will ignore the fact that cable companies–the main providers of consumer broadband Internet access in the U.S.–have never been common carriers and have never been bound by these requirements. With the blessing of the Supreme Court, a handful of profit-driven telecoms and cable companies now could effectively shut down the 21st Century marketplace of ideas by screening Internet e-mail traffic, blocking what they deem to be undesirable content, or pricing users out of the marketplace. The ACLU is going to argue that we need to create a new bureaucratic regulatory apparatus, giving sweeping new powers to the FCC to interfere with freedom of Internet providers to enter into voluntary contracts with each other and manage their own networks, and specifically prohibiting differential pricing on tiered levels of service and the ability for providers to enter into arrangements with content providers to subsidize consumer bandwidth. Historically, Net Neutrality protections filled the free speech gap. Since those protections were removed last year, nothing prevents network providers from discriminating against Internet users and application and service providers in terms of content, quality of access, and choice of equipment.This is doubly false–the common carriage requirements applied only to the last-mile consumer network connections, not to the ability of ISPs to filter; and it is false that “nothing prevents” ISPs from taking actions which would cause them to lose customers. If you’re like many people using the Internet, you don’t think about whether your Internet Service Provider is intentionally slowing down or speeding up your access to Yahoo! versus Google. Without Net Neutrality, your ISP could do just that. Imagine if your phone company was allowed to own restaurants and then provided good service and clear signals to customers who called Dominos and static and frequent busy signals for those calling Pizza Hut. It sounds outrageous, but it would be entirely possible if the telephone system wasn’t regulated under the “common carrier” framework. The telecoms and cable companies that provide Internet network services, including AT&T, BellSouth, Comcast, Qwest, Sprint, Time-Warner/AOL, and Verizon, have spent over $100 million lobbying Congress and the FCC to eliminate established Net Neutrality protections.Remember, cable companies have never been common carriers, yet this hasn’t been a problem. Why create new regulations and give more power to a government agency that has a history of not only working on behalf of the big incumbents (rather than promoting competition, which is what is needed) but of engaging in actions designed to cause discrimination against certain forms of content through censorship? It makes no sense. The assault on Internet freedom will only get worse. The FCC imposed Net Neutrality protections in merger agreements for certain network providers such as SBC/AT&T and Verizon/MCI, but those protections expire in 2007. And in July 2006, the FCC declined to include any Net Neutrality protections in Comcast and Time-Warner’s acquisition of Adelphia Cable. The pattern of the FCC opposing Net Neutrality is expected to continue, as network providers continue to consolidate into an even smaller pool of Internet gatekeepers. Without the vigorous non-discrimination principles in place before 2005, a few corporate conglomerates will control everything that you can say or do on the Internet. Net Neutrality is needed, and it is needed now.The above argument is a mish-mash of fear-mongering about things that haven’t been an issue, misrepresentation of what regulations have been in place, wild unsubstantiated claims (“a few corporate conglomerates will control everything that you can say or do on the Internet”?), and a failure to look at the actual substantive issues in the network neutrality debate. Their website contains further misinformation: ...

Sen. Jon Kyl, a strong supporter of banning Internet gambling, is a target of online poker players upset at the sleazy way the recent law prohibiting banks from engaging in financial transactions with online gaming sites was passed. That law was snuck into a port security bill in the night by Bill Frist, with no opportunity to vote on the amendment. The effect of that law has been to cause all of the largest legitimate online gaming sites (such as those publicly traded on the London Stock Exchange) to decline to permit Americans to use their sites, while those that are on the shadier side continue to take American business. In other words, the effect has been to make online gaming more dangerous for Americans, and to have less accountability about where the profits go. Kyl has seen his lead in the polls over Jim Pederson decline, though he is still, unfortunately, likely to win. ...

Creationist huckster Kent Hovind and his wife Jo have been found guilty of tax fraud in Florida, and each face over 200 years in prison. For more reactions to the verdict: Dispatches from the Culture Wars Pharyngula The Panda’s Thumb More on the trial may be found here. Hovind’s appearance on the Ali G Show may be found here.

Security researcher Chris Soghoian, a graduate student at Indiana University’s School for Informatics and an intern at Google, set up a website that functions as a boarding pass generator for Northwest Airlines. The site contained a form that allowed you to fill in name, flight number, destination, and all of the other information on a boarding pass, and would display a boarding pass that would be indistinguishable from the real thing at the TSA security checkpoints. He pointed out that the identity check at the TSA checkpoint amounts to nothing more than a comparison between the name on a picture ID and the name on a boarding pass, and that this provides no security whatsoever. I’m not sure what threat this check is even supposed to be trying to mitigate. At best, it is an attempt to piggy-back on the check against the no-fly list (which is itself a complete joke) that is performed by the airlines when you purchase a ticket, but clearly that fails as his boarding pass generator is one of several ways to create a boarding pass in a name other than your own–including modifying the displayed text generated by any airline’s online site or even purchasing a ticket in any name you choose. The latter was displayed vividly by a couple of guys who purchased tickets in the names of “Al Kyder” and “Terry Wrist” (link includes video). In my opinion, the only actual purpose served by checking for a valid boarding pass at the TSA checkpoint is to reduce the number of people passing through the checkpoint in order to most efficiently make use of security resources. It does not otherwise have any effect on security; it provides no deterrent to an attacker. It is not effective in screening out those with malicious intent, and it is not even effective in verifying identity. Congressman Ed Markey (D-MA) has called for Chris Soghoian to be arrested. He was visited and interrogated by the FBI, then went to stay at his parents’ house. Friday night, the FBI broke their way into his apartment, seized his computers, and generally trashed his place. Lesson: Point out U.S. security weaknesses, and you will be punished. Those responsible for the weaknesses and idiocy of U.S. “security theater,” however, will not be held accountable. This is one of the rare times when Michelle Malkin actually says something correct. Other coverage: Jim Harper, author of the excellent book Identity Crisis, at the Technology Liberation Front and at Cato@Liberty (this post does a good job of pointing out the problems with the TSA identity check). Bruce Schneier, at his blog. And there’s some rather good coverage in multiple posts at BoingBoing. The problem that Soghoian pointed out was previously described in February 2005 on Slate.com by Andy Bowers, and in 2003 by Bruce Schneier in his Crypt-o-Gram newsletter. So yes, Kip Hawley is still an idiot. UPDATE (November 2, 2006): Bruce Schneier has written a detailed description of the flaw in the security design of the TSA identity check, and makes the same point that even if the flaw is corrected it doesn’t add any real security because it’s just a check of the no-fly list.

The above headline is justified to the same extent as Stop the ACLU’s headline, “Jailed Terror Suspect Helped ACLU Draft School Religion Rules," as the rules in question were drafted jointly and agreed to by 35 organizations which included the National Association of Evangelicals, the ACLU, the Christian Legal Society, the General Conference of Seventh-Day Adventists, and numerous other religious groups. The “jailed terror suspect” in question was a member of the American Muslim Council, one of the 35 groups involved in creating these rules for the Department of Education under Clinton. This led another conservative blogger to headline this story with the even more deceptively dishonest “Terrorist Wrote Clinton’s School Religion Guidelines." (Via Dispatches from the Culture Wars, where Ed Brayton has been repeatedly responding to this same absurd charge for years.)

Gun rights advocate and “uninvited ombudsman” Alan Korwin has sent out a checklist of his recommendations on the Arizona ballot propositions. I disagree with him on several of the propositions, perhaps most significantly on his recommendation of a yes vote to amend the Arizona Constitution to ban same-sex marriage and any legal arrangements that are “similar to” marriage. Here’s his argument for 107: 107 YES Protect marriage amendment. If people want gay unions, polygamy, bestiality or whatever, I say let them, but not under government sanction and funding. I’d like to see us return to “holy matrimony” without any government involvement. Getting married for tax breaks is so wrong.But this argument presumes the effect of 107 is to get the government out of the marriage business, which it isn’t. Rather, 107 has the effect of enshrining existing statutory prohibitions on a form (or multiple forms) of legal contract between consenting adults into the Constitution, and going further to restrict any such arrangement “similar to” marriage. It isn’t pro-liberty, it’s anti-liberty. It isn’t eliminating special privileges, it is adding them to the Arizona Constitution. It’s perfectly reasonable to argue that nobody should have tax breaks or special privileges under the law, but it’s not reasonable to say that because such privileges are wrong we should restrict them to a particular set of people. That’s not only unfair, it’s unconstitutional–a violation of the equal protection clause of the 14th amendment. It’s like arguing that the government shouldn’t confer support on religion, so we should vote yes on an amendment that limits government support to the Christian religion, and keep it from supporting Islam or other religions. (No doubt there are many Americans who would, quite wrongly, support such a law.) Now, some advocates of Proposition 107 have argued that there is no violation of the equal protection clause because a gay man has the same right to marry a woman as a heterosexual man does. But this is just like arguing that a prohibition on interracial marriage doesn’t violate the equal protection clause because a black man has the same right to marry a black woman as a white man has to marry a white woman–the description of the right is being crafted to exclude the category of person who is being discriminated against. As Ed Brayton has pointed out on numerous occasions, the arguments for the unconstitutionality of a ban on same-sex marriage are of the same form as the arguments for the unconstitutionality of a ban on miscegenation, just replacing “different race” with “same sex.” If you think that the Supreme Court ruled correctly in Loving v. Virginia, you should also think that Arizona’s Proposition 107 violates the U.S. Constitution for the same reasons. See also my previous post on the Protect Marriage Arizona amendment. You may also find David Friedman’s economic analysis of marriage arrangements to be of interest. UPDATE (October 21, 2006): Just to make it clear, THeath has enumerated some specific examples of what opponents of gay marriage are actually endorsing (there are several more if you follow the link)–these aren’t hypotheticals, these are real people: There was the friend I wrote about recently who was turned away from from the emergency room, where his partner had been taken after suddenly collapsing at work, and told he could not be given any information because he was not next of kin. He had to leave the hospital and retrieve their legal documents before he could gain admittance to see his partner when a married spouse would have been waved through without question. My friend was luckier than Bill Flanigan. When his partner Robert Daniel was hospitalized in Baltimore, the couple had their legal documents with them, including durable power of attorney and documentation that they were registered as domestic partners in California. But those documents were ignored by hospital staff and Flanigan was kept from seeing his partner until Daniel’s mother and sister arrived and by then Daniel was unconscious, with his eyes taped shut and hooked to a breathing tube; something Daniel had not wanted. Even having a will didn’t help Sam Beaumont when his partner of 23 years, Earl, died. Oklahoma requires a will to have two witnesses, but Earl didn’t know that and his will leaving everything to Sam had only one. So Earl’s cousins, who disapproved of his relationship and most of whom never spoke to the couple or even came to Earl’s funeral, successfully sued to take away the home and ranch Sam an Earl had shared for 23 years. A married spouse, even in the event of a will lacking enough witnesses, would’ve had the right to automatically inherit at least some of the estate. Further Update (October 22, 2006): Ed Brayton takes apart the Alliance Defense Fund’s white paper on these marriage amendments here. ...

The Village Voice has an excerpt from the book Torture Taxi: On the Trail of the CIA’s Rendition Flights, which is fascinating reading. The hobby of planespotting–watching and recording information about planes that take off and land–led a few individuals to deduce that planes spotted at “Base Camp” in Nevada were being used by the CIA to transport prisoners to locations in eastern Europe and the Middle East. Individuals correlating data with each other over the Internet and comparing to flight logs and testimony from released prisoners yielded very specific results. Civil Air Landing Permit data was used to identify obscure companies with clearance to land anywhere they want, including restricted military bases–such as One Leasing, Richmor Aviation, Stevens Express Leasing, Tepper Aviation, Path Corporation, Rapid Air Trans, Aviation Specialties, Devon Holding and Leasing, Crowell Aviation, and Premier Executive Transport Services. The planes owned by some of these companies were found to be visiting military bases, Guantanamo Bay, Morocco, Romania, Poland, Afghanistan, and Iraq. Jon Sifton of Human Rights Watch has conducted analysis of the resulting flight data to determine which stops were merely for refueling and which were for destinations–acute angles for inbound and outbound flights from a stop are indicative of a destination rather than a refueling stop, for example. ...

The pages involved were all 16 years of age or older, and thus above the age of consent in Washington, D.C. and most states. If Foley had actually had sex with them, it would not have been a crime. But under the “Adam Walsh Child Protection and Safety Act of 2006” which Foley helped write, discussing sexual acts or soliciting sex from anyone under the age of 18 is a criminal offense. These laws should be made consistent one way or the other. It doesn’t make Foley’s actions any more appropriate given his position of trust and power in the House (or provide any excuse for the House leadership’s lack of response), but if 16 is a sensible age of consent, then the Adam Walsh Child Protection and Safety Act of 2006 should use the same age as its limit.