Author Archives: Michael Froomkin

The Thorn in the Rose

Posted on May 23, 2005 by Michael Froomkin

At first blush, the proposal at davidshcess.com [seen via Ascription is an Anathema to any Enthusiasm] sounds so sensible: Tired of originalists like Justice Scalia going on about how the Eighth Amendment only prohibits punishments that were cruel and unusual in 1791, and hence the death penalty (and maybe chopping off ears, and certainly stockading) are constitutional today? Want to do something about them? Just introduce a new constitutional amendment re-enacting the Eighth. No one would dare vote against it (are you for cruel and unusual punishment?) and it would re-set the clock to modern times (are you for cutting off ears?).

But in fact, it's a rotten idea. It surrenders a key point of principle. I am, in the main, relatively sympathetic to at least a weak form of originalism. If words don't have meanings that we can collectively ascribe to them, with some consistency over time, then constitutional government is a bit of a farce. I'd like to avoid that, for all that Senators Frist and Santorum are determined to make it difficult.

But in the originalist constitution I read, there's not only play in the joints, but in some cases an invitation to evolve. It's not everywhere. The requirement that the President be 35 isn't a requirement that s/he have the relative wisdom and maturity of a 35 year old in 1783, or have lived an equivalent fraction of the average life expectancy. It's that the person be 35. On the other hand, some parts of the Constitution do read like invitations to change with the times. ('It is a Constitution we are expounding here' after all.) And the cruel and unusual clause is definitely one of them. So there's no need to re-set the clock on cruelty — it's always ticking. And it would be wrong to provide such luscious ammunition to those who suggest otherwise.

Posted in Law: Constitutional Law | 7 Comments

It’s a Feature

Posted on May 22, 2005 by Michael Froomkin

Slashdot reports on the Cockroach-Controlled Robot:

The latest issue of Make Magazine volume 2 from O'Reilly publishing has an article on a cockroach controlled robot. Roboticist Garnet Hertz has mounted a Giant Madagascan Hissing Cockroach that drives a small mobile robot around by walking on top of a Kensington trackball. There is a row of proximity sensor triggered LEDs that shine light in the roach's eyes, making him steer the robot since roaches instinctively avoid light. Garnet's web page 'Control and Communication in the Animal and the Machine' details the project with several images of the roach in action. Debugging the project is inherently impossible.

Does this means that Miami will be come the world leader in robotics? We certainly have a very large supply of one of the raw materials.

Posted in Sufficiently Advanced Technology | 1 Comment

Spanish Lecturer Fired For Defending P2P

Posted on May 22, 2005 by Michael Froomkin

Big Copyright beat up on Jorge Cortel and his university caved. Lecturer censored in Spanish University (UPV) for defending P2P networks:

This what happened to me when trying to defend the legal use of P2P networks in Spain.

I have been teaching “Intellectual Property” (although I dislike the term) among other subjects at a Masters Degree in the Polytechnic University of Valencia UPV (Spain) for over 5 years. Two weeks ago I was scheduled (invited by the ETSIA Student Union and Linux Users' Group for the celebration of “Culture Week”) to give a conference in one of the university's buildings. During that conference I was to analyze the legal use and benefits of the P2P networks, even when dealing with copyrighted works (according to the Spanish Intellectual Property Law, Private Copy provision, and many research papers, books and court rulings). I was even going to use the network to “prove” that it was legal, since members of the Collecting Society “SGAE” had appeared on TV and newspapers saying that “P2P networks are ilegal” (sic) just like that, and to that extent I even contacted SGAE, National Police, and the Attorney General in advance to inform them about it.

The day before the conference, the Dean (pressured by the Spanish Recording Industry Association “Promusicae” as I found out later, and he recognized himself in a quote to the national newspaper El Pais, and even the Motion Picture Association of America, as another newspaper quotes) tried to stop it by denying permission to use the scheduled venue. So I scheduled a second one, and that was denied again. And a third time. Finally I gave the conference on the university cafeteria, for 5 hours, in front of 150 people.

And so the University fired him later that day (he was untenured). And then they tried to pretended he'd never even been teaching there at all (spotted via Boing Boing).

This is the sort of story I think about every time I read a suggestion that we consider abolishing tenure; this is why tenure matters.

Posted in Law: Copyright and DMCA | Comments Off on Spanish Lecturer Fired For Defending P2P

This Week’s Events

Posted on May 22, 2005 by Michael Froomkin

I'm going to be leaving Tuesday evening for the GDR TICS – Workshop Governance, Regulations, Powers on the Internet being held in Paris on Friday and Saturday. I'm going to queue up a few things that have been lying around, but I don't expect to blog much while away.

Fortunately, I've secured the services of my very favorite UM colleague to serve as a guest blogger in my absence.

Update: And a good thing too, or I might have had to switch to Autoblogger (spotted via Joi Ito).

Posted in Discourse.net, Talks & Conferences | Comments Off on This Week’s Events

A Voice from Civilization

Posted on May 21, 2005 by Michael Froomkin

The headline is far too tame: New Swedish Documents Illuminate CIA Action. Here's the real meat regarding Sweden's new report an an extraordinary rendition conducted by the US CIA which removed an Egyptian national from Sweden to Egypt (chained to a mattress no less):

… in Sweden a parliamentary investigator who conducted a 10-month probe … recently concluded that the CIA operatives violated Swedish law by subjecting the prisoners to “degrading and inhuman treatment” and by exercising police powers on Swedish soil.

“Should Swedish officers have taken those measures, I would have prosecuted them without hesitation for the misuse of public power and probably would have asked for a prison sentence,” the investigator, Mats Melin, said in an interview. He said he could not charge the CIA operatives because he was authorized to investigate only Swedish government officials, but he did not rule out the possibility that other Swedish prosecutors could do so.

…

Swedish security police said they were taken aback by the swiftness and precision of the CIA agents that night. Investigators concluded that the Swedes essentially stood aside and let the Americans take control of the operation, moving silently and communicating with hand signals, the documents show.

“I can say that we were surprised when a crew stepped out of the plane that seemed to be very professional, that had obviously done this before,” Arne Andersson, an assistant director for the Swedish national security police, told government investigators.

Yes, the US is very experienced in barbarity these days.

The two Egyptians later told lawyers, relatives and Swedish diplomats that they were subjected to electric shocks and other forms of torture soon after their forced return to their country.

Which was, of course, the point of the whole exercise.

Note that the two men had applied for asylum, but been refused, and were subject to an expulsion order.

Swedish security police wanted to arrest the men and put them on a flight to Cairo immediately to avoid giving their lawyers a chance to file an emergency appeal in court.

Swedish government ministers hastily scheduled a meeting for Dec. 18, 2001, to formally approve the expulsion. But the security police were unable to charter a flight to take the Egyptians to Cairo until the next morning. Police officials, worried about an overnight delay, turned to the CIA for help, according to the documents.

I'm sure there's a Swedish fable about getting help from ogres or something.

Posted in Civil Liberties | 4 Comments

Questions the Veep Should Answeer

Posted on May 20, 2005 by Michael Froomkin

Paul Gowder Horwitz has a very interesting set of comments at PrawfsBlawg: The Filibuster, the Constitution Outside the Courts, and the Press's Failure. A taste:

What is disappointing is that Cheney has, essentially, been allowed to maintain near perfect silence on the question of whether and why it is unconstitutional to filibuster judicial nominees.  Nor, for reasons I hope I have demonstrated, is it enough to stop there?  What constitutional conclusions has he reached on all these other questions?  The failure of the press to push for answers on these questions is really disappointing — inexcusable, in fact.  It is also disappointing that the Democratic Senate caucus has not pressed him, or anyone, on these points in a sustained and public way.

What accounts for this silence?  I don't think it is simply that this level of detail is reserved for law geeks.  I think it says something about how we think about the Constitution as applied outside the courts.  The prevailing assumption from day one, I think, has been that the Vice President would simply come to the aid of his party.  Thus, the Majority Leader assumed the rule change could happen, the press assumed the same thing, and the Democrats didn't fight hard on the constitutional point but focused instead on the nucelar option specter.

But a vote by the presiding officer of the Senate (who, it is generally assumed, will also be the Vice President) is not a political vote.  At least it is not supposed to be.  It decides a constitutional question — and one that, at that, would likely be insulated from judicial review.  The Vice President, along with the members of the Senate, takes an oath to “support this Constitution,” and we ought to assume he takes it seriously.  That means that, finally, only his views will matter — not those of Senator Frist, or his lawyers, or the public, or even the President.  Whether liberal or conservative, most lawyers (and citizens) assume that a judge who cast a vote on a constitutional question purely as a matter of expediency would be dishonoring his office: that judge must decide what the Constitution means, and vote accordingly, without regard to his personal preferences.  Is the same any less true of any other government officer faced with the duty of interpreting the Constitution?  In short, the failure to press Cheney for a principled explanation of his position on the constitutionality of the filibuster of judicial nominees, and of all other filibusters, is inexcusable.

Posted in Law: Constitutional Law, The Media | 5 Comments