January 23, 2012

illegal search and seizure -- apparently, the concept still exists

Supreme Court Court Rejects Willy-nilly GPS Tracking | Threat Level | Wired.com
By David Kravets
January 23, 2012 |

The Supreme Court said Monday that law enforcement authorities might need a probable-cause warrant from a judge to affix a GPS device to a vehicle and monitor its every move — but the justices did not say that a warrant was needed in all cases.

The convoluted decision (.pdf) in what is arguably the biggest Fourth Amendment case in the computer age, rejected the Obama administration’s position that attaching a GPS device to a vehicle was not a search. The government had told the high court that it could even affix GPS devices on the vehicles of all members of the Supreme Court, without a warrant....

You know ... I'm by way of thinking that if you want to win your case, telling the Supreme Court that you have the authority (as opposed to the ability) to conduct what may be warrantless searches of the justices themselves is not a really good thing to do.

The decision itself manages the interesting trick of being both unanimous -- in that all nine justices concur in the result, overturning the conviction -- and terribly fractured, with nobody agreeing under what circumstances a warrant might actually be required. They just agree that surveying someone by GPS for 28 days absolutely positively should have required one, because of the length of time. Fewer days? Maybe, maybe not. Absolutely silent on that. And, if the article is accurate, in a truly confusing maneuver, while the justices all agreed that the prolonged duration of this "search" without a warrant was unreasonable and thus resulted in the overturning of the sentence, they declined to state whether a warrant was required in the first place.

Seriously, an actual lawyer is going to have to go over that to make sense of it to me, because it sounds like the only thing the Court could clearly agree on was that the government had exceeded its authority in this particular case. They then bent themselves into pretzels to avoid telling the government exactly what its authority was. In part this is because the Court tires to avoid dealing with purely procedural matters when it can. I also have a sneaky feeling that the Court's belief, to the extent that it can be divined, is that you actually can't go wrong with getting a warrant for placing a GPS device on a suspect's car each and every time. You then have to show probable cause to the judge, you have to demonstrate that you have some concrete reason for believing this person is a criminal. Following this sort of procedure will actually make more certain that you don't have sentences thrown out for not doing what you should have done in the first place. Of course, putting a GPS device on someone's car is low-level enough, in some ways, that it does put the authorities in an interestingly circular bind. They might have enough evidence to suspect that someone's a criminal, and the GPS device might give them enough evidence to make the case. But, of course, if you have to get a warrant first, you have to demonstrate that you have enough evidence to warrant the warrant, so to speak.

The fascinating part comes at the very end, where the government notes, "The government told the justices during oral arguments that that GPS devices have become a common tool in crime fighting, saying it is employed “thousands” of times annually." If that's true, given this decision, just imagine how many cases are going to start parading through the courts. And you're going to get wildly differing decisions from the Circuits, because the Court's decision gives a profound lack of guidance. The Ninth, with a generally more civil-libertarian/liberal lean, will probably throw out many cases; the Fifth Circuit, with its cavalier disregard of human rights (or, indeed, actual humans whenever possible) will be confirming sentences right and left and probably trying to encourage the states to go for death sentences whenever possible even if they didn't do so in the first place. (Yes, yes, I know that's not possible. Nonetheless, the Fifth has a reputation to uphold.)

Posted by Iain Jackson at 03:53 PM | Permalink

January 19, 2012

supreme court guts public domain in u.s.

Public Domain Works Can Be Copyrighted Anew, Supreme Court Rules (nytimes.com) By ADAM LIPTAK Published: January 18, 2012

The Supreme Court on Wednesday upheld a federal law that restored copyright protection to works that had entered the public domain. By a 6-to-2 vote, the justices rejected arguments based on the First Amendment and the Constitution’s copyright clause, saying that the public domain was not “a category of constitutional significance” and that copyright protections might be expanded even if they did not create incentives for new works to be created.

The case, Golan v. Holder, No. 10-545, considered a 1994 law enacted to carry out an international convention. The law applied mainly to works first published abroad from 1923 to 1989 that had earlier not been eligible for copyright protection under American law, including films by Alfred Hitchcock, books by C. S. Lewis and Virginia Woolf, symphonies by Prokofiev and Stravinsky and paintings by Picasso. The precise number of affected works is unknown but “probably number in the millions,” Marybeth Peters, the United States register of copyrights, said in 1996. The law was challenged by orchestra conductors, teachers and film archivists who said they had relied for years on the free availability of such works.

Justice Ruth Bader Ginsburg, writing for the majority, said the law had merely put “foreign works on an equal footing with their U.S. counterparts. [...] Assuming a foreign and domestic author died the same day, their works will enter the public domain simultaneously,” she wrote.

The issue, as noted, is that there are works which are foreign and became public domain in the US, but were still copyrighted in other parts of the world. Congress passed legislation to re-copyright some items to bring the US into full compliance with the Berne Convention.

One of the arguments by the plaintiffs was that this would effectively allow Congress to legislate effectively perpetual copyright status. The Court majority politely disagreed. This is because they've already agreed with Congress that it has the right to legislate effectively perpetual copyright, in Eldred v. Ashcroft.

In a post at Ars Technica, the article mentions that one of the plaintiff lawyers says that the decision "suggests Congress is not required to pay particularly close attention to the interests of the public when it passes copyright laws." To which, of course, the proper response is, "Well, DUH! When was the last time YOU noticed Congress paying particularly close attention to the interests of the public regarding ... well, anything?"

It will, no doubt, be presented in various places as Big Media Buys Off Congress And Court Agrees. (Though, to be fair, Big Media apparently bought off Europe first.) Or, The House of Mouse Wins A Fight They Weren't Even Fighting, or something like that. Even if the issue was bringing the U.S. into compliance with its treaty obligations -- which is the basis for the Court's decision -- it's hard not to notice that a number of the entities who will benefit from this decision are also the same ones who benefited from the Court's last major copyright decision. And that one WAS a case where Big Media Bought Congress.

If nothing else, the decision did manage to produce a striking combination of dissenters. Except in unanimous decisions -- which the Court rarely has about anything important these days -- you would rarely find Breyer and Alito in agreement. But in this case, in Breyer's dissent, in which he was joined by Alito, they both agreed that the copyright authority in the constitution was meant to be much more limited than this decision implied, and that this decision "abridges a pre-existing freedom to speak".

It's going to be interesting to see what happens. There are many items in various digital repositories, like Google Books and Hathi Trust -- items considered "orphan works", not purely because the copyright term had expired, but because the potential holders of copyright were no longer in business or could not be located -- that suddenly now have copyright protection previously lacking. What happens with those items? It also gives further ammuntion to the lawsuits against those projects.

For various academic and public interests, it's going to be a brave new world, figuring out what now is and is not covered, and what they're allowed to do.

Posted by Iain Jackson at 12:49 PM | Permalink

January 17, 2012

arizona vs its hispanic population -- again

Will TUSD Violate a Federal Court Order Tonight? (tucsonweekly.com) Posted by Mari Herreras on Tue, Jan 10, 2012 at 1:30 PM

When the Tucson Unified School District governing board meets tonight it could mean several possibilities, including an expected vote to not appeal state Superintendent John Huppenthal's recent ruling on Friday, Jan. 6 that the district's Mexican American Studies classes are illegal. If the district appeals it would force the state to take their case before a Superior Court judge and prevent Huppenthal from financially penalizing the district withholding more than $10 million in state aid.

But if a majority of board members vote against an appeal and begin the process of dismantling the current Mexican American Studies program, some wonder if the district will be in violation of a federal desegregation order and the district's own 2009 Post-Unitarian Status plan approved by court.

Sylvia Campoy, a former TUSD teacher, school board member and director of the city of Tucson's Equal Opportunity Program, has been involved in the TUSD desegregation litigation for more than 30 years and now represents the Mendoza plaintiff's at TUSD desegregation meetings, told the Range that she plans to speak at tonight's meeting to remind the governing board that yes, if indeed they choose not to appeal Huppenthal's ruling, they could be violating the district's federal court-approved deseg plan....

Arizona Orders Tucson to End Mexican-American Studies Program - NYTimes.com

By MARC LACEY
January 7, 2011

TUCSON — The class began with a Mayan-inspired chant and a vigorous round of coordinated hand clapping. The classroom walls featured protest signs, including one that said “United Together in La Lucha!” — the struggle. Although open to any student at Tucson High Magnet School, nearly all of those attending Curtis Acosta’s Latino literature class on a recent morning were Mexican-American.

For all of that and more, Mr. Acosta’s class and others in the Tucson Unified School District’s Mexican-American program have been declared illegal by the State of Arizona — even while similar programs for black, Asian and American Indian students have been left untouched.

“It’s propagandizing and brainwashing that’s going on there,” Tom Horne, Arizona’s newly elected attorney general, said this week as he officially declared the program in violation of a state law that went into effect on Jan. 1.

Although Shakespeare’s “Tempest” was supposed to be the topic at hand, Mr. Acosta spent most of a recent class discussing the political storm in which he, his students and the entire district have become enmeshed. Mr. Horne’s name came up more than once, and not in a flattering light. It was Mr. Horne, as the state’s superintendent of public instruction, who wrote a law aimed at challenging Tucson’s ethnic-studies program. The Legislature passed the measure last spring, and Gov. Jan Brewer signed it into law in May amid the fierce protests raging over the state’s immigration crackdown.

For the state, the issue is not so much “The Tempest” as some of the other texts used in the classes, among them, “The Pedagogy of the Oppressed” and “Occupied America,” which Mr. Horne said inappropriately teach Latino youths that they are being mistreated.

Teaching methods in the classes are sometimes unconventional, with instructors scrutinizing hip-hop lyrics and sprinkling their lessons with Spanish words.

The state, which includes some Mexican-American studies in its official curriculum, sees the classes as less about educating students than creating future activists.

In Mr. Acosta’s literature class, students were clearly concerned. They asked if their graduation was at risk. They asked if they were considered terrorists because Mr. Horne described them as wanting to topple the government. They asked how they could protest the decision.

Then, one young woman asked Mr. Acosta how he was holding up. “They wrote a state law to snuff this program out, just us little Chicanitos,” he said, wiping away tears. “The idea of losing this is emotional.” [...]

Holder: Voting rights under attack in states
Mcclatchy Newspapers Mcclatchy Newspapers | Posted: Tuesday, January 17, 2012 12:00 am (azstarnet.com)

In his bluntest comments to date, Attorney General Eric Holder said Monday that voting rights, particularly for minorities, are under assault in some states.

Speaking at a Martin Luther King Jr. holiday event in Columbia, Holder said some states had sued to challenge provisions of the Voting Rights Act and had approved new laws that would make it difficult for some minorities to register and vote this year, five decades after King and other civil rights leaders fought for access to the ballot box.

"Each of these lawsuits claims that we've attained a new era of electoral equality, that America in 2012 has moved beyond the challenges of 1965," Holder told hundreds who gathered outside the domed Capitol. "I wish that were the case. But the reality is that - in jurisdictions across the country - both overt and subtle forms of discrimination remain all too common." [...] Holder's comments come nearly four weeks after the Justice Department's Civil Rights Division ruled that South Carolina's voter identification law was discriminatory because it would make voting harder for minorities, who lack sufficient forms of government-approved ID more often than whites do. Justice Department officials weighed in on the law under Section 5 of the 1965 Voting Rights Act, which requires approval of proposed voting-law changes in 16 mostly Southern states because they have histories of discrimination. Arizona is one of those states....

2 AZ bills would allow Bible class in schools (azstarnet.com)
Rhonda Bodfield
Arizona Daily Star | Posted: Tuesday, January 17, 2012 12:00 am

A Republican lawmaker from Tucson wants to allow the Bible to be taught as an elective in high school. State Rep. Terri Proud said the concept is gaining support among her colleagues in the House.

Current state law states that a teacher who uses sectarian or denominational books, or who teaches any sectarian doctrine in school, is guilty of unprofessional conduct and may have his or her license revoked.

Proud said HB 2563 and HB 2473 aren't about bringing church in the classroom, but aim to familiarize students with the way biblical references impact literature, art, music and public policy. Proud said that in her discussions with teachers as a member of the House Education Committee, she's heard from many who are fearful of even mentioning God or the Bible in the classroom.

Tucson Unified School District Superintendent John Pedicone said it strikes him as an unnecessary bill. The Bible in its historical context is already addressed in various courses as it becomes relevant, he said, and there's also nothing in law now that expressly prohibits a teacher from talking about it. "I suppose it could give it more of a focus and make sure people understand that, but I'm not sure that's the reason we pass laws. I don't think it belongs in legislation," he said

But Proud said that, while she agrees that there's nothing in law now that prohibits teaching about the Bible, the fear of getting in trouble for it hamstrings teachers. Biblical references are rife throughout Shakespeare's works, she said, and it would be nearly impossible to teach an art-history class and discuss Michelangelo's "Creation of Adam" without having the appropriate religious context.

That makes some degree of sense to Tucson Democratic lawmaker Steve Farley. "If a student is reading Shakespeare and doesn't understand biblical sources, they aren't going to get as much out of it," Farley said, adding that he would encourage students to have some foundational knowledge of the Quran as well.

But Proud said she has no intention of adding the Quran to the mix. "The Quran hasn't influenced Western culture the way the Bible has," she said, noting students already learn about some ancient religions, including Greek and Roman gods, in their coursework.....

Apparently, Representative Proud has never heard of Arabic numbers. Which would explain a lot, really. But I digress, already.

So, let me get this straight-ish:

Arizona wants to make teaching the Bible a requirement, which would be illegal under both state and federal law.

In the meantime, they have stripped Tucson of a particular Mexican American literature class, despite being under federal orders to expand the Mexican American studies department specifically at the middle and high school levels. A law rather clearly aimed at that one class, but having broader effects for the entire school district.

...All-righty, then!

I am mildly, if only mildly, surprised that Tucson chose not to challenge the ruling. I mean, on the one hand, we're talking about Arizona, land of consent decrees (two, even!), Arpaio, and an unspeakable "driving while Hispanic" law that the courts have so far not looked favorably on. 'Nuff said, really. On the other hand, the existence of those two consent decrees means that Tucson had to know that it won't be long before this decision itself gets challenged in court, both by affected students as a class and by the federal government, which will not be well pleased at having Tucson abrogate its part in the agreement. Why wouldn't you put yourself on the side of the requirements you're supposed to be meeting, and challenge that way? I suppose there's some rhetorical advantage to be gained by saying some of the more ... vocal, shall we say, constituents, "Look, we didn't want to reinstate these courses! The feds made us do it! We're the victims of a nondiscriminatory federal bureaucracy and out-of-control judiciary! Us! We're the victims here!"

On the other hand ... despite their best efforts, Arizona is becoming more Hispanic. More slowly than before, of course -- a state that has demonstrated an unseemly aggression and glee in legislating against its Hispanic minority is not a place that most sane Hispanic peoples would choose to move to. On the other hand, more and more are simply being born there. Arizona can slow down the demographic change, but not prevent it. And things like this: they will be remembered.

Posted by Iain Jackson at 12:48 PM | Permalink | TrackBacks (0)

June 24, 2011

"new york says yea"

Gay Marriage Approved by New York Senate - NYTimes.com

By NICHOLAS CONFESSORE and MICHAEL BARBARO
Published: June 24, 2011

ALBANY — Lawmakers voted late Friday to legalize same-sex marriage, making New York the largest state where gay and lesbian couples will be able to wed, and giving the national gay-rights movement new momentum from the state where it was born.

The same-sex marriage bill was approved on a 33-to-29 vote, as 4 Republican state senators joined 29 Democrats in voting for the bill. The Senate galleries were so packed with supporters and opponents that the fire marshals closed them off. And along the Great Western Staircase, outside the Senate chamber, about 100 demonstrators chanted and waved placards throughout the night — separated by a generation, a phalanx of state troopers and 10 feet of red marble.

“Support traditional marriage,” read signs held by opponents. “Love is love, Vote Yes,” declared those in the hands of the far more youthful group of people who supported it.

Senate approval was the final hurdle for the same-sex marriage legislation, which is strongly supported by Gov. Andrew M. Cuomo and was approved last week by the Assembly. Mr. Cuomo is expected to sign the measure soon, and the law will go into effect 30 days later, meaning that same-sex couples could begin marrying in New York by midsummer.

Passage of same-sex marriage here followed a daunting run of defeats in other states where voters barred same-sex marriage by legislative action, constitutional amendment or referendum. Just five states currently permit same-sex marriage: Connecticut, Iowa, Massachusetts, New Hampshire and Vermont, as well as the District of Columbia....

It will be interesting to see what the effect of this is, and how long it lasts. How long will it be before some conservative organization challenges the law in court? (At the moment, New York does not have an initiative and referendum process, although the Senate approved the draft law this very session, only two weeks ago. It's not clear from what I've found whether the Assembly approved a bill on that topic or not. If they did, it would be a change to the NY state constitution, so it would need to be approved by the Assembly and Senate again next year, and then it would go out to the citizenry for a vote up or down. And THEN, once that was approved, the people of NY could decide at the ballot box whether or not allowing people to marry whom they choose is in fact a threat to the fabric of the republic itself. (Of course, if it gets to the ballot box, they WILL decide to revoke the law, but it'll take a while to get there.)

So, basically, we've go the northeast (notably minus Maine, of course), DC (which is so ironic I just can't stand it), and Iowa ... where they're punishing the justices who said that the Iowa state constitution by voting them off the bench, one by one. So there's that.

And everywhere else that the issue has come up, the people have said, "ick ick ick ick ICK! No! We do not believe that all people are created equal! We do not believe that everyone is entitled to life, liberty and the pursuit of happiness!" Which is the sort of thing that happens when the majority gets to vote on whether or not the minorities should be allowed to exercise the rights to which they are entitled as fellow citizens of the country.

But still. New York said yea. And that's something, for today.

Posted by Iain Jackson at 10:46 PM | Permalink

June 20, 2011

studies, studies, studies

Homophobic Men Most Aroused by Gay Male Porn | Psychology Today

Homophobic Men Most Aroused by Gay Male Porn
Homophobia Associated with Penis Arousal to Male on Male Sex
Published on June 9, 2011 by Nathan A. Heflick in The Big Questions

Even a man who thought that women want to have sex with their fathers and that women spend much of their lives distraught because they lack a penis is right sometimes. This person, the legend that is Sigmund Freud, theorized that people often have the most hateful and negative attitudes towards things they secretly crave, but feel that they shouldn't have.

If Freud is right, then perhaps men who are the most opposed to male homosexuality have particularly strong homosexual urges for other men....

Is homophobia associated with homosexual arousal?
Adams HE, Wright LW Jr, Lohr BA.
J Abnorm Psychol. 1996 Aug;105(3):440-5.

Department of Psychology, University of Georgia, Athens 30602-3013, USA.
Abstract

The authors investigated the role of homosexual arousal in exclusively heterosexual men who admitted negative affect toward homosexual individuals. Participants consisted of a group of homophobic men (n = 35) and a group of nonhomophobic men (n = 29); they were assigned to groups on the basis of their scores on the Index of Homophobia (W. W. Hudson & W. A. Ricketts, 1980). The men were exposed to sexually explicit erotic stimuli consisting of heterosexual, male homosexual, and lesbian videotapes, and changes in penile circumference were monitored. They also completed an Aggression Questionnaire (A. H. Buss & M. Perry, 1992). Both groups exhibited increases in penile circumference to the heterosexual and female homosexual videos. Only the homophobic men showed an increase in penile erection to male homosexual stimuli. The groups did not differ in aggression. Homophobia is apparently associated with homosexual arousal that the homophobic individual is either unaware of or denies....

See, this is the sort of thing that just makes you wonder about scientists sometimes.

Actually, the other question that comes to mind -- aside from, you know, why didn't they just ask us? -- is, why did it apparently take Psychology Today about 15 years to notice this study existed? Seriously, there's no news there. Nobody ran another penis-squeezing study to confirm the findings of the first one. (Besides, the government isn't in favor of this sort of study these days. Squeezing penii for fun and profit should only be done by professionals or talented amateurs! By which I mean medical personnel in the process of some sort of physical examination, people making porn, or the person with whom you are making the beast with two [or more, we're not judging] backs. Or yourself, of course. Still not judging. But I digress.)

Seriously, what made Psychology Today notice this ... well, today? (ish.)

Posted by Iain Jackson at 08:02 PM | Permalink