thewayne: (Cyranose)
Currently we have The Senate screaming that it is established that a President in his last year cannot nominate a Supreme Court Justice. This is complete bullshit.

So let's postulate that they actually hold true to this.

And then in November Trump gets elected President.

What would the Senate do? The Republican establishment hates Trump with a blind, raging, purple passion. So what would happen?

Could be quite interesting.
thewayne: (Cyranose)
Here's a list of possible judges who appear to be well-qualified to be nominated to the Supreme Court. They run the gamut from liberal to centrist to conservative, thus it's possible for Obama to put someone forth that there's no good reason not to approve them. Which would put incredible strain on the Republicans running the Senate to justify leaving a position on the Supreme Court open for an extended period of time. There has been bluster about 'there's never been a justice appointed during an election year!' which is completely bogus, it happened about 30 years ago during Reagan's reign. But when it comes to the Supreme Court, normally nominees are approved or shot-down within about two months. So if the Senate doesn't jump on approval promptly, it will further reinforce their image of an obstructionist, do-nothing, party. And doing that, right now, will jeopardize a few seats in the upcoming election, which could damage their chokehold on the Senate and thus Congress. And the entirety of the House is up for election, as it is every two years, so it's possible that this could be the catalyst to flipping the House.

I think Obama's best chance of damaging the Senate is to put forth a moderate that they should have no significant reason to delay approval, just to prove their obstinate core.


The interesting thing about Scalia's death is what it does to cases that they've already decided but have not been published -- IT REMOVES HIS VOTE FROM THE TALLY. So any case that has been heard that had been decided by a 5-4 conservative vote are now likely 4-4 ties! It isn't a situation of ties go to the defender, but ties send it back to the lower court for reconsideration. After a deciding vote is taken, the Chief Justice assigns writing the decision to a justice, and it can be assigned to themselves. Anyone can write a supporting or dissenting opinion on their own as part of the record. And until the document is published, justices can change their vote! This makes a dissenting opinion in to a supporting opinion, and vice-versa.

And apparently this has happened, possibly as recently as the decision that supported the Affordable Care Act.

So the Senate has a real dilemma. If they delay a decision on what the public perceives as a well-qualified nominee just to be obstinate in hopes that a Republican, but not Trump, becomes President in November. Which means there's a vacancy on the Supreme Court of unheralded length, and also makes them look really bad. Or do they approve said nominee who may or may not toe the line of Republican ideology, whatever that happens to be at the moment.

Mitch McConnell has a lot to think about right now.

Another thing to consider is Justice Clarence Thomas. The observation is that Thomas always looked to Scalia for which way to vote. He's said about two sentences of dialog in the last decade in the Court, we have no way of knowing how vocal he is in private discussions at the Court. So what's he going to do? He can retire at any time, only time will tell if he starts asking questions as cases are heard, which could indicate that he can actually think for himself. Or he could remain the silent stoic and grab a new set of coattails to cling to.


I think the most interesting thing is that some justices, over the years, have proven that they're critical thinkers and not political ideologues. Sandra Day O'Conner was one, some of her votes were conservative-leaning and some were liberal. We've seen several decisions that stunned the punditocracy, including a conservative proving themselves to be a moderate in the Affordable Care Act decision.

Only time will tell.
thewayne: (Cyranose)
Absolutely [REDACTED] ridiculous. I'm sorry, HL is a publicly-traded corporation, they are not a religious organization. I don't care that they're "closely held", they're still a nation-wide corporation. If they were a private corporation, I would respect the decision more, but they aren't. Some other examples of closely-held corporations include: Koch Industries, Dell Computers, and Heinz. Give me a break. HL employs 16,000 at 500 stores through the country.

The Court said that the decision only applied to contraception, and (as described by a Planned Parenthood) ..."that it would not cover religious objections to vaccines and blood transfusions, or religious objections to complying with civil rights laws." A lot of legal researchers don't think it's as narrow a decision as it appears, and it also establishes precedent.

There's a couple of problems there. First, there are religions that will not allow blood transfusions, it's a deeply-held belief. Second, what about women who need contraceptives for health problems? My sister went on the pill when she was an early teen even though she wasn't (I hope!) sexually active, she had serious anemia problems whenever her period came around.

The Reverend Dr. Weldon Gaddy, president of the Interfaith Alliance said the following after the decision was released Monday morning: "The Supreme Court made a grave error today. The balance between religious freedom and other compelling interests has always been tenuous, but we may very well remember today's decision as the moment that balance was radically recalibrated. The First Amendment is at its best when it is used to protect the rights of minorities from the whims of the powerful. Today's decision, which gives the powerful the right to force their religious beliefs on those around them, is a far cry from the best traditions of religious freedom."

Amen, brother. I like a Heinlein quote: Freedom of religion is inversely proportional to the strength of the dominant religion.

It was a 5-4 decision, you get three guesses to figure out who voted on which side and the first two don't count.

http://www.npr.org/2014/06/30/327064710/high-court-allows-some-companies-to-opt-out-contraceptives-mandate

Hobby Lobby is the only crafts store within 100 miles of our house, and they will never get another dime from us. There are two Michaels stores which carry similar merchandise in El Paso, so if we need to we'll drive the extra distance. I would LOVE to see Michaels advertise 'We offer contraception to our employees!' and start poaching people from HL. If I were running Michaels and had the money, I'd do the Lowes Home Improvement attack on Home Depot: open a Michaels store as close as possible to every Hobby Lobby that I could.


In other SCOTUS news, last Thursday they struck down a Massachusetts law that created a 35' buffer zone around businesses that offer abortion services. Curiously, it was a unanimous decision, but the reasoning was far from unanimous. It's likely that the Massachusetts legislature could pass a new law that's smaller, but the decision could potentially be used as leverage to attack other state's laws, we'll see how soon other law suits start getting filed.

http://www.npr.org/blogs/thetwo-way/2014/06/26/325806464/states-cant-mandate-buffer-zones-around-abortion-clinics-high-court-says


Aside from being nigh unto technologically illiterate, the Supreme Court is also an amazing example of the Compassionate Conservative.
thewayne: (Cyranose)
There's a lot going on here, which is why I didn't post about it as soon as it became news. First, the good news. The police must now usually get a search warrant to search the phone of a person whom they arrest. There are a couple of exceptions, such as fear of evidence being remotely deleted or exigent circumstances, like if you're a suspect in a kidnapping. Most of the time those exceptions won't apply.

But that doesn't mean your data is sacrosanct. Consider what's going on in Florida, where stingray devices are being used to impersonate cell towers and are being used with impunity, usually without getting a search warrant. Police can still subpoena data from your cell provider, then again, at that point they've gone through legal channels and theoretically demonstrated probable cause. It's possible that at that point that searching your phone is irrelevant and just done for form's sake.

Still, it is a good thing. It's good to know that the Supremes recognize that cell phones, and smart phones in particular, are incredibly personal and hold a huge amount of sensitive information.

http://www.npr.org/blogs/thetwo-way/2014/06/25/325497536/high-court-says-police-need-a-warrant-for-most-cellphone-searches


So what happens if you are stopped and/or arrested and police try to search your phone without a warrant? Let's face it, there's not much that you can do to stop it, the threat or use of physical force would be really stupid at that point. The two best things to do is to (A) lock your phone before your arrest if you can, and (B) loudly proclaim as often as possible, preferably in front of witnesses, "I do not consent to that search." Even if police ask you a yes/no question whether they can search your phone, reply with 'I do not consent'. They're good at asking double-negative questions, such as 'You don't mind if I search your phone, do you?' How do you answer that? Answering either yes or no can be construed as consent, as can not answering. So answer 'I do not consent to this search.' Same thing goes with your car, if police want to search your car you should not consent and force them to get a proper warrant with proof of probable cause.

http://www.dailydot.com/politics/stop-police-phone-search-warrant-warrantless-illegal/


Here's some info on exceptions that can allow police to search your phone:
http://fivethirtyeight.com/datalab/police-can-get-access-to-your-cellphone-data-even-after-the-supreme-court-ruling/


But if there's one thing that this case has confirmed. Something which has been demonstrated time and again, is that the Supreme Court is very weak when it comes to understanding technology. One Justice was baffled that some people might carry more than one cell phone. I did that for work when I was on-call, until I asked 'Can I just forward the on-call phone to my cell?' Apparently no one, including management had thought of that. One Justice while hearing a case about patents and Ebay, suggested that he could program something like Ebay given a weekend, because it was just pictures and prices.

The Supreme Court didn't have a photocopier for 50 years after its invention. They don't use email much, and only do audio recordings of their public deliberations. They are techno-Luddites.

Part of the problem is that they are trained to reason via analogy, and that process is breaking down big-time. From the article: "... In past arguments, computers were analogized to typewriters, phone books and calculators. Video games were compared to films, comic books and Grimm’s fairy tales. Text messages were analogized to letters to the editor. A risk-hedging method was compared to horse-training and the alphabet. EBay was likened to a Ferris wheel, and also to the process of introducing a baker to a grocer. The list goes on. Scary stuff.

http://www.salon.com/2014/06/28/the_supreme_courts_baffling_tech_illiteracy_is_becoming_a_big_problem/
thewayne: (Cyranose)
This is interesting. One case involve an appeal from a man convicted of involvement of a gang shooting. He was pulled over for expired tags on his car, and a field search of his phone found pix of him posing in front of a car used in a shooting. The other is the case of a convicted drug dealer whose phone tied him to his house, where drugs were found. The interesting point of the latter is that it was not a smartphone.

In the case of the former, I don't think the police had probable cause to search the phone, they definitely didn't have a 'hot pursuit' basis such as in a kidnapping or Amber Alert. In the second, they had probable cause to subpoena telephone records, so why didn't they?

The basic problem is that smart phones are our lives. The cops can't search computers without a warrant, they shouldn't be able to search phones either.

The Court will hear oral arguments in April and issue a ruling by the end of June.

http://ca.news.yahoo.com/u-supreme-court-weigh-cell-phone-searches-police-194336271.html

http://mobile.slashdot.org/story/14/01/18/0152222/scotus-to-weigh-smartphone-searches-by-police
thewayne: (Cyranose)
Interesting story. Guy steals woman's purse, then begins stalking her. She recognizes his car in the neighborhood, tells a cop, they get a district attorney to issue a subpoena to the phone company for a pen recording on the guy's phone line. Snatcher is arrested, sentenced to a decade in prison. Appeals ultimately to the Supreme Court that the phone calls were protected info under the 4th Amendment, SCOTUS says it ain't and that any records transmitted to a business are not protected.

Thus all Americans and most people around the world get spied upon wholesale by the United States government.

http://www.wired.com/threatlevel/2013/10/nsa-smith-purse-snatching/
thewayne: (Cyranose)
This has been a long time coming, now the state fights will probably multiply like the flood of statements yesterday when part of the Civil Rights Act were thrown out.

I particularly liked this part: "In his dissent, Scalia said the court was exercising too much power and should not have even decided the case because Windsor had won in the lower courts “and so cured her injury.”

“That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive,” he wrote. “It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere ‘primary’ in its role.”"


I guess Scalia doesn't think that what the Court did in Citizen's United was not exercising too much power. But Scalia won't talk about CU, when it's brought up in public Q&A he says 'get over it!'.

The article says 17 states currently allow same-sex marriage. But 31 have constitutional bans against gay marriage or some flavor thereof. So this is just beginning, but now has a Federal basis opposing it.

http://www.wired.com/threatlevel/2013/06/scotus-same-sex-marriage/

http://en.wikipedia.org/wiki/List_of_U.S._state_constitutional_amendments_banning_same-sex_unions_by_type
thewayne: (Cyranose)
YES! And a unanimous ruling! It's always been understood that things in nature cannot be patented, I don't know why the patent office didn't reject applications like this from the beginning. But it's well-known that the U.S. patent office is underfunded and understaffed and unable to keep up with the rapid rate of change in new tech fields.

http://yro.slashdot.org/story/13/06/13/1550225/supreme-court-no-patents-for-natural-dna-sequences
thewayne: (Cyranose)
Definite YAY. I buy lots of books, movies, and music second-hand.

The basic story is that a guy from Thailand(?) discovered that, while he was going to university there, books were cheap. He came to the U.S. to complete his degree, and found that the same cheap book was VERY expensive over here. So he set up an import business where his relatives there would buy and ship books to him here, which he would sell.

He was sued by John Wiley & Co., publisher, and judged against, and ordered to pay a fine of $600,000. His appeals finally got to the SCOTUS, where it decided 6-3 for him.

A SCOTUS decision against him could have devastating ripples throughout the economy. Say goodbye to a bulk of eBay. Favorite used book stores would die. Potential problems for public libraries lending DVDs and music.

I'm sure Wiley et al will be all over DC, lobbying for new legislation. I really hope they continue to fail and First Sale Doctrine continues to be upheld.

I don't think that I'll ever understand the book industry. I find a nice book on Python 3 and it's $45. I look at Amazon, and it's $30. I think tech books of all disciplines are the worst offenders.

http://www.wired.com/threatlevel/2013/03/scotus-first-sale-decision/
thewayne: (Cyranose)
"It's well known that Roberts, unfortunately for him, has suffered from epileptic seizures. Therefore he has been on medication. Neurologists will tell you that medication used for seizure disorders, such as epilepsy, can introduce mental slowing, forgetfulness and other cognitive problems. And if you look at Roberts' writings you can see the cognitive disassociation in what he is saying."
—radio host Michael Savage

And am looking forward to seeing more excuse-making why it should be repealed.

And for another quote:


"Just because a couple of people on the Supreme Court declare something to be 'constitutional' does not make it so."
—Rand Paul

Sorry, the core of the job of the SCOTUS means that if a majority decides it is constitutional, it's constitutional until the law is rewritten or repealed.
thewayne: (Default)
"The Supreme Court issued a unanimous opinion yesterday holding that 'to transform an unpatentable law of nature into a patent-eligible application of such a law, a patent must do more than simply state the law of nature while adding the words "apply it."' The Court invalidated a patent on the process of adjusting medication dosage based on the levels of specific metabolites in the patient's blood. The opinion sets forth a process for determining patent eligibility for patent claims that include a law of nature. The court wrote that the "additional features" that show an application of the law must "provide practical assurance that the [claimed] process is more than a drafting effort." This language suggests that the burden will be on the patentee to prove that its limitations are more than patent attorney tricks.'"

This is a good thing, but it probably doesn't automatically 'un-grant' such existing types of patents. But with SCOTUS saying no, challenging them and getting them cancelled should be easier and less expensive.

http://science.slashdot.org/story/12/03/21/1647234/supreme-court-limits-patents-based-on-laws-of-nature
thewayne: (Default)
"In all, five justices said physically attaching the GPS device to the underside of a car amounted to a search requiring a warrant. Four justices, however, said the prolonged GPS surveillance in this case — a month — amounted to a search requiring a warrant, but was silent on whether GPS monitoring for shorter periods would require a warrant. All nine justices agreed to toss a District of Columbia drug dealer’s life sentence who was the subject of a warrantless, 28-day surveillance via GPS."

I'm curious if they threw out the drug dealer's case entirely or just the sentence, and whether or not it can be re-tried again without the GPS evidence.

Aside from the privacy implications, I think the thing that bothers me the most is technology replacing "good ol' fashioned police work." I was on the jury for one trial, and it was a drug bust. Guy was charged with three counts of selling marijuana to a minor, one count of selling. It was all to the same informant (whom the police had busted and turned to get at the defendant), but the informant turned 18 during the scope of the investigation. The prosecution had fingerprints, photographs, witness testimony, etc., and we convicted the defendant on three of the four counts. Of course, the whole case was screwy from the start: the lead detective's sister (caucasian) was dating the defendant (black) in Morman Mesa. We the jury wondered if the defendant would have been pursued quite so vigorously if he hadn't been involved with the detective's sister.

http://www.wired.com/threatlevel/2012/01/scotus-gps-ruling/
thewayne: (Default)
Case in Florida where a drug-sniffing dog, outside of someone's house, alerted, so the cops got a warrant and raided the house, finding drugs.

The issue is whether the dog was an unreasonable detection device. There were cases in California where police used thermal imaging cameras to detect hot rooms in residences where people were using heat lamps to grow pot. It was ruled to be an invasive search mechanism and the cases were thrown out. The defendant is claiming that the dog is a similar such device.

A comment posted the obvious counter-move: toss unused/scrap/dregs marijuana in front of other people's houses to increase the rate of false positives. I'd be sure to include the houses of the mayor and police chief if I did such a thing.

http://www.wired.com/threatlevel/2012/01/scotus-dog-sniffing-case/
thewayne: (Default)
I'm not quite sure what to make of this.

"The Ninth Circuit yesterday issued two decisions in the Electronic Frontier Foundation's lawsuits against the National Security Agency (Jewel v. NSA) and the telecommunications companies (Hepting v. AT&T). EFF had argued in Hepting that the retroactive immunity passed by Congress was unconstitutional. The Ninth Circuit decision (PDF) upholds the immunity and the district court's dismissal of the case. Short of an appeal to the U.S. Supreme Court, this effectively ends the suit against the telecoms. In much better news, the same panel issued a decision (PDF) reversing the dismissal of the lawsuit against the N.S.A. and remanded the case back to the lower court for more proceedings. These cases have been previously discussed here."

So simultaneously the 9th ruled that Bush's/Congress's retroactive immunity for telco's was legal, and that the case accusing the govt of funneling all communications through NSA monitoring should be sent back to a lower court.

Why do I think a filing with the SCOTUS is not far away?

http://www.wired.com/threatlevel/2011/12/dragnet-surveillance-case/

http://yro.slashdot.org/story/11/12/30/1549228/warrantless-wiretapping-decisions-issued-by-ninth-circuit-court
thewayne: (Default)
The summary from Slashdot says it so well.

"A case before the U.S. Supreme Court Wednesday addressed the legality of medical patents. From the article: 'The case focuses on a patent that covers the concept of adjusting the dosage of a drug, thiopurine, based on the concentration of a particular chemical (called a metabolite) in the patient's blood. The patent does not cover the drug itself—that patent expired years ago—nor does it cover any specific machine or procedure for measuring the metabolite level. Rather, it covers the idea that particular levels of the chemical "indicate a need" to raise or lower the drug dosage. The patent holder, Prometheus Labs, offers a thiopurine testing product. It sued the Mayo Clinic when the latter announced it would offer its own, competing thiopurine test. But Prometheus claims much more than its specific testing process. It claims a physician administering thiopurine to a patient can infringe its patent merely by being aware of the scientific correlation disclosed in the patent—even if the doctor doesn't act on the patent's recommendations.'"

http://science.slashdot.org/story/11/12/08/041253/supreme-court-legitimizing-medical-patents

I think I'll patent the process that if you're hot, you might need to take some clothes off or go to a cooler location.
thewayne: (Default)
The Feds want unfettered access, claiming that "...a person has no reasonable expectation of privacy in his movements from one place to another...". I believe that there is no reasonable expectation of privacy in public, in that, if I overhear an adult talking about having sex with a 14 year old, I'll notify the police. I expect that I'll probably have my picture taken without my knowledge when I'm in public or in a store. But there's no need for the government knowing where I'm driving to and from WITHOUT A WARRANT AND PROBABLE CAUSE.

http://www.wired.com/threatlevel/2011/11/gps-tracking-flourishes/all/1


Roger Easton, the principal inventor of GPS technology, is urging the Supreme Court to not allow such warrantless tracking. "Easton, now 90 and the principal inventor and developer of the Timation Satellite Navigation System at the Naval Research Laboratory more than five decades ago, and the others are telling the high court that its precedent on the topic is outdated, and the government’s reliance on it should be rejected." The case in question involves an appeal by a drug dealer whose movements were tracked without a warrant, whenever he stopped somewhere that could potentially be a cache, the cops got a warrant to search that site for drugs.

http://www.wired.com/threatlevel/2011/10/gps-inventor-surveillance/


This is not good. Our location is already constantly monitored by our cell phones, I think the FBI needs to step up their investigations a notch and follow the laws that everyone else has to follow.
thewayne: (Default)
The Executive Branch has been able to shut down lawsuits by claiming the State Secrets privilege, but the SCOTUS has put an interesting limitation on it. The Feds sued two defense contractors seeking monetary rewards for a failed stealth airplane project, but they wouldn't release secrets that the defendants could use in their defense. SCOTUS ruled that you can't have it both ways: release the secret or you can't get monetary damages.

http://www.wired.com/threatlevel/2011/05/state-secrets-stealth-bomber/
thewayne: (Default)
Basically, they've bought extreme access to some lawmakers to get a bill introduced saying that there are illegal disc pressing plants (where music CD's and movie DVD's are made) that are churning out a Sagan or two of illegal pirated material and costing Hollywood a Sagan or three, and this law will allow law enforcement to raid pressing plants without a warrant and they can seize equipment.

http://www.wired.com/threatlevel/2011/05/riaa-warrantless-seizures/

I freely admit that piracy is a problem. But I think the ??AA are blowing their problems with piracy totally out of the water. How can Hollywood consistently post record movie box office receipts if they're losing a brazillian dollars to pirates? It don't compute. But this is entirely overboard: if they suspect a plant is illegally pressing discs, then they should report it to law enforcement who can perform surveillance to establish the facts, they can then get a search warrant and raid the place if the evidence merits it. Conducting a raid without a warrant is beyond the pale and I doubt there's any way that such a law would survive challenge.


Meanwhile, the Supreme Court rules 8-1 that in a case where police kicked in a door, without a warrant, and caught the people in the apartment with drugs, that it was not an illegal search.

WHEEEE!

http://www.wired.com/threatlevel/2011/05/warrantless-house-search/
thewayne: (Default)
Kathy Thomas knew she was under surveillance. The animal rights and environmental activist had been trailed daily by cops over several months, and had even been stopped on occasion by police and FBI agents.

But when the surveillance seemed to halt suddenly in mid-2005 after she confronted one of the agents, she thought it was all over. Months went by without a peep from the FBI surveillance teams that had been tracking her in undercover vehicles and helicopters. That’s when it occurred to her to check her car.


Basically, the FBI is arguing that this is no different than someone who happens to observe you driving to locations X, Y, and Z. Except this is a precise plot of your activities throughout an extended period of time: what church you go to, where your mistress lives, what AA chapter you meet at, etc. So the FBI doesn't want to have to ask for a warrant in order to plant one of these things on your car. Neither does the White House. They're asking SCOTUS to uphold their interpretation and not require warrants for such things as a lower court ruled that a warrant must be obtained before planting such a device.

It boils down to it being a manpower saver for the FBI, plant one of these things and log what it reports. They don't have to tie up multiple agents to follow a suspect.

http://www.wired.com/threatlevel/2011/05/gps/

A tear-down of a GPS tracker: http://www.wired.com/threatlevel/2011/05/gps-gallery/?pid=89&viewall=true

Video: the dissection of a GPS tracker: http://www.wired.com/threatlevel/2011/05/gps-video/

How to check your car for a GPS tracker: http://www.wired.com/threatlevel/2011/05/check-your-car-for-a-gps-tracker/

http://yro.slashdot.org/story/11/05/09/1415258/Battle-Brews-Over-FBIs-Warrantless-GPS-Tracking


Someone noted in a Wired comment that there is a car insurance company that offers a discount if you have a tracker installed. They wondered if there would come a time when your rates would go up if you didn't have one. And then the data sharing would begin.
thewayne: (Default)
The Supreme Court just held up on appeal that contracts that state that arbitration must be used instead of lawsuits is solid. A couple in California sued AT&T for being charged sales tax on “free” phones. It went back and forth in the courts until it worked its way up to SCOTUS, which sided with AT&T.

I'll bet Sony heaved a huge sigh of relief when they heard about this, assuming they have such a clause in their PSN legalese.

http://arstechnica.com/tech-policy/news/2011/04/scotus-rules-att-can-force-arbitration-block-class-action-suits.ars

http://yro.slashdot.org/story/11/04/28/1948247/Supreme-Court-ATampT-Can-Force-Arbitration

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