Friday, May 19, 2006

Al Gore trying to save the Earth ... again.

Again, the former Vice-President and defeated Democratic candidate for the presidency is trying to save the Earth. Doesn't he know that we are doomed? If not, then he should watch his own stupid movie he helped to promote.

Tuesday, May 16, 2006

Practice: Who needs it?

"Practice? Is that what we're talkin about here? Practice? Not the game. Not the game that I go out and die for every night. Practice. Practice? Is that what we're talkin about?"

Friday, May 12, 2006

Why does the Constitution and due process matter?

Ok, I have been hearing a lot of discussion about the NSA program and why it should exist. The basic theory runs something like this:
I think that regardless of whether or not it is legal it should be done. After 911, we learned that oceans cannot protect us. There are people out there who want to kill us all. This is a small price to pay. Frankly, I think it would be best if the government listened to all of our phone calls, foreign and domestc. We are at war. Those who oppose having their phone calls monitored -- what are they hiding? The government is welcome to listen to all of my phone calls anytime it wants to -- all they will learn is that I love my country and hate terrorists.
Leaving the emotional argument aside, I must say lots of discussions about government are structural (due process right etc.) in precisely the sense that I argue below--we worry about concentrating certain powers into the hands of certain governmental entities without sufficient oversight and regulation, because we are worried about the potential for abuse of that power. And those worries are grounded in our long history with governments, which does in fact suggest that sweeping governmental powers without oversight and regulation are frequently abused by the people who hold such powers.

Accordingly, we try to place structures in place to prevent that sort of thing from happening. Indeed, that is what much of our Constitution is about, and much of our laws as well. And in that sense we are trying to stop abuses of power before they happen, not simply address abuses of power after they happen.

So, when people in government start ignoring those structural limits, and try to concentrate power without oversight and regulation into their own hands, we reasonably get worried. And those worries need not depend on actually knowing that they have already abused those powers, because the point of those structures was to prevent abuse before it happens, not simply address it after the fact.

A Look at the NSA's Monitoring Program

We now have a slightly better idea of the factual and legal issues surrounding the newly-disclosed NSA Call Records program, and I thought I would offer an analysis of the program's legality. My tentative bottom line: The companies were probably violating the Stored Communications Act by disclosing the records to the NSA before the Patriot Act renewal in March 2006, although the new language in the Patriot Act renewal at least arguably made it more likely that the disclosure was legal under the emergency exception.

First, let's update the facts. It now looks relatively clear that the NSA was not directing the telephone companies to conduct any particular monitoring on the NSA's behalf. Rather, NSA officials were persuading the telephone companies to voluntarily disclose their call records to the government. In other words, the government wasn't actually doing the monitoring, but instead was encouraging the telephone companies to disclose call records to them that the telephone companies already had collected.

In light of those apparent facts, the key issue to me becomes whether the disclosures were permitted under the Stored Communications Act, and specificially 18 U.S.C. 2702. Telephone companies are providers of "electronic communications service to the public" under the Act, and the Act regulates when providers can disclose non-content records of account information to the government. The ban is in Section 2702(a)(3):
[A] provider of . . . electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications . . . ) to any governmental entity.
Of the possible exceptions to the statute, three are most likely to be relevant. They permit disclosure under the circumstances listed in 18 U.S.C. 2702(c), as amended by the Patriot Act renewal of 2006:
(2) with the lawful consent of the customer or subscriber;
(3) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;
(4) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency[.]
Let's take each of these exceptions in turn.

(1) The first exception permits disclosure if the subscriber consents. There are no cases interpreting eactly what consent means in 2702(c)(2), but like many of the exceptions in the SCA it is clearly a copy of an analogous exception in the close cousin of the SCA, the federal Wiretap Act, 18 U.S.C. 2510-22. We do have lots of cases on what consent means in the context of the Wiretap Act, so those cases presumably create the applicable standard here. The basic rule: Consent means that the user actually agreed to the action, either explicitly or implicitly based on the user's decision to proceed in light of actual notice. Here's what the First Circuit said on this in United States v. Lanoue, 71 F.3d 966, 981 (1st Cir. 1995):
Keeping in mind that implied consent is not constructive consent but 'consent in fact,' consent might be implied in spite of deficient notice, but only in a rare case where the court can conclude with assurance from surrounding circumstances that the party knowingly agreed to the surveillance. We emphasize that consent should not casually be inferred, particularly in a case of deficient notice. The surrounding circumstances must convincingly show that the party knew about and consented to the interception in spite of the lack of formal notice or deficient formal notice.
Did users consent to the disclosure under this standard? The Washington Post reports that government lawyers seemed to think so, based on small print in the Terms of Service of the telephone service customer agreements:
One government lawyer who has participated in negotiations with telecommunications providers said the Bush administration has argued that a company can turn over its entire database of customer records — and even the stored content of calls and e-mails — because customers "have consented to that" when they establish accounts. The fine print of many telephone and Internet service contracts includes catchall provisions, the lawyer said, authorizing the company to disclose such records to protect public safety or national security, or in compliance with a lawful government request. . . . Verizon's customer agreement, for example, acknowledges the company's 'duty under federal law to protect the confidentiality of information about the quantity, technical configuration, type, destination, and amount of your use of our service,' but it provides for exceptions to 'protect the safety of customers, employees or property.' Verizon will disclose confidential records, it says, "as required by law, legal process, or exigent circumstances."
This seems like a very unpersuasive argument in light of the cases construing consent under the Wiretap Act, of which the consent provision in the SCA is a mirror. It reminds me of the argument that a DOJ lawyer once tried to make that monitoring prison phones was allowed because language in the Code of Federal Regulations clearly notified prisoners that their phones would be monitored. According to the lawyer, the notice in the fine print of the CFR was sufficient to make the monitoring consensual. Judge Posner rejected the argument, calling it "the kind of argument that makes lawyers figures of fun to the lay community." United States v. Daniels, 902 F.2d 1238 (7th Cir. 1990). In light of these cases, I think the consent argument is weak.

(2) The next possible exception is disclosure "as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service." This is known as the provider exception, and is also a copy of an analogous exception from the Wiretap Act, 18 U.S.C. 2511(2)(a)(i). You can read all about this exception here: basically, it gives providers rights to disclose information to the government to help the providers combat illegal service and unauthorized use of the network. It seems pretty clear that this doesn't apply: The cases make clear that the provider exception exists to further provider interests, not government interests.

(3) The third and final exception is the emergency exception, which permits providers to disclose "if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency." At the outset, it's worth noticing something very interesting about this language: It is almost brand spanking new. The language that passed as part of the Patriot Act in 2001 allowed disclosure only when "the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information." This was the language in place from October 2001 until March 2006. Did the phone companies have such a belief under the 2001-06 language? I gather they had a reasonable belief of danger, but I don't know of a reason to think that they had a reasonable belief of "immediate" danger. If this was a program ongoing for several years, then it's hard to say that there was a continuing reasonable belief of immediate danger over that entire time.

As noted above, though, the Patriot Act renewal passed in March 2006 changed this language. And it did so in a way with potentially important implications for the legality of the NSA call records program. The new exception states that disclosure is permitted "if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency." Few people were paying attention to this change at the time, but I would guess that it was very important to the telephone companies: The change expanded the exception to allow disclosure when there is a good faith belief instead of a reasonable belief, and when there was a danger instead of an "immediate" danger. I wouldn't be surprised if the telephone companies were pushing the change in part out of concern for civil liability for their participation in the NSA call records program. (Or perhaps not, come to think of it: Does the new language suggest that the information disclosed needs to relate to the emergency to be covered? What if the provider doesn't know what information relates to the emergency?)

Thursday, May 11, 2006

Why people like the Democratic party

The truth is people hate favorites. Have not Rocky, the Mighty Ducks, the current incarnation of the Democratic Party taught us nothing? Everyone loves an underdog, because you are so sure that they are not going to succeed that when they do anything halfway decent it is a bigger accomplishment than when an expert does something phenomenal. It’s like letting a special needs kid play in a varsity football game. Even if he runs the ball to the wrong endzone we are happy that he was out there and didn't kill himself.

Wednesday, May 10, 2006

Overall First Round Breakdown

Houston- Mario Williams

Probably one of the worse selections of this year's draft. He reminds me of Eric Curry, DE, Alabama (6th pick by Bucs). The guy was just average during his first 6 games with the Wolfpack but then decided to play and became a monster. He will not be able to do that in the NFL.

New Orleans-Reggie

What can I say. Picked the best availble player despite having a pro-bowl type running back. They had to pick him. Bush is a once in a generation player who should have gone number 1.

Tennessee - Vince Young

Not a fan of stupid QBs. Guy has a lot of talent but might be one of the true idiots of this draft. Can't put together two sentences to save his life. The guy would have been lucky to earn a college degree unless Texas just gives them out down there.

N.Y. Jets - D. Ferguson

I like Ferg, but I have a huge Tony Mandarich fear. Picking OL players in the top five scares me but I think the Jets have a bookend tackle for years to come. I probably need to remember that Orlando Pace turned out very well for the St. Louis Rams.

Green Bay - A. J. Hawk

Great player. Isn't that tall (6'1"), but will do well because he is a football player first. Good at tackling, instinctive at running down the play, and finds space to make a play. Probably best part of his game is that he doesn't get locked up on blockers (which is a big problem for some of the more athletic linebackers ... Ray Lewis).

San Francisco - Vernon Davis -- See previous post

Oakland - Michael Huff

I love this guy. Very smart and great leader of a good Texas defense. Fast (4.37) and strong (21 reps of 225). I wished the 49ers would have gotten him but his combine workouts and his team interviews locked him up as a top 7 pick.

Buffalo - Donte Whitner

If it wasn't for Houston I would say Buffalo had the worse first round. Whitner was a huge reached at 7. Plus, passing up Leinart and Cutler when they need QB help is just crazy. I guess they are thinking they are picking first next year so they can get the ND QB. Idiots.


Detroit - Ernie Sims

Sims was rated higher than Hawk on alot of teams boards. I didn't get it because he wasn't as good of a player. Better number in terms of speed, strength, and height but Hawk was clearly the better player. Good pick for Detroit even if I think they might have been better off taking one of the two QBs. At least Sims wasn't a WR.

Arizona - Matt Leinart

Great pick for both player and team. This might be the best situation for a player to come into. I have never seen anything like this. He has great WRs, RB, and good o-line. Wonderful head coach as well. Top it all off, there is a vet QB who can start the season while Matt learns the system. Probably will be starting by the end of the year (or start of next).

St. Louis - Jay Cutler

Again, good pick. More moble than Leinart and better arm as well. McNair showed you dont' have to go to a big time program to be a good QB in the NFL. Cutler should do well in 2 or 3 years.

Baltimore - Haloti Ngata

Ray Lewis better be thanking the Ravens' front office for this pic. Ngata will take at least two blockers on every play which will free up Lewis to make plays. As most of the NFL knows, Lewis sucks at taking on blockers and gets lost in the play when two linemen and a fullback come up. He hasn't been the same since Tony retired after their last SB win.

Draft Edition: 49ers Grade

The San Francisco 49ers had a decent overall draft. Picking up Vernon Davis as both the BAP (best available player) and a need position worked well for them. In part, because they were able to trade back into the 1st rd and select a front seven player in Manny Lawson. 1st rd. grade I would give them an A-. The only problem with the round is Lawson's workout numbers. I think he might be another workout warrior who is a bust in the pros. With that said, Lawson was always around the ball and made as many plays as Mario Williams at NC State.

The rest of the draft, I would give the 49ers a B-. I loved the third round selection of Brandon Williams. The team needed a solid return guy that could also play as a fourth wideout. If he only returns kicks (and holds on to the ball), he will have done alot more than Jimmy Williams did all last year for the team. The next pick I did not like. Michael Robinson was a huge reached in the fourth round. He has talent. Great runnerback/QB for Penn State. There is no denying that he could run over people, but for a player who will have to switch positions (and noone knows what he will play), selecting him that high is a big risk when there were very good corners and LBs still on the board. Still, he might actually save the 49ers a roster spot if he becomes the team's third QB and RB.

Looking deeper into the draft, Parys Haralson was a good pick up at the DL. He will probably battle for a starting spot at OLB in the 49ers 3-4 defense. Delanie Walker, Marcus Hudson, and Vickiel Vaughn are either filling rosters spots or not even making the team. Vaughn shouldn't have been drafted. He was the best player on a horrible Arkansas team. Still he only had one good year and never lived up to the hype. Probably the most likely drafed player to be cut.

The 49ers 6th rd. pick of Melvin Oliver is interesting because out of all the later round selection s he is the only non "Nolan guy" (player with heart) pick. He has all the talent in the world, but only shows flahes of it. The guy is a no heart player who makes you want to kick him in the balls for not trying. The man reason Oliver was taken was for his "tweener" label. Too small to line up a DE but not fast enough to play a LB in a 4-3 defense. He is a perfect 3-4 "Sam" OLB. Has great size and ability to pass rush.

Spanish Anthem: Bad for Immigrants

The debate currently going on about the Spanish Anthem is just a small part in a larger education policy problem. I have personally seen the impact that liberal education policies have on young immigrant children. Many state politicians create these programs (and yes schools) that only teach classes in Spanish.

I will not deny that most of these policies were created with good intentions, but the road to despair is often paved with good intentions. For most students who are taught only Spanish they meet a world that they are not prepared to face. First, they will never be able to go to an American college without learning English. This means that they must spend time and money after high school to learn a tool (English) that their teachers should have given them. If they do not do this, then they will be forced to work in a profession that requires no communication skills or one that is not dominated by English speakers. In addition, English is the language of the well-off and rich. The one language used around the world for the transaction of business deals and other important events. If a set of people who want to be successful fail to learn English, they risk being marginalized before making it out the gate.

Second, without English most immigrants will have to rely on others to communicate to the English speaking world. This means placing their trust in the hands of others. Some of the worse frauds are commented by those of the same nationality or race. And because some Hispanic people know that these immigrants may not be legal, they bank on the fact that non will go to the police to report a crime. Heck, there a lot of people who kidnap illegals for money and know that there is no one who is going to stop them.

Finally, new Spanish immigrants (or illegals) should take a look at black history and see what a culture of exclusion does for one's race. Black people have continually disassociated themselves from whites and other groups. Politically, they advocate policies that promote racial gerrymandering for the simple reason to keep some corrupt black politicians in office. In addition, they blindly follow a political party that has done nothing but take their vote for granted. Spanish immigrants should be mindful that America is a nation of inclusion just as people who are already here should be accepting of others. Acceptence is a two-way street and while one party opens up its arms, the other cannot close its eyes and ears to the culture it is willingly coming into.

J.C. has game

Before you come out against illegals, think of the burritos!!!

Monday, May 08, 2006