This is absolutely mind boggling.

In 2005, Jamie Leigh Jones was gang-raped by her co-workers while she was working for Halliburton/KBR in Baghdad... Jones was prevented from bringing charges in court against KBR because her employment contract stipulated that sexual assault allegations would only be heard in private arbitration.

Seriously!? In my time I've seen many examples of lawyers abusing the imbalanced negotiating position present in employment contacts but this takes the cake. An agreement not to press charges for rape? Are you fucking kidding me?!

Sen. Al Franken (D-MN) proposed an amendment to the 2010 Defense Appropriations bill that would withhold defense contracts from companies like KBR “if they restrict their employees from taking workplace sexual assault, battery and discrimination cases to court.”

On the Senate floor, Sen. Jeff Sessions (R-AL) spoke against the amendment, calling it “a political attack directed at Halliburton.” In the end, Franken won the debate. His amendment passed by a 68-30 vote, earning the support of 10 Republican senators including that of newly-minted Florida Sen. George LeMieux.

30 United States Senators voted against this? What could the basis of their opposition possibly be? Al Franken is not above political grandstanding at all, but when push comes to shove, why would you oppose this? I've searched on Google for an alternative perspective to no avail. Does anyone know a source where these people have articulated their position? As LeMieux put it:

"I can't see in any circumstance that a woman who was a victim of sexual assault shouldn't have her right to go to court."

If anything Franken's amendment does not go far enough. This is prima facie evidence that there is a serious structural problem with employment contracts. No contract clause of this sort ought to be respected in any context relevant to US law and major reform of rules surrounding US employment contracts is needed.

People who voted against this amendment include:
Alexander (R-TN)
Bond (R-MO)
Chambliss (R-GA)
Corker (R-TN)
Isakson (R-GA)

The Halliburton/KBR employment contract rape clause.

A SCOTUS case on the Docket this year relates to business method patents, which has caused a slew of amicus briefs from anti-software patent organizations. This article links to one of them.

I'll admit to not having given this question a thorough analysis but my inclination has always been that the anti-software patent crowd was too radical. There are obviously some serious problems with the patent system as it relates to the computer industry. Patents take too long to get and they last too long. Its too easy to get a patent on something that you aren't actually selling or even things you can't actually build, and so there is a big problem with patent trolls scooping up patents for futuristic concepts that haven't really been created yet and they certainly didn't create, later suing when someone else actually reduces them to practice. These are all policy issues that deserve attention.

On the other hand, patents play an important roll in the software startup space, where they serve as a proof point that a new company has a real technological innovation and investors have a real asset that they've purchased with their money. It is not fair to say that software patents only hinder innovation - they both hinder and help it - and furthermore I think a lot of that hinderance could be addressed if there was sufficient effort to do so.

A lot of time and advocacy that could go toward building a better patent system for software has been instead spent on eliminating software patents. To me, concluding that "software" as an embodiment of ideas is beyond patenting is to argue that patents should not exist at all in any domain, and I think that is the real goal of many of those who oppose software patents.

All engineering is the reduction of principals to practice. What difference does it make if that reduction occurs in a microprocessor or in a test tube? If we cannot see where the line is between science and engineering in the practice of computing it is because we haven't sought to find it. We deliberately mislabel most academic software engineering programs as "computer science" when they are doing nothing of the sort. If software is, indeed, truly special, it makes more sense to craft our policy in such a way that the concept of a patent works consistently across all domains of engineering, rather than to create an inconsistent policy environment by exempting software in order to uphold ancient distinctions that our advancing knowledge has blurred.

In any event, I would guess that the court will deliberately avoid engaging the question and narrowly limit their conclusion to business methods, which is the matter at hand. There will be a lot of hand wringing on Slashdot, and that will be the end of it.

Groklaw - SFLC files Bilski brief: Software should not be patentable and don't forget the 1st Amendment

In a recent blog post, which you cannot read because it was censored by a DMCA takedown notice from Texas Instruments, I used the term "Angry Mob Cryptanalysis" to refer to a situation in which a distributed key cracking effort is targeted at a public key that is widely known and widely resented. This term has an origin in the annals of computer security research and my use of it might be misunderstood so I felt that I should elaborate.

Matt Blaze originally coined the term "Angry Mob Cryptanalysis" in a paper he wrote back in 1996 about government key escrow. The term and its origin are burned into my brain because I recall being excited at the prospect - a democratic check upon communications security!

In Blaze's paper a person would broadly distribute shards of his private key. If that person was later accused of a crime the police might issue a public call for shards. If a large number of people were sympathetic to the call they might reveal their shards, allowing the police to proceed with monitoring that person. Its sort of like replacing judicial warrants with a grand jury system, enforced with hard mathematical constraints that cannot be subverted. If the police want to intrude upon someone's privacy they'd have to convince a large enough group of people in the community in order to do so. A very interesting and brilliant idea with numerous variations.

But if you think about it, every key faces a threat to its security from the general public in a world where distributed key cracking efforts can be organized, regardless of whether the creator of that key intentionally escrowed it with the public in the first place. I think the term "Angry Mob Cryptanalysis" is fitting in any situation where there is a public effort to crack a key. Its a risk that designers of crypto systems need to consider - how widely distributed is your public key, what is the key strength, and how much public resentment might exist about it? If the key is weak enough and the resentment high enough, you might fall victim to a public cracking effort.

A perfect example of a place where this might be useful is the context of a computer worm like Conficker. Conficker.B currently controls about 5 million hosts on the Internet, and the security experts who monitor it are concerned that those infected nodes represent a collective threat to Internet security. For example, they could be used to launch denial of service attacks if the Conficker bot master was able to update them. Fortunately, the bot master is blocked through a daily effort by members of the Conficker Working Group to contro... [ Read More (0.2k in body) ]

On the definition of 'Angry Mob Cryptanalysis'

The new Obama flavor laptop border search policy makes an interesting statement about reasonable suspicion and terrorist watch lists:

The presence of an individual on a government-operated and government-vetted terrorist watch list will be sufficient to create reasonable suspicion of activities in violation of the laws enforced by CBP.

Objectively, I'm inclined to agree, and I'm glad they drew this line in the sand, as its an important negotiating point with regard to when searches should and should not be authorized. If you think about the way that reasonable suspicion is used by police officers in deciding whether or not to stop someone, clearly "suspect matched the description of a wanted felon" is sufficient to establish that, even if it later turns out of be a case of mistaken identity. A terrorist watch list is a similar kind of thing. If the United States had a real process for flagging people who are genuinely suspected terrorists, I'm sure that being flagged by that system would meet the criteria for reasonable suspicion.

I think that employing terrorist watch lists and passenger screening systems in making determinations about reasonable suspicion in the context of border searches is a good thing. It eliminates the rhetorical argument that if we constrained border searches of laptops to contexts where reasonable suspicion exists, we might miss a terrorist. People who are likely to be terrorists are going to be flagged by these systems, and so reasonable suspicion is going to exist in those cases. Therefore, requiring it would not hamper our anti-terrorism efforts.

However, it is possible to imagine a "terrorist watch list" that is so mismanaged that it is not objectively reasonable to suspect that people on the list might be involved with terrorism. Unfortunately, it sounds like that is exactly the kind of list that we have right now. A list with 1.2 million names on it including people who are dead, vague entries that seem to only include common place names, and people who are obviously not involved in terrorism. If the ACLU's characterization of this list is anywhere near accurate, the list is a complete joke. It simply is not objectively reasonable to suspect that someone on this list is dangerous.

Two implications follow from that:
1. If the list is ever used in a real prosecution to establish reasonable suspicion of someone who does not turn out to be a terrorist but is prosecuted for some unrelated crime, that person might be able to challenge the reasonableness of that suspicion because the list is too unreliable.

2. It would behoove those who wish to make use of these lists in this fashion to make sure that they are reliable, so the courts will take them seriously when they are relied on in a context where they run up against Constitutional rights.

Reasonable Suspicion and Terrorist Watch Lists

I've read the case and I don't think I'm over-reacting at all. There seems to be a serious disagreement of fact between the justices as to how substantial this person's likelihood of success is. Its impossible to evaluate without more information. But thats not wants important. What's important is the underlying question of whether a person who is actually innocent must be executed because the procedure says that is what is supposed to happen.

Scalia certainly seems to welcome that debate:

If this Court thinks it possible that capital convictions obtained in full compliance with law can never be final, but are always subject to being set aside by federal courts for the reason of “actual innocence,” it should set this case on our own docket so that we can (if necessary) resolve that question.

As I previously stated, there should be no debate about that. The answer is yes.

Stevens writes:

Imagine a petitioner in Davis’s situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man. The dissent’s reasoning would allow such a petitioner to be put to death nonetheless. The Court correctly refuses to endorse such reasoning.

Good.

Hearing on innocence claim ordered | SCOTUSblog

Is this a crazy view?

Mr Sullivan,

I'm not sure what Conor Clarke's email address is so I'm emailing you. Mr. Clarke suggests that Scalia and Thomas are not crazy in holding the view that federal courts are powerless to help a convicted but demonstrably innocent death row inmate.

I think this is one of those moments when there is a clear division between right and wrong. The basic principle that the United States of America does not execute people who are demonstrably innocent should not be subject to debate. We must not become so committed to upholding our procedural rules that we contemplate killing innocent people simply because that is what the rules say that we are supposed to do. In such a case, it is the rules that must bend, and it is the responsibility of everyone involved to ensure that they are bent. The alternative is simply evil and history should have taught us all that lesson by now.

Reasonable people can disagree in such a case about exactly how the rules ought to be bent, but this passage in the dissent seems to reach toward the conclusion that they cannot and must not be bent, and that position is simply wrong and incompatible with life in a mature and free society that recognizes the fallibility of human institutions.

Thank you,
Tom Cross
Atlanta, GA

RE: Why Justice Scalia Wants to Execute the Innocent

There seems to be two opinion camps with regard to this Gates affair.

1. Racial: Gates was arrested because he was black - a white person in similar circumstances would not have been arrested. This speaks to the racism in this country.

2. Authoritarian: Gates was not arrested because he was black - he was arrested because he talked back to the police, as well he should be. People who don't respect the authority of the police deserve whats coming to them.

My perspective falls into a third column:

3. Gates was not arrested because he was black - he was arrested because he talked back to the police. The police ought to understand that someone whose house has been broken into is going to be in an agitated state, particularly if they are confronted with an officer of the law who at least initially thinks they might be the criminals who did the break-in.

I agree with Obama's observation that:

The Cambridge police acted stupidly in arresting somebody when there was already proof that they were in their own home.

This was petty muscle flexing on the part of the officers. This is not a racial issue. This sort of unnecessary exercise of power by government officials is an everyday problem that occurs in all kinds of different contexts.

I don't understand why none of the public commentary on this issue that I've seen takes this position. Its interesting to see the President speak out on something like this, but inevitably the policy responses will be targeted at solving the wrong problem.

BBC NEWS | Americas | Black scholar arrest angers Obama

The parliament justly thought, that the king was too eminent a magistrate to be trusted with discretionary power, which he might so easily turn to the destruction of liberty. And in the event it has hitherto been found, that, though some sensible inconveniences arise from the maxim of adhering strictly to law, yet the advantages overbalance them, and should render the English grateful to the memory of their ancestors, who, after repeated contests, at last established that noble, though dangerous, principle.

From Hume's History of England

Obama and Clinton are buying into a bottomed-out market vis-à-vis America’s position in the world. It is as if they will be buying stock after the market has crashed, and just at the point when a number of factors are already set in motion for a recovery. For President George W. Bush did not just damage America’s position in the world, he has also, over the past two years, quietly repositioned himself as a realist in foreign policy, and that, coupled with a bold new strategy in Iraq, known as the “surge,” has poised America for a diplomatic rebound, which the next administration will get the credit for carrying out.

I have to say I find that reasoning persuasive, although it is absolute heresy to the left. I wish Obama could have kept Condoleezza Rice on as Secretary of State. In retrospect, I think I think I have more respect for her than anyone else in the Bush Administration. As for having Hillary in that role. Well, hrm, ok, maybe, we'll see...

Obama's Foreign Policy: Buying in at the Bottom - The Atlantic (November 25, 2008)

Worthersee wrote:

:) I used to have this on my cube at work.

RE: Smoky The Nanobot