Archives for April 2003

At least they have sham trials in Cuba

Thanks for visiting this blog for the first time. Check out the home page for the most recent posts, or the archives if you're looking for something in particular. Here are some of our favorite posts, which you might enjoy:

If you like what you see, we hope you'll consider subscribing to the RSS feed.

Bad-cop-in-chief John Ashcroft “ruled” yesterday that “Broad categories of foreigners who arrive in this country illegally can be detained indefinitely without consideration of their individual circumstances if immigration officials say their release would endanger national security,” according to The Washington Post.

And he doesn’t mean Saudis and Yemenis; he’s talking about Haitians and Cubans. Teased out, the theory goes something like this: continued mass migration is tying up the coast guard, which in turn can’t focus on other things, and this is a threat to national security.

Asked if locking up people indefinitely without hearings would constitute a violation of due process rights, Ashcroft said it wasn’t clear if asylum seekers had any. Well, if we ever figure out whether they do, we’ll at least know where to find them.

Apr 25, 2003 | 1 Comment

Where have all the weapons gone?

Thirty days later, there still isn’t any sign of WMD, and the Bush administration is starting to get nervous. So says The Washington Post today in a front page article. One “high-ranking official” said: “If such weapons or the means of making them have been removed from the centralized control of former Iraqi officials, then the war may prove to aggravate the proliferation threat that President Bush said he fought to forestall.”

What if Saddam, knowing he was going down no mater what, secretly destroyed all his WMD before he was attacked so the U.S. would be humiliated? Would he have given WMD to Al Qaeda or other terrorists to ensure eventual revenge on the Americans? Maybe the WMD was simply looted in the chaos after the attack? Could it find it’s way into Al Qaeda’s hands this way?

I like the first option. This would also explain why Saddam didn’t attack Israel. It would also fit with his desire to become a great Arab martyr.

Apr 22, 2003 | Comment

Taking exception to the exception

Raul Damas’ article in Brainwash today takes exception to some of the points I made in my article last week about Fidel Castro’s calculated crackdown on non-violent dissidents. Not to turn this into an infinite back-and-forth — because Raul and I agree on principle and I agree with everything else in his article — but I wanted to address the couple of points on which he challenges me directly.

First, Raul says that everyone understands that only Castro is responsible for the Cuban people’s economic hardship, so it’s silly to say that the embargo provides him an excuse for the consequences of his failed policies. But this is circular reasoning: “it’s not an excuse because people know it’s just an excuse.”

I would submit that there are many militants, on the island and off, who honestly believe the embargo is the root cause of the Cuban people’s hardship (in fact, it probably is the cause of at least some hardship owed to higher costs). More importantly, however, are the millions of intelligent but uninformed people around the world (especially in Europe, Canada, and the blue states here) who believe Castro, if misguided, is working for the people but is stymied by the U.S. Also, whether it’s a good excuse or not, the fact is Castro does use the embargo as an excuse in every one of his speeches. So, why allow him to have this excuse (especially since it comes at a cost to the American economy)? His policies would continue to fail.

Second, Raul writes, “While I strongly affirm the right of individuals to travel freely, I also believe in the right of our government to place restrictions on those freedoms in the name of a good higher than cheap sun, surf and child prostitution.” To this I would simply say that governments don’t have rights, only powers and that those powers stem from the consent of the governed. Last time I checked, we (via the Constitution) never gave Congress or the president the power to decide what are higher moral goods. If government where to decide that complete income equalization via redistribution was a “higher good” would Raul support government’s “right” to restrict his property rights?

Apr 21, 2003 | 2 Comments

Madonna: Self-help diva

Papa don't MP3.Hooray for Madonna. Although I’m not a huge fan of her music, I’ve always appreciated her persona. She impresses me again today by turning to freedom-friendly self-help to ward off MP3 downloads of her new album, American Life.

To stymie swappers, her record label has flooded sites with spoof MP3s of her new songs. The files are just as big as real MP3s, but when you play them all you get is the material girl asking, “What the fuck do you think you’re doing?” Brilliant.

The new record isn’t out until Tuesday, but M isn’t taking any chances. Apparently her last album was on the Net days before its release. This time music critics–whose review copies are the biggest leak–had to go to her publicist’s offices to have a listen. But you know only Madonna wields that kind of (market) power.

Predictably, MP3 brats who think artists should just lie down and not defend themselves are charaterizing the stunt as “foul-mouthed” Madonna insulting her loyal fans. Boo-hoo. They’ve never heard “fuck” before? Give me a break. As long as artists and their masters don’t push for banning technologies (like Napster), they’re right to use whatever self-help they can. I love MP3s more than most, but it’s sad kids are starting to think they have a right to free music.

Apr 19, 2003 | 4 Comments

Are spam laws so bad?

Poor Hormel foods. Who will pay for it's loss of goodwill??Not surprisingly timed to coincide with the introduction in the Senate of the “CAN-SPAM Act” (yes, that’s another cute acronym for a law: “Controlling the Assault of Non-Solicited Pornography and Marketing Act”), America Online filed a series of lawsuits in federal court earlier this week seeking injunctions and damages from spammers. These spammers were reported to AOL by their members using the new “Report Spam” feature in AOL 8.0. So is this a good thing?

First let’s say what these suits are not. They’re not breach of contract actions. That is, AOL is not suing its own members who violated the terms of their service agreement. It’ suing people with whom they have no privity and who merely sent AOL’s members some unwanted e-mail. So this isn’t completely a market solution.

What these suits are–and it’s amazing all the tech media have missed the boat on this–are trespass to chattels actions like Intel v. Hamidi, which is due for a decision from the California Supreme Court any day now. Trespass to chattels pretty much says: You e-mailed my system one billion unsolicited messages. That cost me $1 million to process, store, evade, delete, etc. That’s actual physical damage. Pay up and don’t do it again.

This is a very novel application of a very old doctrine with probably more cons than pros. This is fascinating, bleeding edge stuff and we’ll find out from Intel soon whether it’ll hold water. (I’ve previously written about it here. The best paper on the subject is Dan Burk’s “The Trouble With Trespass” [PDF].)

But what I want to focus on here are the other causes of action AOL uses. Besides trespass, AOL is suing under the Virginia Computer Crimes Act, the Federal Computer Fraud and Abuse Act, and the Washington Commercial Electronic Mail Act. My question is, are these laws so bad?

Now, I haven’t read them, but assuming all they do is ban unsolicited bulk e-mail, I’m not sure I would have a problem with that. The reason is that, unlike physical junk mail, there is a substantial cost to recipients of spam. By no means is spam going to clog the pipes and be the undoing of the Net as some have claimed, but the cost is there. The question then is whether it’s efficient for recipients to bear this cost.

We certainly think that with regular junk mail, it’s efficient to impose some of the cost on recipients (they have to toss mail they don’t want and opt-out of mailing lists they don’t want to be in). We don’t just ban it. This is because most people find junk mail useful and informative–at least more so than the cost of having to chuck most of it out every day. Our old friend the Coase Theorem says that when you can have two possible states of the world (opt-in or opt-out, allow or ban spam), you take the one with the lower transactions cost. Unlike junk mail, the cost to recipients of spam is more than any benefits. And the reason for this is likely that unlike junk mail, it costs spammers almost nothing to send their e-mails.

Something else I don’t have a problem with, the FTC sued a guy today for sending out porn spam with subject lines like, “What is wrong?” and “Fwd: You may want to reboot your computer.” This is fraud. And although I’d rather have private suits leading the way, I think the spammer deserves it.

The problem, of course, is that laws never just do something as simple as ban spam; they always do more. Although I realize that any ban ultimately has the force of the state behind it, I’m not sure how comfortable I am with criminal provisions like those in the proposed CAN-SPAM Act that would send spammers to jail for a year for including misleading header information in their e-mails.

I also don’t think that because it may be justified, laws are ever going to be the best way to get rid of spam. Again, it’s very easy and inexpensive to send spam, so suits aren’t going to stop all spammers. Luckily I’ve found a market solution that stops all–I mean all–spam I get. I never see any thanks to SpamNet for Outlook by Cloudmark.

Apr 18, 2003 | Comment

Right and wrong

My prediction that Iraq would Scud Israel was wrong. I was wrong about our troops getting gassed. At this point, I may even be wrong to think that Iraq has WMD at all. But I still don’t think I’m wrong about this war being a great recruitment poster for Al Qaeda. This is the kind of thing that will do the trick (from today’s NYT):

This morning, the ashes were still smoldering at the Ministry for Religious Affairs, where a building housing thousands of Korans, many of them illuminated and hand written, several a thousand years old, had been burned to a charred shell. It was another severe blow to Iraq’s 10,000 years of cultural history, along with the looting of the National Museum and the burning of the National Library, in which countless priceless artifacts and books were lost.

“When Baghdad fell to the Mongols in 1258, these books survived,” said Abdel Karim Anwar Obeid, 42, the ministry’s general manager for administration. “And now they didn’t survive. You can’t put a price on this loss.

“If you talk to any intellectual Muslims in the world, they are crying right now over this,” he added.

Apr 16, 2003 | Comment

Cuba’s opportunist purge

The poet and writer Raul Rivero was given a 20-year sentence, as was the economist Martha Beatriz Roque.Shortly after the war began, the Cuban government embarked on the widest purge of dissidents in a long while. They arrested almost 80 opposition leaders, reporters, poets, librarians, economists, and other free thinkers. Overdoing swiftness in justice, today Cuban “courts” began handing down prison sentences after closed-door trials. The lightest sentence was 15 years. The toughest was 27 for an independent journalist who went around Havana in a beat-up bicycle reporting what he saw to the outside world.

These people are now damned to a fate worse than death. I beg you to read Armando Valladares’ Against All Hope: A Memoir of Life in Castro’s Gulag. It will undoubtedly bring tears to your eyes.

And yet there are people in this country who defend Fidel Castro and his government. They ask, wouldn’t the U.S. government prosecute Americans working to overthrow the government here? It’s almost too preposterous to dignify this question with a response, but here goes.

First, from all press accounts (and I’ll take the international press’ word over the Cuban government’s any day) none of the dissidents engaged in anything but non-violent protest. If the U.S. would prosecute non-violent protesters for treason, it would be just as heinous as the Cuban regime. Even if the U.S. was no better, this wouldn’t justify Cuba’s crimes.

Second, like I said, the trials were quick and behind closed doors, which is indefensible in itself, but also means it’s hard to know what the charges were exactly. It seems the Cuban talking point is that dissidents were collaborating with U.S. diplomats in the island to subvert national security. The truth is that these dissidents are guilty of nothing more than voicing their opposition to Cuba’s one-party government. But even if they did meet with Americans and chatted about how much they hated the government and how best to peacefully change it, how is this a crime? In this country, for example, we have freedom of association � even with foreign nationals. Ask Al Gore, he’s met with several Chinese.

Sadly, Aryeh Neier is right right when he notes in the New York Times:

The list of arrests reads like a Who’s Who of Cuban civil society � with the obvious exception of those who were already in jail when the roundup started. They are the unsung heroes of a movement to liberate the minds of Cuba. But the names do not mean much to a world public now concentrated on becoming more and more expert on the latest in military equipment and on the geography of Iraq.

There is no serious defense of Castro’s regime. If this kind of repression is the price for alleged improvements in health and literacy, I don’t think they’re worth it.

Apr 7, 2003 | Comment

America speaks: More war, less tax cuts

Listening to initial reports that the war wasn’t going as smoothly as planned, I thought one good thing that might come from all of this might be a tempering of the Bush Administration’s future blood thirst. But leave it to the American people to egg them on.

A new L.A. Times poll shows that “more than three-fourths of Americans — including two-thirds of liberals and 70% of Democrats — now say they support the decision to go to war. And more than four-fifths of these war supporters say they still will back the military action even if allied forces don’t find evidence of weapons of mass destruction.” Even if they don’t find WMD?? I know they will, but geez, isn’t that what this whole war was about? How can you support something when it’s whole rationale falls through?

What’s worse is “half said the United States should take military action against Iran if it continues to move toward nuclear-weapon development; 36% disagreed.” Do people ever stop to ask themselves why Iran would feel compelled to arm itself so? Could it have anything to do with the fact that two countries they border have been taken over by Western forces?

Meanwhile, “a 2-to-1 majority said that, because of the war, the country cannot afford” Bush’s tax cut. An astonishing 62% think “the war is likely to make the world a safer place.” And Bush’s PR pièce de résistance:

Nearly eight in 10 Americans now accept the Bush administration’s contention — disputed by some experts — that Hussein has “close ties” to Al Qaeda (even 70% of Democrats agree). And 60% of Americans say they believe Hussein bears at least some responsibility for the Sept. 11, 2001, terrorist attacks — a charge even the administration hasn’t levied against him.

Apr 5, 2003 | Comment

New site design, GMU Law now ranked 40th

In case you haven’t noticed, I have completely redesigned this site. The blog is now on the home page like a normal Web site. Also, the whole site is now run completely out of Movable Type–everything, all the pages. (If I can create my own database-driven personal Web site, it’s amazing some large organizations can’t. Right, Paul? ;o) )

This change means greater flexibility. But it also means that all the content I had on the old side will have to be re-entered into the new database, which may take some time. Some links may not work for a while. So there you have it, enough boring computer crap. What do you think of the new look? Want to hire me?

In other news, my law school, the little university that could, George Mason, is now ranked 40th by U.S. News & World Report. This is an unprecedented jump of seven slots in one year! Chicago Jr. is making its way up! In contrast, American University dropped out of the top tier to 51st.

As you can imagine, we’re thrilled. My diploma is already appreciating and I don’t even have it yet. It helps to be the only law school with two professors on its faculty with Nobel Prizes (one received just this year). The only downside is that I will still be taking some first-year classes in the fall to catch up with the day division and this means I will be pit against the smart cookies from the entering class. Mason is now the second most selective school, beaten only by Yale. We get something like 5,000 applications for about 150 spots.

Apr 4, 2003 | Comment

  •  
  •