Gay Rights & Law & Privacy28 May 2008 12:26 pm

If you’re a straight person who thinks that the gay marriage issue isn’t really relevant to you, you should take a moment to consider one thing: The same people that have a big problem with what gay or lesbian people do behind closed doors have just as big a problem with what lots of straight people do behind closed doors.

I’m not talking wild and kinky stuff, like anything other than the missionary position. No, long before the religious right got up in arms about queers, they were trying to stop straight people from having non-procreative sex. And they were so successful that they had succeeded in banning the use of birth control in several states.

In Connecticut, there was a law that said: “Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.” Further, any doctor, pharmacist or other person who “assists, abets, counsels, causes, hires or commands another to commit” the offense could be prosecuted and punished in the same way.

In 1965, in a landmark case called Griswold v. Connecticut, the U.S. Supreme Court ruled that there was inherent in the U.S. Constitution a core of rights around which glowed “penumbras, formed by emanations from those guarantees that help give them life and substance.”

Although a right of privacy is not explicit in the Constitution, a broader right of privacy exists in the penumbra of rights like freedom of association, quartering of soldiers, prohibition on search and seizure, etc. In the judgment of a 7-2 majority of the court, the right of privacy extended to making decisions about whether or not you could attempt to control whether having sex resulted in reproduction.

On June 7, 2008, the 43rd anniversary of the Griswold decision, the religious right is working to mobilize a nationwide protest called “The Pill Kills Babies.” And just in case you had any question about whether they are talking about the famous “Morning After” pill, the logo on their website — — includes the familiar round pill case containing one month’s dosing of the regular old standard birth control pill.

According to their website, every prevented pregnancy is an abortion, meaning more than 11 million “chemical abortions” occur each year, with more than 324 million “chemical abortions” — nearly the entire US population! — since 1973.

So, in case you think the fight against gay marriage isn’t relevant to you, it’s only the tip of the iceberg in terms of what the forces of religious morality have in store for us all.

Please remember that when you talk to your friends and family about what those crazy queers are doing out in California.

Law & Politics & Privacy17 Aug 2006 01:32 pm

An article at discusses today’s news: a federal judge in Michigan has ruled that the Bush Administration’s warrantless wiretapping program is unconstitutional and violates numerous federal laws.

Today’s decision is a powerful and sweeping indictment of the Bush Administration’s practice of ignoring laws and the Constitution when it doesn’t suit their vision of what presidential power is. The decision of the judge focuses on the fact that there are laws governing how to get wiretaps, and the Bush Administration has brazenly and willfully ignored them.

The judge also rejected the administration’s claim that the case should be thrown out because it involves “state secrets.” In rejecting that claim, the judge pointed out that she didn’t need to see a single secret thing to review whether they’d followed applicable laws and constitutional processes.

Attorney General and torture memo guy, Alberto Gonzales, said in a press conference today that he had documents in his office safe that would show why the warrantless wiretapping is both necessary and legal. As my friend and old law school prof Jonathan Turley said tonight on Countdown: “Unless he’s got a federal authorizing statute in that safe, it’s irrelevant.”

Here are some juicy quotes from the decision, as reported by :

The defendants “are permanently enjoined from directly or indirectly utilizing the Terrorist Surveillance Program in any way, including, but not limited to, conducting warrantless wiretaps of telephone and Internet communications, in contravention of the Foreign Intelligence Surveillance Act and Title III,” she wrote.

She declared that the program “violates the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth amendments to the United States Constitution, the FISA and Title III.”

Her ruling went on to say that “the president of the United States … has undisputedly violated the Fourth in failing to procure judicial orders.”

The decision can be read here.

Of course the Bush Administration is appealing the decision.

Law17 May 2006 09:57 am

History often repeats itself, especially when idiots fail to learn from it. So after reading this article on CNN today, I’m counting the hours till I see a court case titled “Loving v. Black Jack.”

The AP wire story says:

The [Black Jack, Missouri] City Council has rejected a measure allowing unmarried couples with multiple children to live together, and the mayor said those who fall into that category could soon face eviction.

Olivia Shelltrack and Fondrey Loving were denied an occupancy permit after moving into a home in this St. Louis suburb because they have three children and are not married.

What caught my eye was the last name, Loving. That name is well known to civil rights attorneys… indeed to any attorney who didn’t sleep through Constitutional Law class. Loving v. Virginia is one in a long line of aptly named lawsuits, a landmark 1967 civil rights case in which Virginia’s ban on mixed race marriages was declared unconstitutional.

How could the nitwits in Black Jack, MO, be so silly… this kind of bald-faced symmetry just won’t work in Hollywood. It’s too trite. I mean, come on! Maybe their twist will be that Black Jack will sue them to evict Loving and it can be Black Jack v. Loving. Or maybe a different plaintiff… somebody named Bumpkin? Yes… the Bigoted Bumpkins of Black Jack v. Loving has a nice ring to it.

Homeland Security & Law & Religion14 Nov 2005 03:26 pm

My Bible tells me it was the evil Roman Empire who used torture to oppress those sharing truth and knowledge. The evil Soviet Empire built gulags to torture and oppress those seeking truth and justice too. Now we learn that the Bush Administration is using former Soviet gulags as secret torture prisons?

Do these twits not understand irony? Actually, irony isn’t the right word. What is the word for something that is ironic, appalling, immoral, unconscionable, and may even border on crimes against humanity? The closest term I can think of is: the official policy promoted by Vice President Cheney.

The hubris, the unmitigated and unbridled gall of Dick “I had other priorities than serving during Vietnam” Cheney going to the U.S. Senate and fighting against a bill written by torture victim John McCain. It really takes some balls to stand before McCain and say that torture should be a legitimate option for interrogating terrorists.

Well, if the Vice President does have such durable testicles, perhaps they might come in handy to prove a point. If our esteemed vice-leader truly thinks torture is useful and in the best interests of the United States, it would be an interesting experiment to have a CIA interrogator drop by the Veep’s office and show him how easy it is to get bad intelligence through torture.

My bet is that if someone attached some electrodes to Mr. Cheney’s testicles, he’d give up every secret he had, confess to the Natalie Holloway murder, and offer to to do Rockette kicks while singing “Happy Days are Here Again”… all before a single volt is ever applied. I’m guessing this because it’s my theory that only cowards would prescribe torture.

Yes, I’m saying that the Vice President is what folks down in Texas would call a “yellow-bellied sum-bitch.” And if the President thinks torture is acceptable, then he’s one too.

Sorry my argument isn’t more fleshed out… still kinda flabbergasted by the brazen obscenity of our country’s leadership.

Law & Politics11 Oct 2005 09:58 pm

Merriam-Webster’s Online Dictionary says:

obsequious (&b-‘sE-kwE-&s), (adj.): marked by or exhibiting a fawning attentiveness

For example:

AUSTIN, Texas (AP) — U.S. Supreme Court nominee Harriet Miers told George W. Bush in a 1997 birthday card that he was “the best governor ever” and, in a separate note to her boss, said she hoped his twin daughters recognize their parents are “cool.”

Law & Politics06 Oct 2005 06:20 pm

In Federalist Paper # 76, Alexander Hamilton (writing as “Publius”) discusses the Senate confirmation process and how it serves as a check on unrestrained presidential power. In doing so, he explains:

To what purpose then require the co-operation of the Senate? [ . . . ] It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. [ . . . ] He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure. [emphasis added]

Unfortunately, President Bush has shown that he feels no shame when doing the most blatantly self-indulgent and ill-advised things. But Hamilton and the other framers saw forward to the kind of corrupt leadership that could arise and wrote decisively some 217 years ago that Bush should “be both ashamed and afraid” to nominate his unqualified former personal lawyer to the highest court in the land. And any Senators who vote for her should be similarly ashamed.

Nothing against her personally… I’m sure she’s a nice lady and she may even be a competent corporate lawyer. But the court needs constitutional scholars, not people who are, in Hamilton’s words, “personally allied to” the president, who lack the personal experience and gravitas necessary to prevent them from becoming “the obsequious instruments of his pleasure.”

Law & Mobile Tech & Spam26 Sep 2005 09:12 pm

It’s been a bad couple of weeks for spammers in courts around the U.S.

On September 20, an Arizona appeals court upheld a lower court decision which found that the Telephone Consumer Protection Act (TCPA) of 1991 does indeed apply to Short Message Service (SMS) spam sent to mobile phones.

The case, Joffe v. Acacia Mortgage Corp., is another victory for Rodney Joffe, my friend and a fellow co-conspirator in

According to the AP:

Acacia argued that it had only sent a message and did not “call” Joffe, but the Court of Appeals said that was an incomplete description of what the company did when it used e-mail to indirectly connect to Joffe’s cell phone and place a text message.

“Even though Acacia used an attenuated method to dial a cell phone telephone number, it nevertheless did so,” Judge Patricia K. Norris wrote for the panel.

Then, on September 22, we learned in late word from Oklahoma that one of today’s most prolific spammers, Robert Soloway, was ordered by a federal judge to pay more than $10 Million in statutory damages and has been permanently ordered to stop his spamming ways. Failure to heed the judge’s order can result in arrest, extradition to Oklahoma, and jail for contempt of court.

Careful readers of PrivacyClue will remember that Robert Soloway recently got on my bad side by sending out the text of a column I wrote, making it appear as if I had sent the spam. As a result of the court’s injunction, if Soloway sends any more spam in violation of the CAN-SPAM Act, he’s looking at jail time.

I’m sure his Mom is so proud!

Law & Privacy13 Sep 2005 12:52 pm

According to numerous reports, conservative Supreme Court nominee John Roberts testified that he believes the U.S. Constitution contains a right of privacy, backing away from a memorandum he wrote during the Reagan administration in which he summarized arguments against a privacy right.

The question of Constitutional protections for privacy are of tremendous importance because they underpin critical Supreme Court decisions, including the landmark Roe v. Wade decision which gives women access to abortions.

“The right to privacy is protected under the Constitution in various ways,” Roberts said today. But he stopped short of discussing the sensitive topic of abortion directly.

Although the Constitution doesn’t mention the word “privacy,” Supreme Court rulings have established that many of the rights that are specified in the Constitution — such religious freedoms, limits on warrantless searches, and even the right to be free of soldiers in your home — all point to the idea that privacy rights live within the scope of those rights. As such, the Court has held that privacy rights are also part of the freedom to marry and procreate as well as to have access to abortions and to use contraceptives.

Roberts’s views had been in question, in part because of the language he used in a 1981 Justice Department memo, referring to the “so-called ‘right to privacy.'” Roberts explained that the memo didn’t contain his personal views, rather that his assignment in writing the memo was the summarize the arguments of former Harvard Law School Dean Erwin Griswold, who had at the time given a speech criticizing the high court’s privacy cases.

Roberts also suggested he would be slow to overturn such Supreme Court decisions as the 1992 Planned Parenthood v. Casey ruling that reaffirmed the constitutional right to abortion established in the 1973 Roe v. Wade case. He said the Casey decision was a “precedent of the court entitled to respect under principles of stare decisis.”

Stare decisis is the Latin term for the principle that, once the court decides and issue, it generally won’t go back and change its mind on well-settled rulings.

“It is a jolt to the legal system when you overrule a precedent,” Roberts told the Senate. “Precedent plays an important role in promoting stability and evenhandedness. It is not enough to think the prior decision was wrongly decided.”

For those who are concerned about protecting individual privacy rights, Roberts’s words are informative but not ultimately comforting. While he’s not prepared to create havoc by rolling back a generation’s reliance on these decisions, he is certainly leaving open the possibility that, if given the opportunity to further narrow these rights, he could still do so. This is what still concerns many, and rightly so.

One set of concerns is explained by Bill Scher in an entry at Huffington Post:

If Roberts’ definition of privacy rights encompasses the views of “every justice” — including Justices Scalia, Thomas and the late William Rehnquist — then it has nothing to with the privacy right that currently underpins the right to an abortion and the right to be gay. Because the three tried to squelch those rights.

Even Roberts’ seemingly explicit embrace of Griswold v. Connecticut was shady. Griswold is the case which concluded there is a broad right to privacy inherent in the Constitution, and was a precursor to Roe v. Wade. But when Roberts endorsed Griswold, he did not endorse its ruling that there is a broad right to privacy. He only said, “I agree with the Griswold court’s conclusion that marital privacy extends to contraception.” Just marital privacy!

Law & Malware03 Aug 2005 07:40 pm

CNet reports that America Online’s subsidiary has reached a settlement with the Federal Trade Commission on charges that the company had distributed an anti-spyware program that actually contained adware bundled with it, and that the company had failed to adequately notify consumers about the hypocrisy.

According to the report:, also known as, promoted its SpyBlast program as a way to protect users’ computers from “hackers,” the FTC charged. But those who downloaded the product also installed a separate program that monitored their online behavior and served them pop-up ads.

As is usually the case with these sorts of settlements, the company admitted no wrongdoing, but promised not to do it again. The company will also submit to FTC oversight of its behavior, which could subject them to substantial fines if the company is caught engaging in deceptive or unfair practices in future.

You can read the FTC’s press release here, and the settlement agreement here.

Law & Malware30 Jun 2005 04:18 pm

In near completion of their slide into the Dark Side, the Electronic Frontier Foundation has offered its congratulations to the malware makers WhenU on a recent court decision that will permit WhenU to generate pop-up ads over the websites of trademark holders.

The case involved 1-800-Contacts, who sued WhenU to stop them from generating pop-up ads for competitors when users attempted to visit the 1-800-Contacts website. The EFF had offered an amicus brief that raised some good points about the current state of trademark law, but ultimately failed to miss the larger point of WhenU’s unfair and deceptive practices.

According to the EFF’s Fred von Lohmann:

“A trademark owner is not entitled to control your desktop just because you happen to be visiting its website. […] This decision is good news for consumers who want the freedom to install tools that help them customize their web-surfing.”

Forget that WhenU’s software, like other malware companies’ products, often winds up on consumers’ computers without their knowledge or permission. Forget that when somebody wants to do business with 1-800-Contacts, the unasked-for, unwanted pop-up ad interferes with that business transaction. Forget that 1-800-Contacts has invested heavily in building a brand name that companies like WhenU, and the clients whose ads they deliver, are attempting to unfairly leverage.

The EFF would have you believe that the WhenU case is about a corporation — whose website you are trying to visit of your own free will — trying to somehow seize control of your desktop and prohibit you from using all your favorite Firefox plugins. This spin on the dispute is not merely deeply disingenuous, it’s downright intellectually dishonest.

Far from permitting consumers to exercise more control over their desktops, and be presented with more choices, malware companies themselves are seizing control of peoples’ computers and displaying what the malware company wants them to see, often without ever having asked them if they wanted such an interruption.

Malware companies don’t aid in competition, they interfere with it, using technological trickery to slip in between a consumer and the site they actually wanted to visit. As I wrote in my testimony before the Federal Trade Commission at their 2004 Spyware Workshop:

I believe that the practices of spyware-based advertising companies generally act to turn upside-down the notion of fair competition in a free market, allowing unauthorized parties to free-ride on the investments of others. The result is to, in effect, allow those advertisers who utilize spyware-based pop-up ads to supplement their advertising budgets with the investments made by those whose brands are targeted by the pop-up software.

Through an unfair technological circumvention of the normal advertising process, these advertisers are given the ability to deliver their advertising based not on their own efforts and investment in brand identity and advertising presences, but rather upon the efforts, popularity, brand recognition, and investments of others.

As a result, it is my opinion that the inevitable result of permitting one category of companies to usurp the brands and goodwill of another will cause businesses to reduce their investments in promoting and advertising their Web sites, resulting in less competitive information being presented to consumers.

I used to admire the EFF, back when they worked on actual issues of freedom and liberty. But lately they seem more concerned with trying to find the needle of civil liberties in haystacks of wrong-doing. When real freedoms are being threatened, they’re busy defending bad guys whose behavior actually harms people.

Whether it’s their work defending Grokster (“no, of course our name wasn’t trying to appeal to users of Napster”) or defending WhenU (“consumers love our software, even though 98 percent who install it can’t uninstall it fast enough”), they seem to have lost their way.

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