is there a right to create bits in cyberspace? is there a right to capture the value of them from the public domain?
September 1960. i enter harvard law school. my first class is PROPERTY, taught by W. Barton Leach. the first case in my property casebook deals with ferae naturae, wild animals, unowned things of value in the public domain. the case name is Pierson v. Post. the setting (loosely) is a long and empty public beach in front of a crusty dutchman’s house who is sitting on his porch looking out at the beach in front of him with a rifle on his knee, that’s Pierson; and Post, an english squire type who likes to hunt foxes with a pack of dogs. On the day of the event in question Post and his dogs succeed in flushing a fox and chasing it out onto the beach. They are in hot pursuit coming down the beach in front of Pierson’s porch, fox, dogs and Post on horse galloping behind. Pierson raises his rifle and shoots the fox dead. who owns the fox?
i make no “secret” that i record. my default is red light on. whether i have my red light on is no business of the state. whether those with whom i come in contact consent to be in the environment i am in or whether they insist on theirs seems not the or not is between them and me, not the stuff of five year felony
the massachusetts statute purporting to make it a five year felony to digitally record my environment if any one in it objects, with requirement that i must announce to each new identity coming into the environment i am recording that i am laying down digital track = bullshit!. the massachusetts statute is gobblygook. the federal courts of the united states of america have no reason to waste their time with it unless they find it impeding their freedom to administer and project federal law. the idea that the federal court and a federal judge would become the instruments of its enforcement misconceives the proper balance of power and responsibility between state and federal governments in service of their constitutions and their citizens bill of rights. this law has been used to prosecute a kid with long hair driving his car, music player and recorder beside him on the seat, pulled over by police (for his long hair?), who activates the recorder beside him on the seat so that all of what follows is evidence. the cops hassle him in a manner he finds deeply offensive, then let him go. he goes to the police station and complains to the captain about abuse. he tells the captain he has recorded evidence of it. the captain notifies the prosecutor, who prosecutes this kid for violation of this gobblygook statute. the case is tried to a jury. the judge tells the jury that it must ignore all that the police did and said. he gives a fearsome anti-nullification charge that the jurors must obey their oath to apply the letter of the law. the kid is convicted, of a felony with a five year sentence, don’t know if he actually did time. my friend steve elliot told me all about this when i was last in truro. he’s a country lawyer who was in the abington massachusetts courtroom when judge nagle made it happen. steve eliot, father of justin elliot, news editor at TPM, google him, he comes right up. AFFIRMED by the SJC. bullshit!
Massachusetts General Law ch. 272, section 99 (2009)
section 99. Eavesdropping, Wire Tapping, and Other Interception of Communications.
Interception of wire and oral communications.–
The general court finds that organized crime exists within the commonwealth and that the increasing activities of organized crime constitute a grave danger to the public welfare and safety. Organized crime, as it exists in the commonwealth today, consists of a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services. In supplying these goods and services organized crime commits unlawful acts and employs brutal and violent tactics. Organized crime is infiltrating legitimate business activities and depriving honest businessmen of the right to make a living.
The general court further finds that because organized crime carries on its activities through layers of insulation and behind a wall of secrecy, government has been unsuccessful in curtailing and eliminating it. Normal investigative procedures are not effective in the investigation of illegal acts committed by organized crime. Therefore, law enforcement officials must be permitted to use modern methods of electronic surveillance, under strict judicial supervision, when investigating these organized criminal activities.
The general court further finds that the uncontrolled development and unrestricted use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the commonwealth. Therefore, the secret use of such devices by private individuals must be prohibited. The use of such devices by law enforcement officials must be conducted under strict judicial supervision and should be limited to the investigation of organized crime.
B. Definitions. As used in this section–
1. The term “wire communication” means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception.
2. The term “oral communication” means speech, except such speech as is transmitted over the public air waves by radio or other similar device.
3. The term “intercepting device” means any device or apparatus which is capable of transmitting, receiving, amplifying, or recording a wire or oral communication other than a hearing aid or similar device which is being used to correct subnormal hearing to normal and other than any telephone or telegraph instrument, equipment, facility, or a component thereof, (a) furnished to a subscriber or user by a communications common carrier in the ordinary course of its business under its tariff and being used by the subscriber or user in the ordinary course of its business; or (b) being used by a communications common carrier in the ordinary course of its business.
4. The term “interception” means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication; provided that it shall not constitute an interception for an investigative or law enforcement officer, as defined in this section, to record or transmit a wire or oral communication if the officer is a party to such communication or has been given prior authorization to record or transmit the communication by such a party and if recorded or transmitted in the course of an investigation of a designated offense as defined herein.
5. The term “contents”, when used with respect to any wire or oral communication, means any information concerning the identity of the parties to such communication or the existence, contents, substance, purport, or meaning of that communication.
6. The term “aggrieved person” means any individual who was a party to an intercepted wire or oral communication or who was named in the warrant authorizing the interception, or who would otherwise have standing to complain that his personal or property interest or privacy was invaded in the course of an interception.
7. The term “designated offense” shall include the following offenses in connection with organized crime as defined in the preamble: arson, assault and battery with a dangerous weapon, extortion, bribery, burglary, embezzlement, forgery, gaming in violation of section seventeen of chapter two hundred and seventy-one of the general laws, intimidation of a witness or juror, kidnapping, larceny, lending of money or things of value in violation of the general laws, mayhem, murder, any offense involving the possession or sale of a narcotic or harmful drug, perjury, prostitution, robbery, subornation of perjury, any violation of this section, being an accessory to any of the foregoing offenses and conspiracy or attempt or solicitation to commit any of the foregoing offenses.
8. The term “investigative or law enforcement officer” means any officer of the United States, a state or a political subdivision of a state, who is empowered by law to conduct investigations of, or to make arrests for, the designated offenses, and any attorney authorized by law to participate in the prosecution of such offenses.
9. The term “judge of competent jurisdiction” means any justice of the superior court of the commonwealth.
10. The term “chief justice” means the chief justice of the superior court of the commonwealth.
11. The term “issuing judge” means any justice of the superior court who shall issue a warrant as provided herein or in the event of his disability or unavailability any other judge of competent jurisdiction designated by the chief justice.
12. The term “communication common carrier” means any person engaged as a common carrier in providing or operating wire communication facilities.
13. The term “person” means any individual, partnership, association, joint stock company, trust, or corporation, whether or not any of the foregoing is an officer, agent or employee of the United States, a state, or a political subdivision of a state.
14. The terms “sworn” or “under oath” as they appear in this section shall mean an oath or affirmation or a statement subscribed to under the pains and penalties of perjury.
15. The terms “applicant attorney general” or “applicant district attorney” shall mean the attorney general of the commonwealth or a district attorney of the commonwealth who has made application for a warrant pursuant to this section.
16. The term “exigent circumstances” shall mean the showing of special facts to the issuing judge as to the nature of the investigation for which a warrant is sought pursuant to this section which require secrecy in order to obtain the information desired from the interception sought to be authorized.
17. The term “financial institution” shall mean a bank, as defined in section 1 of chapter 167, and an investment bank, securities broker, securities dealer, investment adviser, mutual fund, investment company or securities custodian as defined in section 1.165-12(c)(1) of the United States Treasury regulations.
18. The term “corporate and institutional trading partners” shall mean financial institutions and general business entities and corporations which engage in the business of cash and asset management, asset management directed to custody operations, securities trading, and wholesale capital markets including foreign exchange, securities lending, and the purchase, sale or exchange of securities, options, futures, swaps, derivatives, repurchase agreements and other similar financial instruments with such financial institution.
1. Interception, oral communications prohibited.
Except as otherwise specifically provided in this section any person who–
willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication shall be fined not more than ten thousand dollars, or imprisoned in the state prison for not more than five years, or imprisoned in a jail or house of correction for not more than two and one half years, or both so fined and given one such imprisonment.
Proof of the installation of any intercepting device by any person under circumstances evincing an intent to commit an interception, which is not authorized or permitted by this section, shall be prima facie evidence of a violation of this subparagraph.
2. Editing of tape recordings in judicial proceeding prohibited.
Except as otherwise specifically provided in this section any person who willfully edits, alters or tampers with any tape, transcription or recording of oral or wire communications by any means, or attempts to edit, alter or tamper with any tape, transcription or recording of oral or wire communications by any means with the intent to present in any judicial proceeding or proceeding under oath, or who presents such recording or permits such recording to be presented in any judicial proceeding or proceeding under oath, without fully indicating the nature of the changes made in the original state of the recording, shall be fined not more than ten thousand dollars or imprisoned in the state prison for not more than five years or imprisoned in a jail or house of correction for not more than two years or both so fined and given one such imprisonment.
3. Disclosure or use of wire or oral communications prohibited.
Except as otherwise specifically provided in this section any person who–
a. willfully discloses or attempts to disclose to any person the contents of any wire or oral communication, knowing that the information was obtained through interception; or
b. willfully uses or attempts to use the contents of any wire or oral communication, knowing that the information was obtained through interception, shall be guilty of a misdemeanor punishable by imprisonment in a jail or a house of correction for not more than two years or by a fine of not more than five thousand dollars or both.
4. Disclosure of contents of applications, warrants, renewals, and returns prohibited.
Except as otherwise specifically provided in this section any person who–
willfully discloses to any person, any information concerning or contained in, the application for, the granting or denial of orders for interception, renewals, notice or return on an ex parte order granted pursuant to this section, or the contents of any document, tape, or recording kept in accordance with paragraph N, shall be guilty of a misdemeanor punishable by imprisonment in a jail or a house of correction for not more than two years or by a fine of not more than five thousand dollars or both.
5. Possession of interception devices prohibited.
A person who possesses any intercepting device under circumstances evincing an intent to commit an interception not permitted or authorized by this section, or a person who permits an intercepting device to be used or employed for an interception not permitted or authorized by this section, or a person who possesses an intercepting device knowing that the same is intended to be used to commit an interception not permitted or authorized by this section, shall be guilty of a misdemeanor punishable by imprisonment in a jail or house of correction for not more than two years or by a fine of not more than five thousand dollars or both.
The installation of any such intercepting device by such person or with his permission or at his direction shall be prima facie evidence of possession as required by this subparagraph.
6. Any person who permits or on behalf of any other person commits or attempts to commit, or any person who participates in a conspiracy to commit or to attempt to commit, or any accessory to a person who commits a violation of subparagraphs 1 through 5 of paragraph C of this section shall be punished in the same manner as is provided for the respective offenses as described in subparagraphs 1 through 5 of paragraph C.
1. Permitted interception of wire or oral communications.
It shall not be a violation of this section–
a. for an operator of a switchboard, or an officer, employee, or agent of any communication common carrier, whose facilities are used in the transmission of a wire communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of service or to the protection of the rights or property of the carrier of such communication, or which is necessary to prevent the use of such facilities in violation of section fourteen A of chapter two hundred and sixty-nine of the general laws; provided, that said communication common carriers shall not utilize service observing or random monitoring except for mechanical or service quality control checks.
b. for persons to possess an office intercommunication system which is used in the ordinary course of their business or to use such office intercommunication system in the ordinary course of their business.
c. for investigative and law enforcement officers of the United States of America to violate the provisions of this section if acting pursuant to authority of the laws of the United States and within the scope of their authority.
d. for any person duly authorized to make specified interceptions by a warrant issued pursuant to this section.
e. for investigative or law enforcement officers to violate the provisions of this section for the purposes of ensuring the safety of any law enforcement officer or agent thereof who is acting in an undercover capacity, or as a witness for the commonwealth; provided, however, that any such interception which is not otherwise permitted by this section shall be deemed unlawful for purposes of paragraph P.
f. for a financial institution to record telephone communications with its corporate or institutional trading partners in the ordinary course of its business; provided, however, that such financial institution shall establish and maintain a procedure to provide semi-annual written notice to its corporate and institutional trading partners that telephone communications over designated lines will be recorded.
2. Permitted disclosure and use of intercepted wire or oral communications.
a. Any investigative or law enforcement officer, who, by any means authorized by this section, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose such contents or evidence in the proper performance of his official duties.
b. Any investigative or law enforcement officer, who, by any means authorized by this section has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may use such contents or evidence in the proper performance of his official duties.
c. Any person who has obtained, by any means authorized by this section, knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose such contents while giving testimony under oath or affirmation in any criminal proceeding in any court of the United States or of any state or in any federal or state grand jury proceeding.
d. The contents of any wire or oral communication intercepted pursuant to a warrant in accordance with the provisions of this section, or evidence derived therefrom, may otherwise be disclosed only upon a showing of good cause before a judge of competent jurisdiction.
e. No otherwise privileged wire or oral communication intercepted in accordance with, or in violation of, the provisions of this section shall lose its privileged character.