The Problem of Vague Laws

The average American commits three felonies a day: the title of a new book by Harvey Silverglate. More specifically, the problem is the intersection of vague laws and fast-moving technology:

Technology moves so quickly we can barely keep up, and our legal system moves so slowly it can’t keep up with itself. By design, the law is built up over time by court decisions, statutes and regulations. Sometimes even criminal laws are left vague, to be defined case by case. Technology exacerbates the problem of laws so open and vague that they are hard to abide by, to the point that we have all become potential criminals.

Boston civil-liberties lawyer Harvey Silverglate calls his new book “Three Felonies a Day,” referring to the number of crimes he estimates the average American now unwittingly commits because of vague laws. New technology adds its own complexity, making innocent activity potentially criminal.

[…]

In 2001, a man named Bradford Councilman was charged in Massachusetts with violating the wiretap laws. He worked at a company that offered an online book-listing service and also acted as an Internet service provider to book dealers. As an ISP, the company routinely intercepted and copied emails as part of the process of shuttling them through the Web to recipients.

The federal wiretap laws, Mr. Silverglate writes, were “written before the dawn of the Internet, often amended, not always clear, and frequently lagging behind the whipcrack speed of technological change.” Prosecutors chose to interpret the ISP role of momentarily copying messages as they made their way through the system as akin to impermissibly listening in on communications. The case went through several rounds of litigation, with no judge making the obvious point that this is how ISPs operate. After six years, a jury found Mr. Councilman not guilty.

Other misunderstandings of the Web criminalize the exercise of First Amendment rights. A Saudi student in Idaho was charged in 2003 with offering “material support” to terrorists. He had operated Web sites for a Muslim charity that focused on normal religious training, but was prosecuted on the theory that if a user followed enough links off his site, he would find violent, anti-American comments on other sites. The Internet is a series of links, so if there’s liability for anything in an online chain, it would be hard to avoid prosecution.

EDITED TO ADD (10/12): Audio interview with Harvey Silvergate.

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Posted on September 29, 2009 at 1:08 PM • 41 Comments

Comments

UID • September 29, 2009 1:32 PM

It’s not just vague laws. It’s also the sheer volume of laws.

Civil libertarians would probably contend that large numbers of vague laws create too many false positives (my own view).

Many lawyers, government officials, and people who want the government to ‘do more’ would probably respond that the only alternative to vague laws are overly narrow laws made up of detailed lists which lack the flexibility to address evolving threats, create tons of technicalities, violate equal protection, etc. They’d also probably be big on discretion WRT vague laws, i.e. ‘trust your government to only go after the bad guys.’

John Moore • September 29, 2009 1:34 PM

Is the problem vague laws, or a legal system that is broken? The first example shows either the judge to be incompetent or the prosecutors to be making their reputations. The second example is just absurd, and a misuse of logic. That the legal system is broken is beyond dispute. We see this with the withholding of DNA testing from convicts tried and sentenced to prison before such testing existed. Many people are exonerated by such testing now who would have gone to trial in the past. Better screening procedures would eliminate these worthless cases that waste valuable time and hurt innocents.

patrick henry • September 29, 2009 1:45 PM

You fools!

The laws are vague on purpose. This is how you construct a police state without inciting riot as you do it.

Everyone breaks laws every day so that everyone is at the mercy of government entities /personnel that would not normally have power over you.

For example, speed limits. Nearly everyone speeds almost every time they drive. Therefore, any police officer can pull over whomever they want whenever they want and have a perfectly valid excuse for doing so. This is a power the police are not supposed to have. But they do.

Petréa Mitchell • September 29, 2009 1:46 PM

Searching on a couple of the odder turns of phrase, it looks like it’s coming from someone’s generic Web site construction kit. There are a bunch of sites out there with identical terms of service (except for site name), identical privacy policies, and even nearly identical page layouts.

Checking the page sources, it appears to be the work of a tool from these people:

http://www.dotnetnuke.com/

And that they eat their own dog food– their own policies have the same exact wording again.

Tony H. • September 29, 2009 2:23 PM

“Checking the page sources, it appears to be the work of a tool from these people:
http://www.dotnetnuke.com/
And that they eat their own dog food– their own policies have the same exact wording again.”

And they seem to have the same bogus Javascript regexp as everyone else, that rejects lots of quite valid email addresses…

kangaroo • September 29, 2009 3:18 PM

Dr. Fija: the framers didn’t know what they were doing. They created a constitution that was almost impossible to amend, leading to a runaway judiciary (as they are forced to creatively re-interpret basic law so it makes a whit of sense), a creaky old legal system that is almost impossible to update (since it would require changes in the basic law to change the mechanisms that lead to the domination of the system by legalism).

They wrote a document for their day and age — but then (quite stupidly!) closed enough mechanisms for reform short of violence that even the existing reform mechanisms are easily worked around (you won’t ever see a constitutional convention, for example).

They were arrogant, thinking that they could legislate for the ages. So now, even the good they did is frozen to unusability, or “reinterpreted” to mean anything the few with their hands on the lever of meaning wish it to (which is true for the left and the right — the right is just terribly dishonest about the process).

We’ll make do, as we have for centuries through civil war, SCOTUS’al fantasies, court packing, and executive order until the entire system seizes up.

Robert Jackson • September 29, 2009 3:29 PM

With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.

JRR • September 29, 2009 3:33 PM

It’s kind of idiotic to claim that an ISP forwarding mail is intercepting the mail. It is being SENT the mail by the sender, intentionally, for forwarding to the recipient. That’s how SMTP works. The ISP isn’t somehow grabbing something as it goes past them, they are the intended (intermediate) recipient, designated by the sender’s software.

Mail is almost always transmitted plain text, but that’s not the fault of those handling it. It would make about as much sense as prosecuting a mail carrier who accidentally saw what was written on the back of a postcard.

Ah well, prosecutors do idiotic things every day just because they can.

HJohn • September 29, 2009 4:12 PM

@JRR: “Ah well, prosecutors do idiotic things every day just because they can.”

Reminds me of some of the auditors I’ve crossed paths with in my decade-plus as an auditor. It stems from one’s desire to be important and feel competent, and they see something they become determined to make the next finding (or crime) of the century. “Ah ha! Gotcha!”

Few things do more damage than a “gotcha’ watchdog, especially when they think they are doing the right thing and/or are out to make a name for themselves.

CGomez • September 29, 2009 4:30 PM

This is why judges should not instruct juries that they can not employ “jury nullification”. Unfortunately, in the US, juries are often instructed the law is not on trial.

Of course it is on trial. Every time it is invoked to deprive someone of life or limb it is on trial and the merits of the law are debatable.

Sure, this leads to some deplorable outcomes sometimes, but does the current instruction that you are not to consider the propriety of the law change that?

I think we would find very little actual nullification, except when the law is vague, unjust, or outdated. Juries would simply say “man, I’m all for laws against wiretapping but this is nonsense… not guilty.”

hanlon • September 29, 2009 4:48 PM

The result of our absurd & corrupt legal system — is that the United States, with 5 percent of the world’s population, has 25 percent of the world’s prisoners.

Under classic Anglo-American law upon which the United States was founded …. becoming a “criminal” required a person to physically ‘act’ with deliberate ‘intent’ to violate the law– with “awareness” of the illegal nature of that action under specific law(s).

Lawful conviction of a crime required fair judicial proof beyond a reasonable doubt of both:

‘Actus Reus’ {… a bad act} & ‘Mens Rea'{… a guilty mind}

But in today’s American ‘legal system’ — anyone can become a convicted & severely punished “criminal” — without any actual knowledge of the “law’s requirements” and with no wrongful intent at all.

Thus, the “rule-of-law” no longer exists in America… but our prisons overflow.

It’s called tyranny.

Steve Parker • September 29, 2009 5:37 PM

Articles which use technical terms incorrectly can be very hard to parse – why would the ISP shuffle emails “through the Web” as part of its normal operations? That does sound suspect, until you replace “Web” with “internal ISP mail server(s)”.

Similarly, the claim that “The Internet is a series of links” – better than “a series of tubes,” I suppose – makes the same mistake in the opposite direction; the Web contains links, the internet merely transmits the data.

It’s a small gripe, but it does make it difficult to read, and it does highlight a journalist’s lack of knowledge of the field about which they are writing.

paul • September 29, 2009 7:17 PM

Another part of this is the old “two cultures” thing. Laws dealing with technical stuff are typically written either by lobbyists for some group with money and an axe to buy, or by legislative staff under the influence of questionable metaphors and analogies. They’re then applied by judges and prosecutors with similar lack of technical understanding, relying on yet another set of metaphors and analogies that may be even more strained than the ones used to concoct the law. And even bigger axe collections.

Should more people with technical chops perhaps consider that all that scrappy legal and political stuff really isn’t as irrelevant and far beneath them as they think?

Clive Robinson • September 29, 2009 7:50 PM

@ hanion,

“is that the United States, with 5 percent of the world’s population, has 25 percent of the world’s prisoners.”

It has been pointed out to me by someone involved with the design and construction of prison infrastructure that in the US running a prison is a profitable business, especialy when the prison is at or above design capacity.

They went on to point out that in the US and UK no matter what the total prison capacity it was in everybodies interest from the Politico’s downwards to ensure that no matter what the true crime rates, the number of people being convicted should exceed the prison capacity…

The problem with this is that you need more and more legislation to ensure the “required balance”.

And the problem with that is that very often due to the “law of unintended consiquences” legislation creates a profitable crime culture, that society has to significantly pay for.

The classic example being illegal recreational drugs. In that each piece of legislation brought in actually increases the supply of money to the drug dealers. This in turn diverts money away from other economic activities not just directly but indirectly.

Such indirect activities usually result from other criminal activity such as street crime and breaking into peoples homes.

Often the value of goods stolen from a home is so small compared to the cost of investigation, that in many places investigation is only carried out for other reasons.

Likewise the cost of repair, is such that many insurance companies now directly employ as “core business” repair contractors.

Oh and the cost of replacment of the stolen items so small that often people get better quality replacment items as the cost of finding “like for like” significantly exceeds the price difference.

All of these very substantial costs to society stem directly from “Political legislation”.

And it is legislation that almost invariably has the opposit effect to that which it is “apparently” drafted for…

Clive Robinson • September 29, 2009 8:26 PM

@ paul,

“Should more people with technical chops perhaps consider that all that scrappy legal and political stuff really isn’t as irrelevant and far beneath them as they think?”

Unfortunatly the law is realy about “show time” when it comes to technical matters.

Judges deal with pieces of paper, it’s what they understand and are comfortable with. They call the pieces of paper evidence. Your legal representatives spend a great deal of time arguing not about what is on the pieces of paper but about how the piece of paper arived at the court and if it should be considered for judgment…

One rule that used to be firmly adheared to was that of not alowing “hearsay”, that is all evidence given had to be first not second hand.

However the coming of the scientific and technical age brought with it “fields of endevor” in which “proffesionals practiced” and the “body of knowledge” is subject to “peer review”.

This has thrown a spanner in the works as it is now recognised that the two tribunuals (judge and jury) cannot be expected to have any real knowledge of any particular “field of endevor”. Which means they need to call upon “independent professionals in that field” for unbiased advice or “opinion”.

Opinion is effectivly legitimised “hearsay” where an “expert” says what they think the technical facts before the court mean…

Unfortunatly due to many reasons this has degraded to “guns for hire” both for prosecution and defense.

It is nolonger based on sound reasoning but “presentation”.

To understand why flip the issue arround. Two legal people stand in front of you and present “arguement” about what some obtuse piece of law means. You then have to decide which is correct.

Ask yourself honestly what is going to sway your judgment most, logic or the argument that “feels right”…

Technical people tend to be “left brained” bordering on autistic they live inside their own heads not the heads of others and tend to have limited social skills.

Politicos and those who are well practiced in presentation tend to be “right brained” verging on psycopathic, they live almost entirely behind the illusion they create in other peoples heads and have highly refined social skills that they use to maintain that false perception.

b • September 29, 2009 10:36 PM

I’m going to turn it around and say that our laws aren’t vague enough. Like the wiretap law in the article, it’s so specific it lacks the very idea of why laws exist: To punish those who harm.

Laws that are tailored to the technical violation end up like this wiretap law. Laws should focus on what the harm is, not what the technical application of it is.

Vincent • September 30, 2009 12:03 AM

@Petréa
DotNetNuke is a portal framework for building web applications, but this site has turned off all of the gizmos and left the TOS (maybe even intentionally, it’s even kind of beautiful as a work of art, just a document, and a pile of legalese).

Mina • September 30, 2009 12:33 AM

The article refers to the Megan Meier case. That case is not a matter of “using the internet to…cause emotional distress to another person.” It’s a matter of a grown woman harassing a little girl, and/or knowingly allowing and/or assisting her daughter in telling this girl that the world would be better off without her. We don’t need that law, we need to acknowledge that Lori Drew is sick and cruel. What kind of grown woman harrasses a little girl like that? A sick one.

Angus S-F • September 30, 2009 1:26 AM

CGomez’s comment at http://www.schneier.com/blog/archives/2009/09/the_problem_of.html#c394125 is right-on. If more people knew about the right to Jury Nullification and put the law on trial every time someone was tried, I suspect we’d have many fewer bogus prosecutions. Having open Jury Nullification would likely prevent many ridiculous arrests, like the recent arrest of a woman in Indiana for buying 3.6g of psuedoephedrine in two separate purchases 6 days apart (see http://www.tribstar.com/local/local_story_246225916.html ) — no prosecutor would take something like this to trial knowing the jury could nullify it. But under the current situation in the USA, defense lawyers often are told by judges that they CANNOT inform juries that they can overturn the law. At least jurors can still nullify bogus laws — if they can get seated. “A 1969 Fourth Circuit decision, U.S. v. Moylan, [which] affirmed the right of jury nullification, but also upheld the power of the court to refuse to permit an instruction to the jury to this effect.” (from “Jury nullification in the United States” at
http://en.wikipedia.org/wiki/Jury_nullification_in_the_United_States ).

If you were confronted by an armed burglar in your house, and your daughter was hiding in the closet, you would certainly be morally and ethically right if you lied to the burglar and told him there was nobody else in the house. Here someone threatens another person by force. If you are asked by a judge who asks you if you will uphold the law regardless of your personal feelings about the law (which you might believe is unjust), are you any different if you lie and say “Yes, Your Honor”? I submit not — you are ethically and morally bound to lie in this situation, if you really believe the law to be unjust. Abolitionists found themselves in this situation before the Civil War — being asked to convict people for harboring “escaped” slaves. Were they right to nullify the law? During Prohibition, an estimated 60% of cases were overturned by Jury Nullification. We need more of this!

Anton • September 30, 2009 3:09 AM

Hasn’t it been shown statistically, that every person is linked to every other person on the planet through friends and acquaintances via at most 7 nodes. I imagine something similar applies to significant websites.

Clive Robinson • September 30, 2009 4:33 AM

@ Anton,

“I imagine something similar applies to significant websites.”

Err it might be as little as one intervening site in most cases depending on what you view as a significant website and site to site link…

Search engines tend to have links to most sites that are “available” on the web, therefore they provide single or direct click links to most sites (but you have to enter a search term to get them).

Therefore if you link to say google for searching your own site (or others) then you are but one site away from all others…

If however you say just direct (mouse) clicks then it becomes more interesting.

Oddly some of the longest site to site seperations are through “web rings” for popular topics.

Then how do you treat links on different pages of the same site, do you count page to page links within a site as the same as site to site links or not.

For instance take a wiki site, like a search engine it has links to a very great number of other sites. However you might have to click up/down several wiki pages to make a site to site link.

Another awkward issue is what is and is not a key node and why.

Because of the terms “net” and “web” people tend to think of web interconections as a two dimensional surface.

Whilst there is a degree of truth for this in the physical/electrical/data interconections it is most definatly not true of website to website links.

You come up against an N-dimensional graph which radicaly changes it’s appearance depending not just on which dimension you chose as your refrence but also on how you compress the dimensions down to enable a view to be made in human terms.

Therfore finding the shortest “click only” or “degrees of seperation” path between any two websites might well be come a game of chance in any meaningfull time frame.

Which gives rise to the notion of using it as a “chalenge” or “sport” activity for people with to much time on their hands 😉

ac • September 30, 2009 5:33 AM

I don’t suppose it’s any consolation to the convicted but the 3 crimes/day rule applies to the police, prosecution, jury and judge as well. Perhaps we should all hand ourselves in… oh wait…

bob • September 30, 2009 8:28 AM

It does not help any that whenever most people in the US get a jury summons (this is my experience of what others do; your results may vary) the first thing they do is try to “get out of it”. This leaves the juror pool as a collection of people who have nothing to do for months/years at a time or who find the $5 per day renumeration to be a large sum.

No offense intended to any category of adults who find $5 a large sum or have no job for most of their lives (note: I am not referring to seasonal or laid-off workers, handicapped, elderly, injured or ill [physically or mentally] people or unlawful immigrants), but I suspect there is a large overlap between this self-selected group and a group that might correctly be labeled “people not good at making decisions that affect the public at large”.

These are the people who now set the legal precedents that all the rest of us are punished by.

FP • September 30, 2009 9:42 AM

I trust the legal system (judges and juries) to make the right choice and dismiss charges based on vague laws or bogus interpretations, eventually.

But it takes time, effort and therefore money to come to that conclusion. Being dragged into court on a bogus charge is a major inconvenience that disrupts anyone’s life.

Someone who has the time and money and motivation can use vague laws to make life miserable for those who don’t.

kashmarek • September 30, 2009 1:03 PM

Saying the average American commits 3 felonies a day is a lot different than saying that every American commits 3 felonies a day. One person committing 1 million felonies in a day, as could happen in the wiretap example, covers more than 300,000 people who didn’t break the law.

valdis • September 30, 2009 5:07 PM

@kashmarek: “Saying the average American commits 3 felonies a day is a lot different than saying that every American commits 3 felonies a day.”

Ahh, but I suspect that the median and mode values are also pretty close to 3, as well (and why in a case like this the median and mode may be more informative than the arithmetic mean).

DC • September 30, 2009 5:12 PM

I am about to make a trip to be keynote speaker at an amateur high energy physics meeting (fusion) and swap meet. We plan to bring some oddities for that swap meet, things like deuterium fuel (legal but very hard to obtain pure for some that lack certain credentials), some oddball chemicals (mostly obscure, but useful in this endeavor, such as Y2O3 to use as an electron emission enhancer, works better than the barium/strontium carbonates used in electron tubes if there’s air exposure), and most of the stuff they just busted that guy for — H2O2, some other oxidizers and so on, and a few legal radioactive sources used to calibrate instruments. Just stuff that a fun loving bunch mostly over 60 years old likes to have to amaze the neighborhood kids with. We swap things like that between ourselves all the time, no one is ever hurt, it’s WAY not what we’re all about.

None of us have ever had the slightest thought of doing any harm with any of this, if anything we’re trying to save the world via alternative energy research, and believe it or not, scientists are as fun loving as the next guy — they just do it in stranger and more advanced ways. One of the tesla coils these guys have made could surely produce terror in most people (20 foot sparks) though.

I sure hope we don’t get pulled over on the way there, and put in jail for things you can buy at the beauty shop, fertilizer store, or in Canada, which is where most deuterium comes from. From a “bad guy” point of view, why use expensive isotopes highly purified when something much easier would do. I don’t usually post anon, but….

This is utterly out of control.

I have a couple questions on the one possibly real (but marginal at best) threat DHS has found in all these years of picking into our private lives.

Why would a guy who already is cleared to access a major airport in Denver, build stupid, small scale bombs to take to NYC where they would do less damage due to restricted access than he can do right where he is? And indeed acetone peroxide and those variants are somewhat powerful but are also so touchy you basically would have to make them in place for them to be useful — the military decided that a long time back — and they are usually not the sharpest tool in the shed. Why would someone so intent on causing damage not research something other, more useful, than the “teeny bombers” all play with — the parts for those things are at least as easy to obtain, and the results work better — and you might live through it.

Heck, you could make a better and far more scary “dirty bomb” with a cherry bomb in a bag of yellow laser toner — all would assume anthrax or something, and you’d kill more in the resulting stampede than a pound of HE would manage.

To repeat, I have in my house, and have for many years (including during a thorough search by DEA who assumed it was drug making material, profiling and not doing homework — yes, I beat the crap out of them in court later), all the stuff they just busted that other guy for having, including extensive explosives manufacture and use information, and yes, some of it has handwritten notes on it, because I ‘ve tested some of it and made notes, like any good scientist would do — or any skilled practitioner of nearly anything would do.

Does that mean that I, a loyal citizen (and indeed one who held quite a security clearance for decades), am now in danger of being regarded as a threat worthy of prison and torture? This has gone way too far.

Guess it’s lucky I don’t read certain religious books, being from the bible belt and all.

We seem to have reached a world where ability equals intent to do whatever is the worst thing one could do with that ability — so welcome to “be stupid, it’s safer”, people. Or get these idiots out of power.

David Rittenhouse • September 30, 2009 5:49 PM

This reminds me of the Ayn Rand Quote:

“The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. “

Peter A. • October 1, 2009 5:48 AM

@DC: “We seem to have reached a world where ability equals intent to do whatever is the worst thing one could do with that ability — so welcome to “be stupid, it’s safer”, people. Or get these idiots out of power.”

As a yong boy I was somewhat interested in chemistry (both my parents have a degree in chemistry , that’s probably why) and I got a Russian made play set called “Young chemist” for birthday. It contained some glass, a burner and a bunch of not-so-very-dangerous chemicals like 10% HCl solution, NaOH, sulphur, magnesium stripes, aluminum and iron powder, etc. etc. I can’t remember now what else was there. It was sold at toy stores, however it was not easy to come by in the Communist era of shortages of everything (I wonder if my parents had to bribe the sales clerk to get one?)

The set came with a booklet describing many experiments of variuos complexity (poorly translated from Russian, BTW), some of them introduced basic pyrotechnics. I had also many other books, some by famous Polish popularizer of amateur chemistry Stefan Sękowski, which contained many “recipes” for doing something fun and also decribing where to get stuff or how to make it yourself from other substrates.

I just wonder what would happen to someone trying to market such a play set today. Or someone using it, for that matter.

One of my achievements that I was particularly proud of was making of my own sparkler sticks for the New Year – it was very hard to buy them then. Never asked where my father got that phial of barium nitrate 🙂 the other ingredients came from the play set…

Clive Robinson • October 1, 2009 9:38 AM

@ Peter A.,

“I just wonder what would happen to someone trying to market such a play set today. Or someone using it, for that matter.”

I don’t know about the US but in the UK you would find a bunch of “Trading Standards Officers” and Local Council “Health and Safety” wonks draging any retailer brave enough to try selling it off on some bunch of psuedo laws.

As for anybody using it in the UK we have terrorism laws where you would get a minimum of three years for just possessing a note book that told you how to make a sparkler let alone where to get the bits…

@ DC,

As you pointed out about the US police appearing to have more legislation than sense. In the UK the police grab the latest bit of legislation and spin it for their own purposes.

Thankfully many judges and magistrates have had enough of it, and senior police officers are finding themselves put on the spot.

However it does not appear to be sinking in as the Met Police (London) have been caught out keeping illegal databases on people and supplying the information to comercial organisations who then use the information to prejudice innocent people.

Unfortunatly our Politicians have been to busy with their snouts in the trough to actually do anything about it other than bleat platitudes, and complain vociferously when we call them to account…

moo • October 1, 2009 12:11 PM

I think the big problem with having too many laws on the books, and laws about dumb things that most people don’t think are important enough to be regulated by a law, is this:

It reduces everyone’s respect for the law and those who pass them and enforce them! What is the point with worrying about compliance when there are so many laws about trivial things, that its nearly impossible to comply with them?

Most citizens simply know the broad outlines of the behaviour that is expected from them: they can’t steal, assault, trespass, murder, and so on. I’ve never met anyone who can list ALL the things I’m not allowed to do in my automobile in a certain jurisdiction. Thats why people get nervous when a cop car starts following them—if the cops want to pull you over, they can follow you for 20 minutes and ALWAYS find some law that you’ve broken during that time to pull you over with.

“Ignorance of the law is no excuse”, but if you ask any practicing lawyer how many laws are in effect in the jurisdiction that they themselves live in and practice law in, they could not possibly tell you. Even if you ask them about specific subsets (e.g. “how many tax laws”, or “how many traffic laws”) they will either have no idea or be able to give you only a rough guess.

There are even secret laws that the government won’t reveal to its own citizens (like certain laws involving airlines and terrorist watch-lists).

Its all laughably kafka-eqsue.

“There’s no way to rule innocent men. The only power any government
has is the power to crack down on criminals. Well, when there aren’t
enough criminals, one makes them. One declares so many things to be a
crime that it becomes impossible to live without breaking laws.”
— Ayn Rand, “Atlas Shrugged”

Western society is on the decline. Its not quite the fall of the Roman empire (yet), but the signs are definitely there.

If the ruling class seriously wants to turn things around for their culture and their society, a good first effort would be to simplify the tax laws and the laws in general, and take measures to ensure that all citizens have free and reasonably easy access to at least read the laws that they are supposedly subject to.

I think there should be an automatic sunset provision on all laws passed in the country (maybe with an exception for the most fundamental bits, e.g. here in Canada they could make the Criminal Code exempt from the automatic sunset provision). But for everything else, the legislators should be forced to at least review every law one by one, and vote on it every 5 years. Even Rubber-stamping the existing laws to keep them in circulation, would keep them so busy they wouldn’t have time to do much damage by passing new laws. It would also give them a much-needed incentive to simplify or outright discard laws and regulations that are obselete or just too complex.

Right now, there are NO parties with both the ability to clean up existing laws, and the incentive to clean up existing laws. The legislators are incented to pass new ones (to help them get re-elected) and the court system evolves a modified understanding of what a law means, but that tends to add to its bulk rather than shrink it. Courts sometimes throw out certain laws that conflict with higher laws and should never have been passed in the first place if the legislators were properly doing their jobs. But that happens rarely.

Anon Y. Mouse • October 2, 2009 1:01 AM

“Formerly, we suffered from crimes. Now, we suffer from laws.”
— Tacitus

“Did you really think we want those laws observed?”, said Dr.
Ferris. We WANT them to be broken. You’d better get it straight
that it’s not a bunch of boy scouts you’re up against… We’re
after power and we mean it… There’s no way to rule innocent
men. The only power any government has is the power to crack
down on criminals. Well, when there aren’t enough criminals one
MAKES them. One declares so many things to be a crime that it
becomes impossible for men to live without breaking laws. Who
wants a nation of law abiding citizens? What’s there in that for
anyone? But just pass the kind of laws that can neither be
observed nor enforced or objectively interpreted — and you
create a nation of law-breakers — and then you cash in on guilt.
Now that’s the system Mr. Reardon, that’s the game, and once you
understand it, you’ll be much easier to deal with.”
–Ayn Rand, “Atlas Shrugged”

John A C Cartner • October 29, 2009 10:59 AM

The cat got out of the bag with Schechter Poultry [the Chicken Case]. We started then a process of government by organized regulation in support of the laws. With the experience of World War II we found that regulation worked pretty wellwith vague laws, made purposely vague so we could be regulated. In the best American tradition, if some is good, more is better. Even the setback of U.S. Steel could not stop the train. The Cold War and the technology developed during WWII got us into the collection of information. We could live with that because of the Soviet mortal ‘threat.’ The end of the regulatory state and the beginning of government by control came, for convenience, in 2001. The technology for control, the Congressional will for control, the Executive demand for total control morphed us into that state which is essentially a controlled police state where the federal government has extraordinary police powers. Looked at this way, party line differences are trivial. There are controllists and there are governmentalists. The controllists have won for the moment, Democrat or Republican. The new Leviathan on its current course can only get worse. It is going to be very difficult to change this course without fundamental changes in accountability in the Congress followed by such changes in the Executive. One way is to devise language in a Constitutional amendment requiring each Senator and Congresman to certify under penalty of censure that he or she read and understood the bill before a vote. It would be a start with some rather far-reaching implications for the better.

vasya pupkin • November 21, 2009 1:44 PM

Draconian Laws are not iron Laws, they are capricious Laws. Capriciuos Laws are vauge Laws that give a chance of selective appplication/prosecution even within generally sufficient due process based not on Mens Rea, but on culprit personality/loyalty to the system.
As author suggested on CSPAN: Mixed od Kafka and Orwell.

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