The AP reports:
A Colorado man who wrote a how-to guide for pedophiles ["The Pedophile's Guide to Love and Pleasure: a Child-lover's Code of Conduct"] is being transferred to Florida to face obscenity charges, after deputies there ordered a copy of the book that has generated online outrage….
If the book actually provides useful and nonobvious information about how to more effectively seduce children (or escape detection), then it brings us to the difficult and unresolved issue of crime-facilitating speech (full article here). I doubt there is a currently existing statute under which he could be prosecuted on a crime-facilitating speech theory, but if there were one then there would be an interesting First Amendment question about whether such a statute is constitutional.
But from what I’ve heard of the book, I doubt that an obscenity prosecution would work. The obscenity exception essentially covers hard-core pornography — material that is not just about sex, or that advocates or gives information about illegal sex, but material that is highly sexually explicit. Specifically, to be obscene, a work (1) must be, taken as a whole, erotically stimulating (in a way that is seen as “shameful or morbid”) to its likely readership, (2) must depict or describe, in an offensively explicit way, sexual conduct, and (3) must, taken as a whole, lack serious literary, artistic, political, or scientific value.
From what I understand, the book is not, taken as a whole, erotically stimulating; neither its purpose nor its likely use is erotic stimulation. The Polk County Sheriff’s Office says that “The book contains two graphic stories depicting an adult engaged in sex acts with children,” but I doubt that these two stories suffice to make the work erotically themed when “taken as a whole.”
And to the extent that “[t]he book also defends [and] advocates … illegal sex acts between adults and children” (I again quote from the Sheriff’s Office), it conveys a serious political message, albeit an evil message. That should suffice to satisfy the serious political value prong. In any event, even if I’m mistaken as to one or another of these items, I doubt that it satisfies all three of the prongs. And to be obscene, it has to satisfy all three.
To be sure, in the past advocacy of the propriety of harmful sexual conduct — at the time, adultery, but the logic would extend even to the much more harmful behavior of sexual molestation — could be seen as “thematically obscene.” But the Court rejected that in Kingsley Int’l Pictures Corp. v. Regents (1959), and has not resurrected it since.
Of course, a child pornography prosecution wouldn’t work either. To be child pornography, a work has to depict (in photographs, videorecordings, or audiorecordings) actual children. Text might in principle be obscene, if it’s sufficiently sexually explicit. But it can’t be child pornography.
Thanks to Robert Woolley and Prof. Eric Freedman for the pointers.
wm13 says:
But the Supreme Court has said that the usual rules (work taken as a whole, lack of redeeming social value, etc.) don’t apply to child pornography. So who’s to say that the “thematically obscene” rule may not survive in the special, uniquely horrible and despicable case of pedophilia?
December 20, 2010, 8:42 pmByomtov says:
must, taken as a whole, lack serious literary, artistic, political, or scientific value.
Or, as Tom Lehrer put it,
December 20, 2010, 8:45 pmEugene Volokh says:
wm13: Ashcroft v. Free Speech Coalition (2002) pretty firmly rejects that sort of argument. This made clear that the child pornography exception is limited to speech that involves real children, and would not be expanded beyond that.
Byomtov: Tom Lehrer was writing before the “serious value” prong test was adopted, back when “utterly without redeeming social importance” was treated by at least some Justices as a precondition for the obscenity exception to apply.
December 20, 2010, 9:17 pmyguy says:
I don’t see why, since the exercise of any right is only legitimate insofar as such exercise doesn’t victimize others.
December 20, 2010, 9:32 pmterraformer says:
The prosecution doesn’t have to “work” when you have someone in pretrial detention, who is going to be shipped clear across the US and further held (on the basis he is a flight risk) until his trial which I am sure he will not have in a speedy fashion. Add in the sufficiently inflamed jury who I am sure will be read proper jury instructions and this guy will spend enough time in jail that his actual conviction (supposing he gets it overturned) will not matter.
When the burden to move forward is as low as it is, it will take a strong civil rights minded judge to cut this one short.
December 20, 2010, 9:44 pmOrenWithAnE says:
terraformer, you might consider that FL is a presumption-of-bail State. On the other hand, it does somewhat cramp your narrative, so maybe not ….
December 20, 2010, 9:59 pmEugene Volokh says:
yguy: Well, if you’re interested in the issue — or at least in why it’s a difficult question — check out this article.
December 20, 2010, 10:02 pm1040 says:
Apologies if this is a dumb question, because I am guessing there is case law around this, but what prevents hard core porn films from being prosecuted under this vague wording? Let’s stipulate that it describes sodomy or scatology if that is needed to make it “shameful or morbid”.
December 20, 2010, 10:11 pmLaura(southernxyl) says:
There was an elementary school principal here in Polk County who got into serious trouble when it was found that he had photoshopped pictures of the heads of children in the school where he was the principal onto pictures of nude teenagers who were just barely legal. He was freed upon appeal after some jail time (IIRC) b/c the nude parts of the pictures were not of children.
It is my unpopular opinion that this kind of thing, and the book written about in the OP, ought to be illegal. I understand that they are not. But I think society is not better off for tolerating them, but worse off.
December 20, 2010, 10:13 pm1040 says:
(Sorry, time ran out before I finished editing my comment: I ask because Alito raised a hypo about crush porn with ladies in high heels crushing puppies in the US v Stevens case, IIRC. Is the smart money that the Miller test will survive a challenge in the current court?)
December 20, 2010, 10:18 pmZiz says:
That seems like an odd test. Why is a little obscenity buried in blandness less objectionable than a little obscenity all by itself?
December 20, 2010, 10:23 pmterraformer says:
Hey, I am not wedded to my narrative. Then all he is out is significant legal costs. If FL lets him go, that will be better than nothing. But if they felt the need to arrest him in CO and ship him to FL instead of offering him the chance to surrender, why would I presume they feel he is anything but a flight risk.
I deal with people who are bullied into not exercising their civil rights on a daily basis sadly. Or more specifically, the people who serve as the example to all others to not step out of a narrow line the state has defined we can exist in. This FL persecution smacks of the same type of prosecute hard, fast and with impunity I see regularly.
December 20, 2010, 10:29 pmLaura(southernxyl) says:
Is not promoting pedophilia really a narrow line?
December 20, 2010, 10:37 pmOrenWithAnE says:
It would take forever?
December 20, 2010, 10:38 pmDave N. says:
As disgusting as Phillip Greaves is (I have less sympathy for him than I do for Julian Assange, and that’s saying something), I don’t see Florida actually having much of a case based on the current state of the law. It seems like a pretty clear case of prosecutorial overreach. Thankfully, the nature of Greaves’ publication makes any potential 1983 damages rather minimal.
December 20, 2010, 10:39 pmterraformer says:
I haven’t read the book so I can’t say he actually advocated the acts. I am not so sure I want to believe the sheriff’s office at it’s word. So…
December 20, 2010, 10:50 pmNo, it’s not a narrow line but today it’s pedophilia, tomorrow it will be legally releasing obtained state secrets. Oh wait… Maybe we should ban advocating the use of arms in self defense because it offends some people. I know a lot of my neighbors would support that. We don’t even ban or typically prosecute the posting of directions on how to make or manufacture explosives but maybe that’s OK. No one ever uses those. Where is the line?
Alan K. Henderson says:
The apples-to-apples comparison is The Anarchist Cookbook. An instruction guide for activities that happen to be illegal is not the same thing as the activities in question, any more than a pastry cookbook is a pastry.
So how does the law regard The Anarchist Cookbook?
December 20, 2010, 10:51 pmAnderson says:
what prevents hard core porn films from being prosecuted under this vague wording?
I dunno, but I have a two-part guess:
(1) The “likely audience” for a porn flick isn’t going to have much of a problem with it.
(2) “Serious literary, artistic, political, or scientific value” is a difficult legal standard to apply. To what extent does this value depend on findings of fact? Who are the arbiters? If three professors say it’s obscene vs. three others who say it has literary or whatever value, does a jury decide? How do you distinguish whether the jury’s been inflamed by what is, per hypothesis, a work likely to offend?
… Re: the pedo-author, I suppose whatever standard applies to The Anarchist’s Cookbook applies to his book.
December 20, 2010, 10:51 pmAnderson says:
… Cross-posted w/ Alan.
December 20, 2010, 10:56 pmOrenWithAnE says:
Ahem?
December 20, 2010, 11:07 pmLaura(southernxyl) says:
I was just about to paraphrase your argument by saying that if we don’t let pedophiles write guides to seducing children today, then tomorrow if I say that P. Obama is leading the country down the wrong path I’ll be thrown in jail, but I thought that might be unfairly hyperbolic. Normally I am not averse to considering the possibility of a slippery slope, but I can’t see this one.
The “narrow line” thing kind of threw me. I immediately thought about all the billions of books in the world that have zero association with pedophilia. I’d rather marginalize that stuff than subsume it into mainstream literature.
December 20, 2010, 11:08 pmOrenWithAnE says:
Another fairly good comparison is Hit Man: A Technical Manual for Independent Contractors, as cited in Rice v. Paladin which is cited in EV’s paper above.
December 20, 2010, 11:10 pmRicardo says:
From what I can tell, nothing in theory. If I recall correctly, Janet Reno ordered the DOJ to stop prosecuting routine porn cases during the Clinton Administration. Since then social mores have changed quite a bit with the rise of the internet and porn now gets produced and distributed by fairly large corporations who can afford lobbyists and who have achieved mainstream respectability. It might be difficult to convince a jury to convict these days while there would be a risk of political backlash. Even John Ashcroft wouldn’t go there.
December 20, 2010, 11:14 pmAnderson says:
And paladins are supposed to be lawful good ….
Thankfully, the nature of Greaves’ publication makes any potential 1983 damages rather minimal.
Because he’d have to persuade a jury, you mean?
I don’t understand, really, the idea of prosecuting the advocacy of unlawful conduct. In how many states could an author advocating gay marriage be prosecuted by that standard?
December 20, 2010, 11:14 pmDavid Schwartz says:
We have the absolute right to exercise our rights so as to victimize others. If I don’t like the fact that you do business with North Korea, I can refuse to do business with you. I can tell others not to do business with you. It matters not one whit how much of a victim this makes you. The law provides you no recourse because I am acting within my rights.
Rights define what blows are legal. If you can kill with legal blows, the law does not stop you.
What would be the point of speaking out against our enemies if we had to be super-careful not to hurt them in the process?
December 20, 2010, 11:18 pmwhit says:
depends what you mean by “victimize”
clearly speech can cause hurt feelings or even drive people to hurt themselves or commit suicide. that doesn’t necessarily mean it’s not constitutionally protected.
December 20, 2010, 11:31 pmwhit says:
the liberal-powers-that-be in WA state tried to get the seattle-pi to stop publishing a poker advice column , since among other things, that column provided url’s to online poker sites (the WA commissars have made online poker a C felony, although the state sells lottery tickets and casinos are everywhere)
they were promptly shot down, but the idea that they THOUGHT they could prevent the P-I from publishing this stuff says a lot
December 20, 2010, 11:34 pm1040 says:
Thanks, that was helpful. Well, I wouldn’t be so sure about Ashcroft – what if one of the porn stars was named Justice? Wouldn’t he be honor bound to drape her?
December 20, 2010, 11:38 pmwhit says:
those are two entirely different things
1) saying society would be better off if X was illegal
2) saying X should be illegal, given that we have a constitution
imo, one of the first things you must accept if you accept the concept of constitutional rights is lots of really good laws can’t be passed because they would be unconstitutional, and lots of really bad laws can be passed, because theya re constitutional not because they are good.
December 20, 2010, 11:39 pmAdam says:
Anyone know if the this was the same police officer/dept that employed the same tactic against Max Hardcore? As I recall that was some FL law enforcement agency as well. I think EV’s legal analysis of the case is spot on.
This situation highlights the need for some jurisdictional legislative reforms to prevent overzealous political crusading sheriff of this type from stifling online speech. I guess there is always the argument that the seller should just refrain from selling to that specific jurisdiction, but I’m unsure if that’s the right allocation of burdens.
December 21, 2010, 12:08 amDave N. says:
That’s exactly what I meant. Creeps are not sympathetic plaintiffs.
On a separate note, I don’t want to hijack the thread, but you are way too smart not to see the difference between something that is illegal under the criminal code and something that the civil law forbids.
December 21, 2010, 12:10 amDay Break says:
“Respectability”, really?
December 21, 2010, 12:13 amChris Travers says:
IANAL but I don’t think that’s the way free speech works in this country. For example, we may look at Yates v. United States or Brandenburg v. Ohio as good examples of cases where abstract advocacy of crimes was held to be within the protections of the first amendment. In Yates, for example, it was held that the Smith Act could not criminalize mere advocacy of overthrow of the United States government. And while Yates was a communist I can’t help but think the NRA has profited greatly from his victory.
AFAICS, Brandenburg and Yates establish the RIGHT as a matter of first amendment jurisprudence to advocate the desirability, righteousness, etc. of criminal acts, but they draw the line only where something moves well beyond the line of mere abstract advocacy.
If “Kill the niggers… we intend to do our part” (from Brandenburg v. Ohio) is protected speech if not both intended and likely to cause imminent lawless action, I am hard pressed to see how “it’s good to sleep have sex with children” is not.
December 21, 2010, 12:26 amChris Travers says:
I thought that was the point of
However, I think that such bans on such crime facilitating speech are really bad. Society gains far more by having such information out there where upstanding citizens can read through this sort of thing, and determine what they have to do to protect themselves and their families.
Thank goodness we don’t ban discussion of software exploits. If we did, we’d end up with horrible cybercrime problems that probably few people can imagine.
December 21, 2010, 12:31 amOrenWithAnE says:
Is the book advocacy or instruction though?
Surely the law can distinguish between advocating that citizens blow up the government and actually publishing instructions on how to make bombs?
Kink.com had a full 9 page article in the Times Magazine.
December 21, 2010, 12:32 amOrenWithAnE says:
That’s a heck of a general conclusion, but certainly one can find some nuance in there somewhere. Instructions on how to hotwire cars, for instance, is of zero practical advantage to anyone but a car thief. A diagram of how a car ignition works is invaluable to repair shops.
I think the key matter is intent — as it was in Palladin and Barnett. It’s intuitive that a security researcher discussing software exploits or a car-repair manual publisher that reveals how to hotwire the vehicle are not as morally culpable as someone whose speech is calculated or reasonably known to be directed at criminals.
I haven’t read the book, but it’s conceivable that there is a good case that it was specifically directed towards aiding criminals. If it is, it becomes much easier to justify criminalizing it (although not on bogus obscenity charges).
December 21, 2010, 12:43 amterraformer says:
US v. Featherston is a case where the writer violated an actual law (however specious it may be) and not some pseudo-random application of inapplicable statutes. The other (Rice v. Paladin) of these is a liability case, not a violation of a censor law per se. Rice has the additional honor of being a case that was poorly argued by the appellee in that they basically admitted that their publication was not only speech but of outright active aiding and abetting along with the fact they admitted they expected and wanted it to be used. This dared the courts to protect actions and not just words. And it was actions, not words that those two cases sought to rectify. I do not believe they got it right, but let’s see why.
Rice v. Paladin claims that Cohen v. Cowles Media Co and Giboney v. Empire Storage and Ice justifies their suppression of speech via the imposition of liability for the actions of others. Cohen was a contract case and was not a censorship case. Giboney equally was not a censorship case per se, as it involved the public picketing of a non union plant. The core issue was restraint of trade. They were still allowed to plead their case on the public stage in writing, in newspapers, in civil protests on the public common, etc. What they were enjoined from doing was restraining trade by their picketing of the plant itself. In both modern cases (Palladin and featherston) had simply speech, even advocacy, been the activity engaged in, there would be no question. But since the courts read into these that they were engaging in an activity and said activity had foreseeable and desired outcomes, the courts believed there was a distinction. Simply publishing information is not aiding and abetting a crime. Knowingly handing a homicidal maniac a book on bombs if you know they are homicidal and are actively seeking to kill MAY be, I grant, beyond protected speech, but restricting the mere activity of disseminating speech generally must be reviewed with the highest of scrutiny.
Had Greaves handed his book to a person who he believed actively sought to molest children and said follow these instructions, MAYBE this would extend beyond speech. But making information public and simply being responsible for it’s use will have a chilling effect.
Freedom is predicated on the idea that the people are in the best position to decide for themselves who to listen to. This scumbag is allowed to say what he wants via the first amendment. Others are free to listen or not.
Additionally no one has published actual facts about the pedophile books content so we can’t even judge for ourselves what is ACTUALLY written in it and whether or not it violates any statutes, more or less is protected speech.
But lets go to the wiki and see what has occurred thus far to further restrict speech based on Amazon’s removal of this book.
So now that Amazon has removed greaves’ book, PETA is looking to remove books that offend their sensibilities. Where do we stop? Where do we draw that line? This clearly illustrates how quickly those who seek to control others can rationalize the actions of censorship in the name of moral superiority.
December 21, 2010, 12:46 amDavid Schwartz says:
I would think that if I wanted to modify my car to make it harder to hotwire, knowing what thieves know about hotwiring cars would be extremely handy. I would imagine a car that was custom modified by an owner with information parity with car thieves would be exceptionally hard to hot wire. This won’t work at all, however, if for example, he modifies a part that thieves routinely bypass anyway.
And if I don’t know how various cars can be hotwired, how can I pick a car that’s more difficult to hotwire? And how can I confront the manufacturer and say “Why didn’t you make your cars harder to hotwire, everyone knows your cars can be hotwired by method X whereas manufacturer Z used method Y to make it more difficult?”
How can I assess how hard a car is to hotwire without this information? And why don’t I need to know this as a consumer? If manufacturer Q says their cars are harder to hotwire, do I just take their word for it?
I don’t want a world where experts have enforced information disparity such that we can’t verify their claims and just have to decide which of the dueling experts sounds more credible. People used to not thinking for themselves may disagree.
December 21, 2010, 12:50 amCornellian says:
Specifically, to be obscene, a work (1) must be, taken as a whole, erotically stimulating (in a way that is seen as “shameful or morbid”) to its likely readership, (2) must depict or describe, in an offensively explicit way, sexual conduct, and (3) must, taken as a whole, lack serious literary, artistic, political, or scientific value.
So you can offensively depict sexual conduct in a way that is devoid of literary etc. value so long as no one is turned on by it? I know almost nothing about obscenity law, but this post doesn’t leave me inclined to think the law in this area makes much sense.
December 21, 2010, 1:01 amDave N. says:
Terraformer,
If Amazon removes Greaves’ book or succumbs to PETA that is Amazon’s business, literally. It is not the government. There is no “censorship” when a private actor voluntarily declines to sell something.
December 21, 2010, 1:11 amterraformer says:
Agreed, but if you read it again, you will see I was using it to illustrate the slippery slope point and not stating it is censorship per se.
December 21, 2010, 1:17 amOrenWithAnE says:
Indeed, thus making my point that we do in fact ban teaching others how to manufacture explosives knowing that it will be used for unlawful purposes.
No argument there. But the border between speech and aiding (see, e.g. United States v. Bennett) is not so clear in this case. My opinion as of right now is that you can’t say before reading the book whether it is advocacy or A&A.
In that case it would certainly be conspiracy just as much as me teaching you how to crack safes knowing that you were planning a bank heist would make me an accomplice.
Agreed. But that leaves the door open for an A&A charge.
Why would an analysis of which cars are more difficult to steal have to include specific instructions (let’s stipulate step-by-step) on how to steal them?
This was exactly my point, actually — that the presentation of the information presents solid clues to both the intent and likely use. A book with step-by-step instructions on how to hotwire a random assortment of easy-to-steal cars leads to the reasonable inference that it is intended to further criminal theft.
Conversely, the 1992-1996 Chilton’s for Chevy trucks, despite having a circuit diagram of the ignition (among others) leads to the inference that it is not intended to further criminal theft. Similarly, an analysis of which cars are harder to hotwire — even one that discusses the security measures — is readily distinguishable from instructions on how to hotwire them. The distinction here is not at all subtle.
That is, perhaps you interpret what I said to mean something entirely different than what I had intended …
I don’t think anyone was inclined to think it made sense to begin with.
December 21, 2010, 2:02 amOrenWithAnE says:
Wherever Amazon wants to stop? It’s their business, they can stock their inventory however they want.
December 21, 2010, 2:13 amRicardo says:
Slowly but surely, yes. Credit card companies, internet service providers, major hotel chains and cable service providers are complicit in the trade. Compare to the way that Julian Assange has been treated in recent weeks.
December 21, 2010, 4:07 amCarl N. Brown says:
The book is more in the line of facilitating the commission of a crime than being pornographic.
More in common with the Paladin Press “Hitman” manual, than with “Lolita”.
December 21, 2010, 6:20 amDavid M. Nieporent says:
Or law enforcement, or car manufacturers. Or a stranded motorist who has lost his keys.
December 21, 2010, 7:08 amRyan Vann says:
I’ve not bothered reading the book, but I don’t imagine it would be anymore instructive than say the typical episode of Law and Order SVU, or Dexter. Of course, people like those shows; so, no lawsuit.
December 21, 2010, 7:14 amDavid M. Nieporent says:
How exactly can one perform that analysis unless one knows how to actually hotwire a car?
December 21, 2010, 7:41 amGideon Darrow says:
Ahem.
December 21, 2010, 8:24 amTTT says:
In deciding whether there is conspiracy or aiding and abetting, wouldn’t we have to know the communications between the undercover sheriff and the defendant?
December 21, 2010, 8:26 amAnderson says:
you are way too smart not to see the difference between something that is illegal under the criminal code and something that the civil law forbids
Ah, I was unclear. Advocating gay mariage = advocating gay sex, which, pre-Lawrence, was I think a felony in many states. I didn’t mean to suggest that anyone *today* could be prosecuted on that basis, but we are talking the very recent past here.
A better example: incest between consenting adults is a crime, so a book on how to conceal your (say) mother-son sexual relationship would be “crime-facilitating.” Yet in Switzerland, I hear, a law to decriminalize such incest is being considered. We may in 40 years shake our heads at incestuous adults, while not even imagining putting them in prison for their conduct.
December 21, 2010, 8:40 amSarcastro says:
[Additionally, not all knowledge should be viewed only through a practical lense.]
December 21, 2010, 8:50 amOrenWithAnE says:
You can’t, but that doesn’t mean you have to publish the instructions in a manner conducive to thieving.
Most computer security researchers, when publishing, will take pains to try to explain the vulnerability without making it too obvious how to write an exploit. Obviously this is a balancing act but that doesn’t mean that responsible researchers don’t try. Contrast this with a black-hat that publishes exploit code but little actual analysis of how it works.
You don’t see a distinction? Because the security community generally lauds the former and shuns the latter based on just such a distinction between explaining what a vulnerability is and, in the case of actually publishing working exploit code, dummy-proof instructions on how to attack others.
The Progressive was a prior restraint case, not a post-penalty case. What’s more, there wasn’t even a verdict — the government dropped the case. They might have won for all we know.
December 21, 2010, 9:36 amLoki13 says:
Dunno. Perhaps Nabokov might have some problems with the line in some jurisdictions. Which makes us uncomfortable.
(BTW- that principal you mentioned- he might not have been jailed, but how is his standing in the community? The First protects you legally, but you don’t have to like the speech.)
December 21, 2010, 9:39 amKen Arromdee says:
If Amazon is pulling the book because of fear of bad publicity, fine. If they’re pulling the book because they think the feds will come down onto them for it, that’s still censorship even under strict definitions since it’s government action.
December 21, 2010, 9:42 amMJC says:
I’ve always been troubled by the subjectivity inherent in the three prongs of the obscenity definition listed by Prof. Volokh. Whether a piece of literature would be safe under the first two prongs seems to depend entirely on who is reading it. The third prong is more subjective than the first two.
My question is whether we ought to consider the author’s intentions—whether they are presented as such or injected into the consciousness of a fictional character—in determining whether something passes any of the three prongs. Take Nabokov, for instance. In his most famous work, the protagonist insists, “I am not concerned with so-called ‘sex’ at all. Anybody can imagine those elements of animality. A greater endeavor lures me on: to fix once for all the perilous magic of nymphets.”
Does the attitude or agenda of the speaker in a work of literature change the degree to which we should view the work as “erotically stimulating” or “offensively explicit” or of “serious [artistic] value?”
December 21, 2010, 9:53 amBarb says:
Because our legal leaders, lawyers, cannot see much but defense for pornography of all kinds as free speech, it’s no wonder they can’t find good reason to punish a man for justifying and instructing about pedophilia.
Not all speech is morally defensible –but of course, people today can’t tell the difference between right and wrong –as Biblically predicted about “the last days.” Therefore, law, lawyers, and judges are more and more corrupted and benighted–morally ignorant.
December 21, 2010, 10:02 amShelbyC says:
Well, they’ll use their judgement. Recall the guy who published the fact that an anti-piracy technology could be defeated simply by pressing the shift key (to disable autorun). Sometimes the best way to describe a vulnerability is to describe how to defeat it. Suppose I’m selling a fancy bike lock for a lot of money and somebody says, look, I can open it by sticking a pen into it and turning. Should they not have a first amendment right to say so?
December 21, 2010, 10:09 amSarcastro says:
Because Hollywood cannot see much but defense for Twilight as free speech, it’s no wonder they can’t find good reason to punish a woman for justifying and instructing about sparkly vampires.
Not all speech is morally defensible – but of course, moviegoers today can’t tell the difference between right and wrong –as predicted in the Sarcronomicon about “People love crap these days.” Therefore, producers, writers, and vampires are more and more corrupted and benighted–morally ignorant.
[Disclaimer: I am religious, I'm just humble enough to acknowledge my own sense of right and wrong may not be correct, and that more logical analysis is needed before I'm going to project it onto society at large.
Disclaimer 2: I still love ya, Barb!]
December 21, 2010, 10:32 amguest says:
A hypothetical to assess the reason for the prosecution:
Imagine that the book contained all the same information but was framed as a cautionary work designed to help parents prevent sexual predation. The same description of pedophiles’ techniques, the same graphic descriptions of pedophile acts, etc. Surely this would be protected by the First Amendment, and I doubt many prosecutors would even think to prosecute it. So isn’t the reason for the prosecution here, and the view of some that this isn’t protected speech, the fact that the author is advocating pedophilia?
If that is so, anyone supporting the criminalization of such advocacy should have the burden of defining which illegal acts are so bad that the government should be able to prosecute those who say they are not so bad.
December 21, 2010, 10:37 amKilpatrick says:
When Cicero was denouncing Cataline in a speech, in order to end-run around the defamation rules of the time, he said things along the lines of, “Now, I will not contend, as some have, that Cataline is a tax-cheat, a liar and a scoundrel ….”
What would keep a person from writing a manual on child seduction that said things like, “Never allow yourself to be alone with a trusting child, but if your ever are in this situation, don’t make the mistake of offering it candy….”
or, in the case of a bomb-making manual, “When dealing with Ammonium Nitrate, do not allow a large quantity of it to be mixed in a 50-50 ratio with fuel oil, as this could result in an unwanted explosion ….” ?
December 21, 2010, 10:59 amChris Travers says:
This is a bit misleading:
Too obvious for lay people. If you have more than passing technical knowledge, the details of security exploits are usually quite sufficient to exploit without much trial and error.
This is indeed ON PURPOSE. Many security vendors (Nessus for example) have folks who do nothing more than read security bulletins and write exploits to test them so that they can sell scanners which automatically test for such exploits. I know this because I have received additional security bulletins from such vendors where they discovered additional exploits while trying to test the ones we discussed.
Moreover some network administrators do the same (writing their own ad-hoc scanners for vulnerabilities).
Responsible vulnerability reporting involves FULL disclosure including all information minimally necessary to exploit, but it’s timed in a way which gives the vendor a chance to fix the problem before the report is made public. Normally this means waiting 7 days for a response and then giving them a month to fix it. The goal isn’t to prevent information necessary to exploit from getting to the public but rather to ensure people have access to a fix before this happens.
December 21, 2010, 11:07 amByomtov says:
EV,
Those look awfully similar to my untrained eye. Is there a big distinction?
December 21, 2010, 11:11 amToday's Tom Sawyer says:
To be more precise, it would be like taking said bike lock, opening it with the pen, finding the exact flaw, correcting it, and publishing a paper afterwards showing the problem that you just fixed. This is how cybersecurity publishing works, which oren didn’t show in his example. Now yes, this causes problems when people don’t install the update fixing the exploit, which is why companies have moved to automated stealth updating (or better, updater worms)
December 21, 2010, 11:16 amChris Travers says:
Just to give an example of how security disclosure actually works.
A colleague of mine found a security vulnerability in software I contribute to, which affects other programs as well. This has happened so frequently that I’m trying to select an appropriate example (in our defence this was on a project we forked because it had some other security problems and the issues were not in code we had written— also it has dropped off rapidly as we have replaced the worst of the code).
Ok, so this example involves, say the ability to redirect the “css editor” in the program to retrieve and possibly edit arbitrary files including the file which contains users’ passwords. A variation of this exploit could be used to change users’ passwords.
So the first thing I do is put together a test case. I email that test case to the project we forked from and to other related projects which also forked from them. This includes detailed how-to instructions on reproducing the problem. While I’m fixing the problem on my software, I give them a week for a response. I get a response from one of the other projects challenging me to exploit it on his demo server. I take this as permission and do so. I send him the file with the password hashes. I let him know I’ll be publishing the exploit in a month and would prefer to be able to mention that it’s fixed in his project too.
No response. He doesn’t fix it. (As an aside, this developer only fixes problems which affect unauthorized login, not restrictions on what logged in users can do.)
So, a month later, well after we have the fix released, we email full disclosure lists with the problem, how to exploit it, and information as to which versions of our software contain the fix. We also mention that the other program is vulnerable too.
The fact that we do this consistently has lead to our project being graded well by the security community.
Does this facilitate exploiting the software? Yes it does. Anyone can read our reports and exploit the vulnerable versions since this is a hack that requires very little technical knowledge to exploit. However, what is important here is that it allows network administrators to verify vulnerability and take steps to mitigate that problem.
December 21, 2010, 11:22 amShelbyC says:
What would be like that? In some scenarios one might choose that approach, sure. Of course, in the bike lock hypo maybe I’d just make my own competing bike lock without the flaw then point out the vulnerability in the first product.
But you’re not arguing that saying, hey, this security product’s crap, I can defeat it by doing A & B isn’t protected, are you? That the guy who pointed out that a security technology based on autorun could be defeated by disabling autorun had to come up with a similar technology that was feasible before he could point out that the current product wan infeasible?
December 21, 2010, 11:31 amChris Travers says:
For the record, my projects frequently publish exploit code with our security advisories. First, it’s open source. The exploits contain enough info that anyone can look at the source and if they have any programming skills whatsoever, can usually write their own exploits. This avoids a false sense of security.
The key is we do so AFTER a fix is available.
December 21, 2010, 11:33 amBuffalo Bill says:
Guest, that sort of reminds me of how pornographers used earlier forgiving standards of obscenity, such as the “utterly” without redeemning social value prong of the defunct Memoirs test, to their advantage by publishing patently pornographic material, but inserting a few scientific or literary quotes. That way, prosecutors couldn’t say that the work “utterly” lacked value. Ignoring that this book is, so I heard, not pornographic and probably not obscene, I don’t think you can get around obscenity by trying pass it off as something else when it is clearly not.
Byomtov, I think that’s the difference between Memoirs and Miller. Memoirs temporarily established an “utterly without redeeming social value” portion of the test, and it proved too difficult for prosecutors since they’d have to prove a negative, that every aspect of the work had no redeeming social value. Miller relaxed the standard by allowing the work as a whole to be taken into account and evaluated for its “seriousness.”
December 21, 2010, 11:37 amAnderson says:
predicted in the Sarcronomicon
Now *that* is a book likely banned in most jurisdictions, given its unholy power to induce fits of eldritch sarcasm in its innocent readers.
December 21, 2010, 11:37 amKatahdin says:
Yet I see the ‘Dupont Blaster’s Handbook’ for sale in used bookstores (and bookfinder) all the time. As a practical matter, distinguishing between ‘here is how to blow up X for legal purposes’ and ‘here is how to blow up X for illegal purposes’ seems to be a fairly useless distinction.
Moreover, IIRC from news articles a few days ago during the Amazon flap, the book’s theme is described as ‘how to be a pedophile without doing anything illegal’. That seems to undermine a ‘for unlawful purposes’ argument.
[I hope I don't get busted for my copy of The MIT Guide to Lockpicking].
December 21, 2010, 11:38 amAnderson says:
… I think publishing “how to rob a bank,” “how to hack a database,” should be legal, not least because when this info is public, defense becomes easier.
December 21, 2010, 11:42 amChris Travers says:
Thanks! Just downloaded a copy!
December 21, 2010, 11:42 amChris Travers says:
Agreed. Not sure it is a Constitutional so much as a policy issue though.
December 21, 2010, 11:43 amTed says:
I’m curious. Do you think that the concept of pedophilia is beyond rational discourse. Do you think advocacy of pedophilia as lifestyle is less worthy of open discussion than advocacy of other lifestyles? It may indeed be wrong or evil, but shouldn’t it prove itself to be so, rather than just based on what others say?
I see that others have mentioned Nabokov’s Lolita. There are many other such novels in “mainstream” literature. Should what you think be “marginalized” be decisive of what should be marginalized? How about if we make a deal? I won’t read anything you don’t approve of reading and you agree never to read anything I don’t approve of reading. OK? I’m sure we’ll both be better for it!
This is a great statement and describes the starting framework of constitutional republics very concisely.
Who cares what the “intent” of the author is? Do we want censorship to turn on something as subjective as the intent of the author? That seems to be a very, very poor way of limiting speech.
Don’t be coy. What lenses should it also be viewed through?
I see it. Is this a distinction on which government censorship and criminal liability should be determined? Scary.
No doubt! Damn kids these days, even older persons! It’s especially frustrating when those same people can’t tell the difference between legality and morality! I tell you, I wish Jesus would just come back and sort all this shit out…
December 21, 2010, 12:36 pmShelbyC says:
If it doesn’t, that will create some interesting issues wrt reliance. Is this guy entitled to a defense that what he was doing was protected by scotus precedent at the time? There’s no settled law on the issue.
December 21, 2010, 12:43 pmptt says:
And probably quite a bit less titillating.
December 21, 2010, 1:31 pmChris Travers says:
Indeed, what is more beyond the pale? Advocacy of pedophilia? Or the advocacy of genocide at issue in Brandenburg v. Ohio (“Kill the niggers… we intend to do our part” is what Footnote 1 said were articulable fragments of the speech on the recording).
December 21, 2010, 1:51 pmChris Travers says:
Also there is this which is a general guide to hacking software in certain ways. There is also this paper on hacking databases.
Note that without these papers being generally available, software security expertise more generally would be severely restricted.
December 21, 2010, 2:00 pmyguy says:
You understand that this premise is inimical to any reasonable interpretation of the Constitution, right?
December 21, 2010, 2:11 pmyguy says:
If you don’t think people are victimized by material intended to help pedophiles fulfill their desires, then you don’t think too good.
December 21, 2010, 2:14 pmwhit says:
that’s not what i said at all. read it again, this time for understanding and content
December 21, 2010, 2:19 pmjames says:
Like that book on counting cards – how many pit dealers and those who shape casino policy have read it and the derivative works? Very useful for non-criminals.
December 21, 2010, 2:20 pmwhit says:
no, it’s not. free speech can often victimize others. there is a price to freedom. it means govt. can’t and won’t protect you from all harms.
part of living in a free country is recognizing that sometimes you have to put up with some crap and daddy govt. can’t protect you
December 21, 2010, 2:24 pmhappycynic says:
what prevents hard core porn films from being prosecuted under this vague wording?
Mostly politics. From Clinton on the DOJ and various state U.S. Attorneys have simply not been interested in prosecuting mainstream pornography. The subjectivity of the law makes trial an iffy proposition and thus not the best career path (i.e., why spend years on a trial only to risk losing?). Obscenity tends to get prosecuted only on the extremes (scatology, bestiality, rape, etc.). Max Hardcore was probably the “softest” obscentiy to be prosecuted. Any less extreme than that and you likely aren’t going to get any kind of federal interest. Child porn, of course, is a whole different subject and is routinely prosecuted.
December 21, 2010, 2:30 pmLaura(southernxyl) says:
Ted.
“I’m curious. Do you think that the concept of pedophilia is beyond rational discourse.”
No.
“Do you think advocacy of pedophilia as lifestyle is less worthy of open discussion than advocacy of other lifestyles?”
Discussion of advocacy? No, that’s what we’re doing here. Advocacy? Yes.
“It may indeed be wrong or evil, but shouldn’t it prove itself to be so, rather than just based on what others say?”
I have a brain, a heart, and a conscience. So I don’t base my opinion on what others say. Not sure why you think I do. I can’t remember anything I’ve written that would cause you to think that.
Now, I’m curious.
Do you accept that other people may see things differently than you do easily, or does that concept cause you discomfort so that you can only deal with that fact through sarcasm and contempt?
December 21, 2010, 2:31 pmChris Travers says:
You also have the fact that the 10th Circuit came down hard on Reagan-era multivenue prosecution tactics, which makes prosecutions quite a bit more iffy than they used to be.
December 21, 2010, 2:33 pmSarcastro says:
[Richard Feynman -- "Physics is like sex. Sure there are some practical benefits, but that's not why we do it."
IOW, knowledge for knowledge's sake. I, for one, view curiosity and art as some of humanity's most noble pursuits.]
December 21, 2010, 2:33 pmChris Travers says:
BTW, this is an interesting issue, and it has strong elements of both policy and Constitutional law considerations. IANAL of course.
On a Constitutional level, the fact is that while practical speech IS protected, it is not AS protected as purely expressive speech. “Everyone has a moral obligation to go out and kill black people” is probably at least in theory protected at least when speaking to a sympathetic audience, while handing someone a gun and saying “go kill the black folks down the street” most certainly is not. “Here’s the best way to go kill black folks” is a more open question– there are some protections but far fewer. Similarly posting designs of new generations of nuclear weapons could be regulated because of the practical content as opposed to the expressive elements.
A good way to think about this is the software-as-speech cases from the 1990′s and 2000′s (dealing with encryption, circumvention tools relative to the DMCA, securities law, and other issues). Software is speech and protected as such, BUT, as a practical tool, it has fewer protections than purely political speech would have. Consequently software exists clearly on the line as speech-as-conduct, and the conduct elements can be regulated.
The courts have struggled greatly with the software-as-speech cases. It’s not clear to me why an online magazine cannot link to the DeCSS source code, but someone can publish sufficient information to allow someone reasonably skilled in the art to create real-time cryptographic attacks against the same cypher in a dead-tree journal format.
But on a policy level, I think allowing for how-to information regarding commission of crimes is good policy. Personally I’d prefer to know how to hotwire my car, and how easy it is to do. This would allow me to take precautions against this. I’d note that the two cars I have owned have been the subject of attempted thefts, but both were unsuccessful. It would also place more emphasis on vendors’ responsibility for countermeasures, and for the ability to retrofit cars with countermeasures. I’ve known others whose cars have been successfully stolen.
Books on how to commit contract murder ought to be extremely useful in police stings. Books on how to rob a bank would be extremely useful for private security consultants. Books on how to cheat on taxes would be helpful for auditors, both for the IRS, and for external audits for corporations. Indeed, I think books on how to commit embezzlement, for example, would be of interest in the accounting work that I do in terms of how to understand the countermeasures.
Policy-wise, I think these should be allowed. In terms of Constitutional law, though, I’m not sure where to draw the line other than where it is today.
December 21, 2010, 2:52 pmMike Jesse says:
So, wait, the statement “I believe saying ‘I believe taboo X should be legal’ should be legal” is legal, but actually saying “I believe taboo X should be legal” isn’t/shouldn’t be?
We are well and truly down the rabbit hole here… The line you draw is sincerely between advocating for advocating a position and actually advocating for it?
If advocating the legalization of an illegal thing isn’t legal, it seems utterly irrational that advocating the legalization of advocating illegal things would not be, also, illegal, since it’s the same thing, just up to a meta level.
My brain hurts….
It seems to me, we either allow advocacy, or we don’t. Trying to draw distinctions on levels of advocacy, next thing you know we’ll be counting pin dancing angels.
December 21, 2010, 2:55 pm1040 says:
I am surprised that case didn’t go all the way to SCOTUS. Surely, a court that struck down Ashcroft v Free Speech Coalition would also strike down his obscenity conviction?
December 21, 2010, 3:03 pmNickS says:
“Your right to swing your arms ends just where the other man’s nose begins.” Speech, however obscene, should not be restricted. Even if you are preventing your audience from not hearing it, that’s kidnapping and/or assault, not a free speech issue.
December 21, 2010, 3:04 pmLaura(southernxyl) says:
Mike, you’re making it harder than it is.
1 – Is it okay to discuss the advocacy of pedophilia? Yes, that is what we are doing here.
2 – Is it okay to advocate pedophilia? No.
Just as it is OK to discuss murder-for-hire but it’s not ok to solicit it.
This is my opinion, to which I am entitled, and with which you certainly may disagree.
December 21, 2010, 3:09 pmyguy says:
Yes it is.
Sure, if it is exercised irresponsibly; but there is no right to speak irresponsibly, and no such right is properly deemed protected under the Constitution. That’s the point.
December 21, 2010, 3:19 pmTed says:
Just to be clear. Are you saying that your line is drawn between talking about whether something is ok, and actually adopting a position on whether something is ok? So, it is ok to play devil’s advocate, but not actually believe the position your advocating? If this is accurate, I guess I don’t see why that distinction is important or relevant.
The distinction I was trying to make was between letting an idea speak for itself versus only allowing others to speak for it. If pedophelia, or any other idea, is wrong or evil, it should be evident from its flaws. Those flaws are best exposed by its own advocates (and rebuttal from dissenters). IMO, that’s the best way to determine, on an individual basis, which ideas should be adopted and put into practice and which should be rejected, left to wallow in the realm of imagination.
I don’t think pedophilia has very solid reasoning behind it, for pretty well-establish reasons, consent, harm, et al. As such, I think laws prohibiting it are just dandy. However, I don’t think that advocates should ever be prohibited from trying to make their case.
Once you cross the line into making advocacy of certain positions illegal, rather than just the advocated act itself, you cross into some damn murky and subjective territory about people relying on their “brains, hearts, and a consciences.”
This this a compound question:
1) I do easily accept that others may see things differently.
2) I do not know if they easily see things differently; I am not them.
3) The fact that others see things differently does cause me discomfort. This is because I don’t think most other people are idiots and generally have reasons for their professed positions. Thus, it makes me uncomfortable to know that other non-idiots have arrived at different conclusions on issues, and particularly when those conclusions are mutually exclusive of my own conclusion on the same issue.
4) I deal with that fact in many ways, not only through contempt and sarcasm.
5) When I show contempt, it is usually a result of frustration due to a real or perceived inability to communicate within the bounds of any established principles. My response to Bard is such an instance.
6) Sarcasm is different, as sarcasm is often a very effective way of highlighting a specific inconsistency or flaw in a position; and it is also often more interesting to read/write. See Sarcastro’s normal comments vs. his bracketed comments. I admit that my sarcasm is sometimes not as effective, or well crafted as others’, but I do still find it useful.
So, now back to you; you noted:
Why do you think your opinion is unpopular? I know that it is, particularly on this topic, but do you think it is? Do you think it should be?
December 21, 2010, 3:23 pmMike Jesse says:
A discussion where it’s Verboten to take one side is going to be a very dull discussion. So, when you have a discussion on the advocacy of anything, presumably you have some people supporting, and some people condemning it.
I don’t think I’ll be inviting anyone advocating some of the things mentioned to any dinner parties, but should they be criminally liable, for simple advocacy? I’d say certainly not.
And if they are, why is it ok to advocate at a meta level, advocating in general being legal, but when you go down a level, advocating for a particular illegal act to be legal, it’s not ok?
Again, not the sort of folks I’d want to ever be around, but I kind of prefer for crimes to have actual victims, not just theoretical, hypothetical, future possible victims, with the assumption of actual, on the book crimes in the interim.
December 21, 2010, 3:25 pmChris Travers says:
“Kill the niggers… We intend to do our part….” was ruled protected in Brandenburg v. Ohio.
Also “responsibly” is very much in the eye of the beholder. Advocating the belief that it’s desirable for the people to violently rebel against the federal government is something the NRA could easily be accused of doing, and it’s something the Communist Party USA WAS prosecuted for doing before that was declared protected speech too in Yates v. United States. But I suppose what’s responsible for the NRA is irresponsible for the Commies, right?
December 21, 2010, 3:30 pmChris Travers says:
What about providing how-to information for folks to solicit it.
Also is it OK for police to solicit murder-for-hire as part of a sting?
December 21, 2010, 3:31 pmTed says:
Do you see a difference between these statements:
1) “Hey, Bob, I think that Tony’s book advocating murder-for-hire should be protected speech and Amazon should not censor it.”
2) “Hey, Bob, I think murder-for-hire should be legal.”
3) “Hey, Bob, I’ll give you 50 bucks to kill Tony.”
In you opinion, which, if any, should I be subject to arrest, fine, and/or imprisonment?
December 21, 2010, 3:32 pmChris Travers says:
In Free Speech Coalition, the court included dicta about the obscenity standard being Constitutionally permissible, however.
December 21, 2010, 3:33 pmChris Travers says:
I think #3 would require more context before being subject to arrest, fine, or imprisonment. Maybe its an inside joke?
December 21, 2010, 4:17 pmTed says:
Sure. But intent is established by circumstantial evidence. Don’t you think that statement is enough, without more, for a reasonable jury to find intent element satisfied?
December 21, 2010, 4:22 pmLaura(southernxyl) says:
Can you not answer your own question by re-reading my statement, which you quoted?
December 21, 2010, 4:23 pmChris Travers says:
Beyond a reasonable doubt? Nope. Now, maybe there is a history or a motive. But without at least one of these things, no.
It’s like saying to one’s child, “If you don’t do what I say, you’re dead meat.” Could a reasonable jury, based on nothing else, find this constitutes intent to kill?
December 21, 2010, 4:24 pmMike Jesse says:
Not without putting words in your mouth he couldn’t, which is presumably why he asked.
However, I’ll take a shot, and say you’d draw it between 1 and 2, based on your comments. Which seems nonsensical to me, for reasons I went into in my previous posts. However, if you answer the question yourself, we’d not have to guess at your answer and respond to guesses……
December 21, 2010, 4:30 pmTed says:
Of course I can answer it, I wrote it; only #3 should potentially give rise to criminal punishment. But I’m more interested in your answer and weather you agree that both #1, #2 and #3 advocate something, and that only #3 should be illegal, and not because of it “advocation?”
December 21, 2010, 4:31 pmTed says:
Yeah, I’ll concede this one. I was thinking that if the evidence showed that Tony turned up dead with Bob’s finger prints on the weapon, but those facts would themselves constitute additional circumstantial evidence of my intent. Thus, I respectfully modify my question to reflect potential criminal liability. Fair ’nuff?
December 21, 2010, 4:34 pmChris Travers says:
Sure. I’d agree it would have the potential. I was thinking of a circumstance where Bob stands to profit from Tony’s death and/or there is a history of emnity between them. That might go somewhere towards proving intent too.
December 21, 2010, 4:40 pm1040 says:
Therein lies the road to banning Rushdie’s Satanic Verses.
I don’t buy into the exceptionalism talk as a proxy for jingoism, but one of the truly great American traditions is its generally broad protection for speech, which is fairly unique in the western world, and even moreso, when compared to other countries.
December 21, 2010, 4:42 pmyguy says:
Who gives a damn?
Which is why we need jurists who understand that justice can no more be found by poring through reams of case law than God can be found by memorizing the Bible.
December 21, 2010, 4:48 pmTed says:
What qualities would these jurists have? If there is no reliance on case law, what would a decision from your jurists look like?
December 21, 2010, 4:51 pmChris Travers says:
A lot of people care. Many are unhappy with it today. Many are glad of it today. I personally am very glad that we have such impressive free speech protections in this country.
How important is it for people to be able to ask a lawyer what is permissible and have the lawyer give them an answer that’s not likely to land them in trouble in court?
December 21, 2010, 4:55 pmTed says:
Seconded. I too care a lot about robust freedom of speech. I wish protections were broader.
December 21, 2010, 5:10 pmyguy says:
Sure it does, under such twisted definitions of “responsible” as Islamic tyrants are amenable to.
December 21, 2010, 5:13 pmChris Travers says:
Agreed. Humanitarian Law Project should have gone the other way.
December 21, 2010, 5:31 pm1040 says:
Ah, I see that you meant the “responsible” use of the power to declare speech “irresponsible”. In that case, what could possibly be problematic?
December 21, 2010, 5:36 pmyguy says:
That ability is certainly a necessary component of justice, but a moment’s thought should reveal that it’s hardly sufficient by itself.
December 21, 2010, 6:02 pmChris Travers says:
But if you can’t look to case law to resolve ambiguous points, what is the alternative? Just live with a huge no-mans-land where you venture into only at your own peril?
December 21, 2010, 6:08 pmJohn Herbison says:
This case calls to mind the language of Justice Frankfurter’s dissent in United States v. Rabinowitz, 339 U.S. 56, 69, 70 S.Ct. 430, 436, 94 L.Ed. 653 (1950): “It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.”
Leaving the First Amendment questions to one side, if I were a Polk County, Florida juror, I would have difficulty convicting if Mr. Greaves’ only nexus to Polk County is mailing a book addressed to there at the request of law enforcement. If the book is obscene, (which I seriously doubt,) then the deputies who imported it into the jurisdiction would share in any moral culpability, if not criminal culpability, IMHO.
December 21, 2010, 6:51 pmDavid Schwartz says:
No, it’s the cornerstone of any reasonable understanding of what it means to have a “right”. If I can exercise my rights so as to hurt you, that’s your problem. You have no recourse from the law.
I notice you didn’t respond to my example. Suppose I don’t like your view of rights, and I decide to stop doing business with you. I also publicize a few of your comments on this blog with the note, “yguy doesn’t believe people should have the freedom to exercise their rights. Don’t do business with him.”
You have no recourse at law no matter how much this hurts your feelings, hurts you economically, or no matter what extent it victimizes you. Why? Because I have the right to state my opinion of your arguments. I have the right not to do business with you if I disagree with you. Others have the right not to do business with you if they disagree with your views. You have no recourse at law no matter how much this hurts you because we are exercising our rights.
December 21, 2010, 9:55 pmOrenWithAnE says:
There’s really no reason for this, IMHO. If you describe the exploit in enough detail, any competent security researcher can put it together (as you note above at 11:07).
Releasing exploit code, even after a fix is published, is just fodder for the script kiddies to attack anyone that’s not prompt about updating. The code should certainly be written do make sure you fully grok what’s going on, but is it that bad to keep it to yourself?
December 22, 2010, 8:54 amDavid Schwartz says:
Without released exploit code, how can people confirm that they have properly implemented the fix?
Without released exploit code, how can people convince themselves that the exploit is real? There are many ‘exploits’ whose theoretical explanation can be provided in precise detail without it being at all clear whether an exploit can be crafted or not. Some exploits, with their fixes, went with the fixes unimplemented for years until exploits were publicly released. (Since it was believed to be impractical for anyone to fashion an exploit.)
I think you’re still reasoning from the default assumption that experts should have information non-experts do not such that non-experts cannot check the advice of their experts even if they should have the mind to do so. This reflects a fundamental conceptual disagreement with my view of experts. My view of experts is that an expert is not someone who has secret knowledge so that he can tell you what to do, but an expert is someone whose claims check out when you investigate them. An expert is someone who presents arguments that we accept because of their persuasive force. This works only if non-experts have access to the same information (should they wish to expend the effort to collect it) that experts do.
In any event, those willing to malicious exploit a known flaw will be willing to invest far more resources than those trying to make sure their private systems are free from that flaw. So providing enough information for the latter group but no the former is impossible. A slight information disparity disadvantages the latter more than the former.
The fundamental problem is this: If you make it difficult for malicious people to fashion an exploit, there is no incentive for lazy people to implement the fix. Why fix a flaw that cannot be exploited by malicious people? If your goal is fair notice for the good guys, this doesn’t matter. But if your goal is actual security, this matters a lot.
December 22, 2010, 10:08 amyguy says:
Sure it is, if by “reasonable” you mean “crazier’n a junkyard dog on crack”.
December 22, 2010, 12:30 pmTed says:
Wow, yguy, when you put it like that, we actually agree! I respect how you are able to answer your own questions by clarifying the terms you use.
December 22, 2010, 1:10 pmBarb says:
It’s not humility at work in you, Sarcastro –(I love you, too) it’s lack of conviction about the obvious nature of sin –as in porn and pedophilia.
Porn stars –the girls –are someone’s daughters. Is this the life any responsible parent wants for his daughter? to prostitute herself in pictures for the adulterous/fornicating lust of men? Pedophilia, erotically described or not, is a grievous wrong against youngsters by adults.
If you can’t see that, being humble is neither your virtue –nor your problem.
December 22, 2010, 1:37 pmChris Travers says:
There are actually a couple reasons:
1) This allows network admins who may not have the skills to write security exploits to write their own testing scripts.
2) The exploit code serves as a bit of a reference as to how an exploit might work, allowing network admins to better consider security countermeasures.
3) It shows without a doubt that the issue is remotely exploitable (due to the nature of our software, all exploits are usually remote ones).
There are a few cases where we don’t do this. These include cases where the problems are so pervasive (the SQL injection fixes in LSMB 1.2.0 for example) where any exploits are so underrepresentative as to be meaningless for testing. In general we leave it to programmers in those cases to write their own exploit tests. Another might be XSRF or data injection cases where they cannot be safely tested on a live system, or where an attack requires sufficient insider knowledge that it cannot be properly automated by a complete outsider.
Interestingly enough, our approach has sometimes lead to major security vendors contacting us when they found our fixes uncovered other security problems that evaded our review, and its always lead to positive feedback. Indeed we’ve picked up major contracts because of this approach.
Also in our specific case, we forked from another project due to the unwillingness of the author there to fix security flaws. Keeping up the publication of exploit code has been one of the few things that has induced him to fix problems that affect both systems.
(As a side note, LedgerSMB 1.0.x had four security releases each with multiple bugs fixed, 1.1.x had about 12, but lasted much longer, and 1.2.x has only had a few security problems found outside of new forms of exploits for web apps. We expect 1.3.x to have no new security flaws found in the new code, and for this to continue past 2.0.)
December 22, 2010, 2:48 pmChris Travers says:
I don’t believe in any concept of sin. Of course, I’m a polytheistic heathen.
December 22, 2010, 2:53 pmKanageloa says:
Texas country justice would say,”The slimey sons a bitch just needed killin.” I wouldn’t go that far but maybe a good public whip lashing would bring some justice and realism to tv news. Wow, I can imagine the headlines now………
December 22, 2010, 3:30 pmTed says:
I guess we should just outlaw anything that “responsible parents” wouldn’t want their children doing then. Gee, why didn’t the silly founders just write that down…could have avoided a lot of problems I would think. I wonder what a responsible parent would think about having their son/daughter grow up to be involved in, or the leader of, a cult?
December 22, 2010, 3:53 pmChris Travers says:
Personally I’d like convicts to be able to choose a lashing in lieu of a long prison sentence. I think that might do wonders for the recitivism rate and the public expense of imprisonment.
December 22, 2010, 4:12 pmwhit says:
you clearly don’t understand the 1st amendment. i’ll let others school ya on it. in brief, saying speech is irresponsible in no ways says it’s not constitutional protected.
December 22, 2010, 4:48 pmwhit says:
advocating something, specifically that it should be legal in this case is not “soliciting it”
those are ENTIRELY different things.
you can’t have free speech in any way, if you can’t advocate that a currently illegal act be made legal
that’s about the most fundamental reason FOR free speech. advocating peacably for change in the law.
speech that is designed to persuade, point out perceived injustice, etc.
December 22, 2010, 4:51 pmTed says:
Any suggestions on conversion formulas?
December 22, 2010, 4:52 pmwhit says:
based on the scotus’ history of looking to foreign nations for constitutional guidance, i suggest they ask singapore.
December 22, 2010, 4:56 pmyguy says:
Then you think laws against libel and slander, and against divulging classified information, are unconstitutional. Right?
December 22, 2010, 5:10 pmwhit says:
no, but there is more to libel and slander than being merely irresponsible.
again, saying speech is irresponsible does not say it is unconstitutional.
hth
December 22, 2010, 6:17 pmyguy says:
Not really. The consequences can vary enormously from one case to the next, but the act itself is essentially telling lies so as to defame, and only an idiot would claim it ought to enjoy protection under 1A.
Vacuous repetition is never helpful, so thanks for nothing.
December 22, 2010, 8:09 pmDavid Schwartz says:
No, I don’t. But it’s not because they victimize others or because the speech is irresponsible. These are extremely narrow exceptions that are not based on any broad notion that rights cannot be exercised so as to harm others. We need rights precisely to define how we can harm others should we choose to do so. (A ‘no harm’ legal principle would prohibit almost every action, most actions create winners and losers.)
The laws against divulging classified information are the best ones to use to explain the difference. First, United States laws against divulging classified information only reach those who have agreed to hold information secret (probably anyway). That’s why we can’t figure out how to prosecute Julian Assange despite the fact that he clearly divulged tons of classified information.
Now, imagine for a second if we held that we couldn’t prohibit divulging classified information even if you had agreed to hold information secret. What this would mean was that effectively, you could not agree to hold information secret because an unenforceable agreement is not much of an agreement at all.
In other words, laws that make contracts that prohibit divulging classified information enforceable prevent a person’s rights from being a yoke on that very same person. Imagine how hard it would be to get a job as a corporate spokesperson if it was unconstitutional to fire you for publicly saying the company and its products suck.
You still haven’t responded to any of my hypotheticals, despite responding to me and despite my specifically asking you to do so. This me wonder how much longer any presumption that you are arguing in good faith can last. It could really be that you’re just not familiar with the American notion of rights — it is nothing whatsoever like the notion of rights you seem to have.
December 22, 2010, 9:00 pmChris Travers says:
Nope. Defamation laws are generally narrow, and have a number of elements each of which must be proven. Laws against divulging classified information by those the government gives the information to are also Constitutional. However, espionage as in the Assange hypothetical case, should be entitled to a first amendment defence.
It’s not enough for us to decide that something is irresponsible. I think there have to be other elements.
December 22, 2010, 10:12 pmquestion says:
You don’t decide. yguy does. That’s what makes it ok, dontchaknow?
December 23, 2010, 1:33 amAary says:
That is a very strange ruling. My understanding is that the law makes it illegal to use a “captured” (e.g. real, rather than “invented”) image of a child to construct pornography.
For example, a picture of a child rotoscoped, photoshopped, or otherwise manipulated into pornographic material would be considered child pornography, while a drawn image that used non-pornographic reference pictures would not be.
Somewhat confusing distinctions, aren’t they? Do you have more information about the case?
“But I think society is not better off for tolerating them, but worse off.”
December 23, 2010, 3:43 amFortunately, peoples’ opinions do not determine a law’s constitutionality.
Chris Travers says:
I’d actually go further and say that there is a first amendment right to tolerate or not whatever speech we want, and that it’s a good thing our Constitution generally prohibits the government from getting involved.
December 23, 2010, 11:26 amyguy says:
There aren’t any that don’t imply irresponsibility on the part of the disseminator of information.
December 23, 2010, 1:12 pmChris Travers says:
Agreed, but they all imply a great deal more than irresponsibility, do they not?
December 23, 2010, 1:16 pmyguy says:
They imply significant harm as well; but that an irresponsible statement fails to cause significant harm in the eyes of the law is not to say there is any right to make such a statement, much less that such a right ought to be actively protected by any government entity.
December 23, 2010, 4:04 pmChris Travers says:
So do you think the court was wrong in Brandenburg and that advocacy of genocide in the abstract should be subject to criminalization?
December 23, 2010, 4:57 pmohwilleke says:
FWIW, bail was set at $15,000 cash (not personal recognizance), which realistically requires either that much personal cash on hand, or a $1,500ish non-refundable bail bond.
The charge is the case is obscenity, not child pornography or crime facilitating speech; a minor felony.
Obscenity convictions based on text or drawings, rather than realistic images of sexual acts are very rare, but not unprecedented. A plea bargain producing a conviction was obtained by prosecutors in a case involving a manga (Japanese comic book) depicting child sexual activity, and a couple of prosecutions have been obtained convictions involving text alone, so it is not a per se requirement.
One constitutional issue, in addition to the first amendment claim, is whether this case really meeets constitutional standards for criminal jurisdiction, a practical consideration of great importance because the Florida county in question set this up as a sting of someone who had no pre-existing connnections to the county absent its affirmative acts to set up the case, and it is a very inconvenietnt venue with a very unfavorable jury pool.
December 23, 2010, 6:15 pmyguy says:
Dunno, haven’t read it.
I don’t consider that irresponsible of itself, as it’s conceivable that Israel will not be able to live in peace except by wiping the Palestinians off the face of the Earth.
December 23, 2010, 6:25 pmChris Travers says:
Brandenburg involved speech at a KKK rally to the effect of:
“Kill the niggers… We intend to do our part… Send the Jews back to Israel…”
Brandenburg was prosecuted essentially for domestic terrorism but the court held that this political speech was protected. Disagree?
December 23, 2010, 6:55 pmyguy says:
Yes.
December 23, 2010, 8:08 pmChris Travers says:
Where do you side on the idea that it’s protected speech for the Communist party to say that it will (eventually) be necessary and desirable to overthrow the government by force? The Supreme Court held this was protected speech in Yates v. United States. Disagree?
December 23, 2010, 8:25 pmyguy says:
Yes.
December 23, 2010, 8:45 pmLaura(southernxyl) says:
You’re joking, right? Justices aren’t people and they don’t render opinions?
(Link to principal story and docs here.)
December 23, 2010, 10:00 pmChris Travers says:
Ok, so when the NRA says that the second amendment is a protection for our moral right to rebel, should that be protected?
December 24, 2010, 12:26 pmyguy says:
You can’t be serious. If there is anything the Framers were intensely aware of, it is that armed rebellion is a decidedly responsible act under the right circumstances.
December 24, 2010, 1:45 pmChris Travers says:
So advocating the moral desirability of armed rebellion in the abstract should be protected by some speakers and not others, right?
December 24, 2010, 1:51 pmyguy says:
No, but neither klansmen nor communists argue for armed rebellion in the abstract, but as a means to an end for which “irresponsible” is an egregiously inadequate pejorative.
December 24, 2010, 3:02 pmChris Travers says:
So do Democrats or Republicans have more protections if they want to advocate armed rebellion?
December 24, 2010, 3:19 pmyguy says:
Whatever.
December 24, 2010, 3:54 pmsecretsex.6te.net says:
H…..Incredible.
January 12, 2011, 12:09 am