Note of 2012-Nov-8: read The Collapse of Complex Societies by Joseph A. Tainter, and my own online book, Returning to Eden. And buckle up, it's gonna be a wild ride.
Note of 2012-Jun-29, revised Jun 30-Jul 3: Yesterday, the Supreme Court ruled in National Federation of Independent Business v. Sebelius (regarding the PPACA, aka “ObamaCare”) that Congress can use its taxing power to positively compel behavior by imposing a tax on those who remain inactive when Congress has demanded action, effectively announcing the nullification of what remained of the Thirteenth Amendment ratified on 1865-Dec-6 (“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”) and laying the foundation for totalitarian tyranny.
The ruling rests in principle on the Sixteenth Amendment (ratified 1913-Feb-3), which provides that “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census of enumeration.” As I wrote more than ten years ago, this amendment (the “income tax” amendment) effectively repealed the Thirteenth Amendment, reestablishing de jure slavery. Moreover it effectively exempted Congress from the provisions of the Fourteenth Amendment, which provided that no state can “deny to any person within its jurisdiction the equal protection of the laws.” Since the moment the Sixteenth Amendment was ratified, the people of the United States have been subjects of majority will as determined by Congress, as Jean-Jacques Rousseau might prefer.
The rationale in a nutshell is that Congress can impose a tax uniform on everyone (Article I Section 9 paragraph 4, “No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.”), and can then use the Sixteenth Amendment non-uniform taxing power to refund that tax selectively. Again the fault lies with the Sixteenth Amendment.
The Sibelius ruling is in plain error on trivial technical grounds. For example, it holds that the PPACA imposes a penalty for purposes of parliamentary procedure (PPACA started in the Senate, but Article I Section 7 provides that “All bills for raising revenue shall originate in the House of Representatives”) but imposes a tax for purposes of regulatory reach (avoiding limiting principles already identified in the Commerce Clause (Article I Section 8 para. 3). But the PPACA could avoid these technicalities with only the slightest nudges to its language and mechanism of passage. One consequence of the ruling (and legal realities), though, is that the PPACA can (and very well may) be repealed with a simple majority vote in the Senate, through the interchamber “reconciliation” process, with no opportunity for PPACA proponents to filibuster.
Chief Justice John Roberts wrote (p.12) “It is not our job to protect the people from the consequences of their political choices.” But of course this is precisely the purpose of judicial review, as established in Marbury v. Madison (1803), which Roberts cites only to pretend that it is not germane. By openly refusing to confine Congress to the procedures imposed on it by the Constitution, he has undermined the authority of the Court and the legitimacy of the Congress, which may be happy events in any case.
With this ruling, the national government has plainly arrogated to itself plenary police powers, ending a 220 year era of government of limited and enumerated powers. Inevitably now, the IRS will come to more closely resemble the Stasi of communist East Germany, with the populace bribed to betray itself by rewarding those who inform on the noncompliant with a bounty funded by the spoils of enforcement actions. The tax “audit” will become a comprehensive behavioral audit, in which the victim will be compelled to expose his private affairs to prove compliance with the will of the national government, or be summarily beggared (or, indeed, buggered..). Judicial recourse will be only a recapitulation of the demands of the IRS, in which the victim must prove his innocence by demonstrating his compliance. Fortunately, no one can prove a negative or defy the laws of nature regardless of the government's demands, and a contingent of the people will recognize this and remain uncowed even as the national government collapses under the weight of its own contradictions and foolishness.
Still, exercise of the rights enumerated elsewhere in the US Constitution — particularly speech, press, assembly, heterodox religion (i.e. any creed other than welfare state bourgeois socialism as promulgated by the national government), and of course the keeping and bearing of arms — will be made ever more awkward and perilous. Henceforth the struggle for liberty in the states will be a struggle to escape the reach of a menacing, teetering, illegitimate, morally and fiscally bankrupt national government and its client institutions (chiefly, large corporations and academia) — though of course this was already our situation. The four justices that dissented from the Roberts opinion suggest where this is headed, when they write that “Taxes have never been popular, see, e.g., Stamp Act of 1765” (p.150). The Stamp Act set the stage for the American Revolution. In the end, the King's men were expelled, though there was much bloodshed. The American Civil War of 1861-1865, which established the nationwide abolition of slavery that endured until ratification of the Sixteenth Amendment on 1913-Feb-3, was more awful by far. The next war, if we resolve our differences with war, will be even more horrifying.
Note of 2011-Nov-15: with government and entertainment industry attacks on Internet free speech at a fever pitch, I have determined that it's important that my collection of articles on free speech (kept current as of this writing) be publicly available for the moment despite the evident risks. It would be particularly rich if a lawsuit were filed for purely educational, non-commercial, gainless republication of an article promoting free speech... Also, this chapter of my AMPP compilation shows exactly why the rest of the AMPP article collection is not currently publicly available.
2010-Sep-28, Houston, Texas
The US establishment's murky plan to transition the US peacefully to paternalistic corporatist authoritarian socialism, most recently with Barack Obama as usher and mascot, has failed.
The incumbent political and governmental establishment believes that free speech and association on the Internet (and sound voting institutions) are an immediate challenge to their project. Thus they have now launched a concerted offensive to undermine those freedoms, in treasonous opposition to the US constitution. This offensive will also fail, but will nonetheless be highly destructive (economically and socially) if the incoming Republican Congress is not vigilant, relentless, and uncompromising in blocking the initiatives of the villains until they are utterly spent and scattered far from the seats of economic and social power and responsibility. If there is to be continuity of government, the Supreme Court must also be ruthlessly constitutionalist when related appeals reach them.
On 2010-Sep-21, I (Daniel Pouzzner, the AMPP Editor) posted this message here:
The AMPP collection of historical newspaper clippings is currently offline pending the final judicial resolution of various lawsuits filed against the operators of many other Web sites by Steven Gibson d/b/a Righthaven LLC, 10645 Sunblower Avenue, Las Vegas, Nevada 89135; +1 702-499-4966.
This voluntary and unilateral suspension of fair use republication is not an abandonment of any of the rights and defenses contained within the fair use principle. We simply await formal clarification of exactly what conduct is protected within the fair use principle. In any case, we the operators of the AMPP web site, as such, are not, to our knowledge, currently the target of any lawsuit or the subject of any legal proceeding.
We regret the inconvenience to our readers.
The latest news on the Righthaven tort campaign, provided by Google News
As Fintan Dunne reports, Gibson may have a substantive professional connection to Barack and Michelle Obama, because he worked as an intellectual property lawyer at Sidley Austin, the Chicago law firm where the Obamas first met. He worked there at roughly the same time as Michelle, who also worked there as an intellectual property lawyer.
Steve Gibson's assault on blogs and other informal chat venues on the Internet got underway about the same time the “Internet kill switch” initiative (S3480 in the US Senate, introduced by Joe Lieberman I-CT) broke cover. In a 2010-Jul-9 article for AOL News (“Opinion: 3 Reasons to Kill the Internet Kill Switch Idea”), BT Counterpane founder and CTO Bruce Schneier explained:
[...] For years we've been bombarded with scare stories about terrorists wanting to shut the Internet down. They're mostly fairy tales, but they're scary precisely because the Internet is so critical to so many things.
Why would we want to terrorize our own population by doing exactly what we don't want anyone else to do? And a national emergency is precisely the worst time to do it.
[...] Here in the U.S., it is both wrong and dangerous to give the president the power and ability to commit Internet suicide and terrorize Americans in this way. [...]
On 2010-Sep-27, the New York Times reported that the US intelligence establishment is lobbying for federal criminalization of all private communications. In an article titled U.S. Tries to Make It Easier to Wiretap the Internet (originally titled “U.S. Is Working to Ease Wiretaps on the Internet”, presumably changed when the NYT editors realized their original title suggested sympathy with the execrable position of the Obama Administration), Charlie Savage explained:
[...] officials are coalescing around several of the proposal's likely requirements:
¶ Communications services that encrypt messages must have a way to unscramble them.
¶ Foreign-based providers that do business inside the United States must install a domestic office capable of performing intercepts.
¶ Developers of software that enables peer-to-peer communication must redesign their service to allow interception. [...]
In a Wired article on the initiative (FBI Drive for Encryption Backdoors is Déjà vu for Security Experts), also on 2010-Sep-27, Ryan Singel writes:
[...] According to the proposal, any company doing business in the States could not create an encrypted communication system without having a way for the government to order the company to decrypt it, and those who currently do offer that service would have to re-tool it. It's the equivalent of outlawing whispering in real life.
Cryptographers have long argued that backdoors aren't a feature — they are just a security hole that will inevitably be abused by hackers or adversarial governments.
The proposal also contradicts a congressionally-ordered 1996 National Research Council report that found that requiring backdoors was not a sensible policy for the government.
“While the use of encryption technologies is not a panacea for all information security problems, we believe that adoption of our recommendations would lead to enhanced protection and privacy for individuals and businesses in many areas, ranging from cellular and other wireless phone conversations to electronic transmission of sensitive business or financial documents,” said committee chair Kenneth W. Dam, professor of American and foreign law at the University of Chicago. “It is true that the spread of encryption technologies will add to the burden of those in government who are charged with carrying out certain law enforcement and intelligence activities. But the many benefits to society of widespread commercial and private use of cryptography outweigh the disadvantages.”
Moreover, cases of encryption tripping up law enforcement are extremely rare, according the government's own records. In 2009, for instance, the government got court approval for 2,376 wiretaps and encountered encryption only once — and was able to get the contents of the communication. Statistics for other years show no problems whatsoever for the government.
Jim Dempsey, the West Coast director of the Center for Democracy and Technology, told Wired.com that the FBI is now saying that the numbers are mistaken — and they'll issue new ones in the spring. [...]
Writing on the proposal for CNN, Bruce Schneier comments (“Web snooping is a dangerous move”, 2010-Sep-29):
The most serious known misuse of a telecommunications surveillance infrastructure took place in Greece. Between June 2004 and March 2005, someone wiretapped more than 100 cell phones belonging to members of the Greek government -- the prime minister and the ministers of defense, foreign affairs and justice -- and other prominent people. Ericsson built this wiretapping capability into Vodafone's products, but enabled it only for governments that requested it. Greece wasn't one of those governments, but some still unknown party -- a rival political group? organized crime? -- figured out how to surreptitiously turn the feature on. [...]
We should be embarrassed to export eavesdropping capabilities. Secure, surveillance-free systems protect the lives of people in totalitarian countries around the world. They allow people to exchange ideas even when the government wants to limit free exchange. They power citizen journalism, political movements and social change. For example, Twitter's anonymity saved the lives of Iranian dissidents -- anonymity that many governments want to eliminate. [...]
It's bad civic hygiene to build technologies that could someday be used to facilitate a police state. No matter what the eavesdroppers say, these systems cost too much and put us all at greater risk.
The “Combating Online Infringement and Counterfeits Act” is a Senate bill (S3804) introduced by Patrick Leahy D-VT, and cosponsored by Orrin Hatch R-UT and several Democratic senators, that mandates a per-domain kill switch, putatively to facilitate enforcement of copyrights. Writing for PC Magazine (“New Bill Would Require U.S. ISPs to Block Pirate Sites”), Mark Hachman explains:
The bill - which would need to survive a full vote in the Senate, the House, and be signed into law by President Obama - would authorize the Department of Justice to file an in rem civil action against a domain name, and seek a preliminary order from the court that the domain name is being used to traffic infringing material. (The term in rem refers to a suit against a thing - in this case, a domain - rather than a specific individual or individuals.)
In the EFF's 2010-Sep-21 position piece on the bill (“Censorship of the Internet Takes Center Stage in "Online Infringement" Bill”), Richard Esguerra warns:
This is a censorship bill that runs roughshod over freedom of speech on the Internet. Free speech is vitally important to democracy, which is why the government is restricted from suppressing speech except in very specific, narrowly-tailored situations. But this bill is the polar opposite of narrow — not only in the broad way that it tries to define a site "dedicated to infringing activities," but also in the solution that it tries to impose — a block on a whole domain, and not just the infringing part of the site.
It is designed to undermine basic Internet infrastructure. When a user enters "eff.org" into their web browser, what responds is a domain name system server that tells the users' browser where EFF's website is located on the Internet. This bill would have the Attorney General prevent the players in that domain name system (possibly including your ISP) from telling you the truth about a website's location.
COICA sends the world the message that the United States approves of unilateral Internet censorship. Which governments deny their citizens access to parts of the Internet? For now, it is mostly totalitarian, profoundly anti-democratic regimes that keep their citizens from seeing the whole Internet. With this bill, the United States risks telling countries throughout the world, "Unilateral censorship of websites that the government doesn't like is okay — and this is how you do it."
The bill's imbalances threaten to complicate existing laws and policies. The bill includes poorly drafted definitions that threaten fair use online, endanger innovative backup services, and raises questions about how these new obligations on Internet intermediaries are intended to fit with existing US secondary liability rules and the DMCA copyright safe harbor regime. Moreover, it seems easy to get on the blacklist — the bill sets up a seemingly streamlined procedure for adding domains (including a McCarthy-like procedure of public snitching) — but in contrast, it seems difficult to get off the list, with a cumbersome process to have a blacklisted domain removed.
COICA has now (writing 2011-May-10) evolved into the "PROTECT IP Act", which is even more outrageous:
A source in Washington provided Ars with a detailed summary of the PROTECT IP Act, which takes its acronym from "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property." This beats the old acronym, COICA; who can be against protection? The actual legislation should be introduced shortly.
The bill is an attempt to deal with foreign sites which can be difficult for US enforcement to reach, even when those sites explicitly target US citizens.
The PROTECT IP Act makes a few major changes to last year's COICA legislation. First, it does provide a more limited definition of sites “dedicated to infringing activities.” The previous definition was criticized as being unworkably vague, and it could have put many legitimate sites at risk.
But what the PROTECT IP Act gives with one hand, it takes away with the other. While the definition of targeted sites is tighter, the remedies against such sites get broader. COICA would have forced credit card companies like MasterCard and Visa to stop doing business with targeted sites, and it would have prevented ad networks from working with such sites. It also suggested a system of DNS blocking to make site nominally more difficult to access.
The PROTECT IP Act adds one more entity to this list: search engines. Last week, when the Department of Homeland Security leaned on Mozilla to remove a Firefox add-on making it simple to bypass domain name seizures, we wondered at the request. After all, the add-on only made it easier to do a simple Google search, and we wondered "what the next logical step in this progression will be: requiring search engines to stop returning results for seized domain names?"
This is all heading in one unmistakable direction — the complete repudiation of the incumbent political and governmental establishment. Plainly this establishment has shown itself to be replete with incompetents, cowards, thieves, frauds, and traitors to the US Constitution and to the rightful interests of the US government and the American nation. By their incompetence, thievery, and lies, they have provoked the citizenry to electoral rebellion. By their cowardice and their loathing of American greatness they have dishonored, baffled, and finally, disgusted and alienated a great nation. By their treason, they have forfeited their lawful authority. They can leave quietly or they can leave noisily, but we the citizenry will not yield and will not retreat. On the contrary, our adversary, the renegade gangster bureaucracy, is beginning to panic and retreat as it slides inexorably toward the cliff's edge. In the end we will push them off. Soon, America will again bloom with production, innovation, adventure, and pride. We are still here. The adversary has failed and we will drive our victory home.