Ladar Levison Explains How The US Legal System Was Stacked Against Lavabit
from the because-secrecy-for-the-government-triumphs-all dept
Last month, after Lavabit lost its appeal, we noted that the court avoided the major constitutional issues, focusing on how the company and its founder Ladar Levison mucked up procedural stuff early on, effectively barring him from raising the more serious constitutional issues on appeal. We pointed out that this was unfortunate on many levels, but also noted that this shows how important it is to get a good lawyer early on, rather than trying to handle things yourself. Levison has now written a more thorough explanation over at the Guardian, in which he seeks to explain why gag orders and other issues made it almost impossible for him to get good legal help, leading to the procedural issues later on:In the first two weeks, I was served legal papers a total of seven times and was in contact with the FBI every other day. (This was the period a prosecutor would later characterize as my "period of silence".) It took a week for me to identify an attorney who could adequately represent me, given the complex technological and legal issues involved – and we were in contact for less than a day when agents served me with a summons ordering me to appear in a Virginia courtroom, over 1,000 miles from my home. Two days later, I was served the first subpoena for the encryption keys.This is, without a doubt, problematic, and shows the kind of massive imbalance that is set up in these situations. The government has the power to force companies to do what it wants, and companies have little ability to push back, especially when they're left scrambling under gag orders and with limited information.
With such short notice, my first attorney was unable to appear alongside me in court. Because the whole case was under seal, I couldn't even admit to anyone who wasn't an attorney that I needed a lawyer, let alone why. In the days before my appearance, I would spend hours repeating the facts of the case to a dozen attorneys, as I sought someone else that was qualified to represent me. I also discovered that as a third party in a federal criminal indictment, I had no right to counsel. After all, only my property was in jeopardy – not my liberty. Finally, I was forced to choose between appearing alone or facing a bench warrant for my arrest.
In Virginia, the government replaced its encryption key subpoena with a search warrant and a new court date. I retained a small, local law firm before I went back to my home state, which was then forced to assemble a legal strategy and file briefs in just a few short days. The court barred them from consulting outside experts about either the statutes or the technology involved in the case. The court didn't even deliver transcripts of my first appearance to my own lawyers for two months, and forced them to proceed without access to the information they needed.
Then, a federal judge entered an order of contempt against me – without even so much as a hearing.
That said, Levison still should shoulder some of the blame. Yes, he had to scramble to find lawyers, but if you're setting up a "private" and "secure" email service, in which you're making certain promises to users that you must know the government won't like, you need to have ready and competent legal help on call from the beginning. In the last year or so, there has been an explosion of new startups and services promising more private and secure messaging. I hope that all of them are reading what happened here and that they all have competent legal representation who understands the underlying issues ready to go now, rather than waiting until the DOJ knocks on their doors. There will still be some issues, depending on the specifics of the request and jurisdiction, but from what Levison is saying, he was starting from scratch at a point when he should have been much more prepared.
Again: if you are offering private or secure services, you need to have a competent and knowledgeable lawyer on call who can pick up your case immediately.
In the end, while the ruling against Lavabit was disappointing, perhaps it's a blessing in disguise. Hopefully, the next time this issue comes up, it comes up with a company that's much more legally prepared to deal with it, and can present a much stronger case.
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Filed Under: doj, email, fbi, ladar levison, privacy
Companies: lavabit
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How do we fix it?
Every other day I've got to "agree" to some type of legally binding contract to buy things, install basic software, or use basic services - and it all changes without any warning or objection I can raise. I have to sign 20 pages of dense legalese contracts to get a job, and to be expected to keep up with it when it changes without notice. I luckily rarely deal with the government, but the situation is the same there. If you don't want to be screwed by someone with their lawyer, you need multiple lawyers skilled in wildly disparate parts of the legal code available to you all the time.
I know there's a lot of lawyers that read Techdirt. I know most of you are both very good at what you do, and very well intentioned. You're just trying to help those of us without years of legal training navigate through a crazy byzantine system you had no part in creating. But there is something fundamentally *broken* about the legal system.
I'm a technical, engineer type person. When I see something that doesn't work well, or work fairly, or work efficiently I want to fix it. Rather than just working in the system with its faults, what can be done to make the legal system better? What can be done to simplify it for normal people so that we don't need a lawyer for every minor interaction we might have with the government, with other companies (or our own), or any random passerby on the street?
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The cure for this is making laws that it doesn't take a lawyer to understand. It also takes the government being transparent to the citizens it represents. This idea that the government should hide everything, despite all the laws and FOI stuff on the books, merely is a means to hide what is uncomfortable to them.
If you want to break this up, the only way is to start holding public officials responsible personally for their actions. As long as the public pays the tab and there are no penalties personally to be paid, nothing will change. There is no incentive to do so.
This will take a massive unrest in the country to create. One so powerful that the politicians are fearful of going against it. I don't see that happening any time soon.
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Re: How do we fix it?
IANAL, but it seems to me that the fundamental concept underlying EULAs was struck down by the Supreme Court, the better part of a century before the first software EULA was ever written: http://en.wikipedia.org/wiki/Bobbs-Merrill_Co._v._Straus
This deals directly with the whole "licensed not sold" scam on copyrighted works, and the court said "no, you can't do that." So I don't see why anyone thinks they can get away with it today.
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I am not sure that even having having a lawyer available would have helped him, because as soon as he found one they moved the goal posts.
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No, this is NOT Levison's fault
Could he have been more prepared? Of course. Should he? It would have been a wise business decision. But he is not in the wrong for missing out on that.
Why? Because simply building a well-engineered product, particularly one that is *more* supportive of personal liberty and privacy, should not require that amount of red tape.
Saying he is at fault for not having a good lawyer on call is tantamount to saying that our liberty and privacy is only as good as the lawyer we can hire; if these rights are not simple enough to invoke without expensive and complex legal help, what good are they to me?
I get that we live in the world we live in; the correct business decision was to be legally prepared. But there is nothing *right* about this situation.
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Re:
I've always been in favor of Jonathan Swift's solution, personally. In Gulliver's Travels, in one of the places our beleaguered protagonist ends up stranded for a while, they have a law that no law shall contain more words than the alphabet has letters.
That seems like a good place to start.
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Re: No, this is NOT Levison's fault
There's ideal and there's realistic.
If you're going to advertise a secure and private system, you have to deal with reality.
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Re: How do we fix it?
And by 'glassing', I mean make the concept so toxic to the élite's livelihoods that it never comes up again.
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Re: Re: No, this is NOT Levison's fault
I will grant that he realistically should have expected the government to engage in dirty tricks. I absolutely disagree with the premise that it is morally right that the government's conduct in this case did not result in both reprimand from the court and professional sanction on the government employees who arranged this travesty.
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Re: Re: No, this is NOT Levison's fault
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Re: Re: No, this is NOT Levison's fault
>>If you're going to advertise a secure and private system,
>>you have to deal with reality.
This is especially true if you live in a country like the US, where the government has declared war on privacy and security.
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Re: How do we fix it?
What do you mean? It's exactly the same as it always has been.
It never really existed.
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Re: Re: Re: No, this is NOT Levison's fault
My point is that we should not be assigning blame on the basis of a broken reality.
Levison didn't deal with reality. The consequence was losing a painful battle.
We should not be justifying the RIGHTNESS of that loss by shrugging our shoulders and say "that's reality, he should have been prepared".
In this case, the reality is wrong, and needs to be fixed.
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Sad
Unless of course, the whole thing was designed to draw attention to to the lengths the Gov will go to squash companies that want to protect our privacy... if that was the goal, mission accomplished... but their was probably an easier way...
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Re: Re:
Let's look for a minute at the Constitution and its amendments. Most of them are short and understandable. Yet there are entire sections in law school libraries filled with volumes of constitutional law.
Lessig is attacking problems in politics with money for transparency. I think he's got a good idea and has a shot of fixing some of the issues with transparency we talk about, and that could lead to a lot of good changes. Can someone find the right spot for a targeted attack for injustice in the legal system?
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Would a lawyer on retainer have helped?
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Re: Re: Re: No, this is NOT Levison's fault
Did I say that? No. So why make a bullshit argument?
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Re: Re: Re: Re: No, this is NOT Levison's fault
Because you may not have meant this, but this is exactly what I understood when I read the article.
For me, it was this line that got me:
"That said, Levison still should shoulder some of the blame."
I interpret saying someone should be blamed as a moral indictment of their behaviour.
Since that's not what you meant, I apologize ... but please be aware of how your "shoulds" come across.
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Re: How do we fix it?
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Re: Re: Re: Re: No, this is NOT Levison's fault
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Re: Re: Re: Re: Re: No, this is NOT Levison's fault
I think this statement is more than clear and I feel the same. Yes he should shoulder SOME of the blame. How can you truly safeguard a client's information if you don't have a contingency plan when there is a legal challenge to acquire it. I am not implying what the government did should be condoned, but business doesn't operate on a moral compass. On the contrary, to truly be prepared in a business setting, you should at least have an idea of what to do when something goes wrong, especially legally. To do anything less could imply the client's information and privacy are not a top priority.
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So only people with money can start such a business
but if you're setting up a "private" and "secure" email service, in which you're making certain promises to users that you must know the government won't like, you need to have ready and competent legal help on call from the beginning.
Then only someone with a whole lot of money has the "right" to start such a business if Mike's position is correct.
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I call BS
This passage alone is enough for me to decide that the government was playing at silly buggers with the entrepreneur.
Prior comments talk about the 'real world'. Well, in the 'real world' appellate courts should have taken one look at the behavior of the lower courts than a) reverse the decision by the lower courts without remanding it for 'further consideration' b) explain to the putative court that by its own action it denied the entrepreneur the benefit of qualified counsel, which should have been a strict no-no, given the criminal nature of the complaint and c) explained in rather pointed terms (preferably involving time behind bars and lost licenses/certification) to the government that they got it horribly wrong.
Instead, the appellate court punted the issue by relying on procedural error by the government (self-evident lie by government officials, not allowing the entrepreneur time to reply properly, among other things) to support a bad decision.
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Re: Re: Re: Re: Re: No, this is NOT Levison's fault
On the other hand, you wildly "extrapolated" Mike's comments to somehow supporting the government abusing the legal system. And that rightly deserves to be called bullshit - no interpretation or extrapolation needed, statement of fact time: your comment was bullshit.
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Re: Re: Re: No, this is NOT Levison's fault
Levinson's pretty smart. He should have been a little better prepared for this situation. Others should certainly take note of this mistake and protect themselves.
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Only my property was in jeopardy...
Being able to pursue a comfortable way of life and to pursue happiness are valuable liberties. Jeopardy to your property is a jeopardy to those liberties.
Providing a medium for private conversations should not be construed as criminal activity requiring a lawyer on hand for fear of government reprisal.
The advice to have a lawyer on hand is probably sound for any business owner, but not having a lawyer on hand should not be cause for additional punishment and certainly not seen as evidence that Mr. Levison should 'shoulder some of the blame'.
The secret nature of these laws and the difficulty in being allowed to seek proper counsel is problematic... and in itself a violation of your liberty (defined as your right) to due process and essentially interferes with the fundamental liberties that allow for self-determination.
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Re: So only people with money can start such a business
I don't see why this is so surprising. The US government has savagely attacked everything related to publicly available encryption for the last 40+ years. if you're going to go into that space, you should know what's coming. Whether it's right is entirely a different question - and that's where my first comment is coming from - how do we get away from what the current reality is and move to a better place.
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Re: Re: Re: Re: Re: Re: No, this is NOT Levison's fault
Do you see what is wrong with this logical, everyone makes a mistake, but no one should ever be OKAY with someone getting screwed over because you think they either deserved it or because they were not prepared for it.
Every time it happens the easier it gets... until they just say... you are accused and sentenced to death. Jury? What Jury? You have been accused, therefore you receive death!
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Re: Sad
Then the only people who have a right to protect rights are ones with money?
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Re: Re: Re: Re: No, this is NOT Levison's fault
You wrote, "...Levison still should shoulder some of the blame."
Followed by "if you're setting up a "private" and "secure" email service, in which you're making certain promises to users that you must know the government won't like, [emphasis here] you need to have ready and competent legal help on call from the beginning".
Followed by "Again: if you are offering private or secure services, you need to have a competent and knowledgeable lawyer on call who can pick up your case immediately".
In that context, in the current zeitgeist of civil liberties seemingly constantly at stake, it appears that you are attempting to strengthen your case that Levison is at fault (else why shoulder the blame; this is blaming the victim).
In the complete context of your story, you sound more sympathetic to privacy advocates and tech developers who create software that is useful for business-to-business communication of proprietary information and other intellectual property, but those emphasized statements could also seem like pro-government propaganda to government watchdog on high alert - whether that was the intention or not.
The eastern philosophy of communication would place the blame of this miscommunication on the reader/listener. The western philosophy places the blame on the writer/speaker.
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Re:
Arr, mate, ye speaks God's Truth! We know that a few NSA folks had a conscience (Wiebe, Binney, Tice) and a few CIA folks had a conscience (John Kiriakou, perhaps others). But there doesn't seem to be a shortage of knaves willing to do foul deeds in deepest darkness, nor a shortage of silver-tongued rogues like John Yoo willin to conjure the most heathen of apologies for them foul deeds!
If most of the FBI is "good people", as we are led to believe by the propagandizers, why don't the "good" cops turn in the "bad" cops? Silence == death, lads! Arrr! Shiver me sides, I'm reachin for me cutlass!
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Re: No, this is NOT Levison's fault
next article: you *really* shouldn't wear that mini-dress, gals, you were asking for it!
as the poster above this said: IF he had lawyered up, they would have found THAT to be 'suspicious', 'admission of guilt', blah blah blah...
no, he was screwed, blued and tattooed, no matter what...
disappointed at mike's admonition: blame the victim? i think not...
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Re: Re: Re: Re: Re: No, this is NOT Levison's fault
That wasn't my interpretation at all. I interpreted it as meaning that he since he failed to act in a way that would make the situation easier to deal with, some of the blame for the situation falls on him. Not a moral blame, a functional one.
Although if I wrote the article, I would have used the word "responsibility" rather than "blame".
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Re: Re: Sad
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Re: Would a lawyer on retainer have helped?
Just keeping a lawyer on retainer in the sense of just cutting a monthly check to them isn't terribly useful. You want their advice every step of the way. This also holds true for all business activities, not just the obviously risky ones.
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Re: So only people with money can start such a business
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One Problem
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Re: One Problem
Also, there are ways around the money problem. Some lawyers (particularly business lawyers) will occasionally pick a startup that excites them and provide legal services as an investment in the business. Instead of paying up front, they get a return from the revenue later. This is really hard the first time, but once you show a track record of successful startups (and you've increased the number of lawyers who know you) it can get a lot easier.
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Re: Re: Re: Re: Re: Re: No, this is NOT Levison's fault
That crossed my mind earlier ... if the word responsibility had been used, I wouldn't have been confused.
This confusion, like so many others, boiled down to semantics for me.
The word "blame" carries a sense of culpability that "responsibility" lacks. I interpreted Mike saying Levison should be blamed as meaning he deserved what he got, which I objected to. Whereas, simply saying he bore some responsibility for the situation wouldn't have implied that he deserved his misfortune; it would merely have explained why things turned out the way they did.
Once Mike made clear that he didn't mean to imply guilt — showing that all he meant was "functional blame", that cleared things up for me.
But I do think more careful word choice would have helped. I clearly wasn't the only one confused here.
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Re: Re: Would a lawyer on retainer have helped?
It does seem a bit strange to consider that a selection criteria for hiring an attorney should include:
Can they provide assistance in case the government comes steamrolling and violating due process in whatever jurisdiction they choose?
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Re: Would a lawyer on retainer have helped?
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FTFY
FTFY
It's beyond understanding that a business of this size did not have some sort of legal council on retainer. They could have, at minimum, made motions for delay explaining that the defendant couldn't be in multiple places at nearly the same time.
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Re: Re: Re: Would a lawyer on retainer have helped?
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Re: Re: Re: Re: Re: Re: Re: No, this is NOT Levison's fault
Jeebers, where do you get this shit from?! Neither Mike or anyone else said anything like that. If you want to have a constructive argument, start by not making up what the other person said. It makes you look like quite an asshole.
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Re: Re: Sad
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Re: Re: Re: Re: No, this is NOT Levison's fault
Absolutely nobody here is doing that. Stop making up nonsense.
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Re: So only people with money can start such a business
Note that there's no indication in the story that lack of money was Levison's problem, only a lack of preparedness for what should've seemed like a possible course of events.
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Re: Re: Re: Re: Re: Re: Re: Re: No, this is NOT Levison's fault
I have some sympathy, in that Mike's wording makes me feel uncomfortable as well - "Levison still should shoulder some of the blame"... because he lacked hindsight? Blame seems like a very harsh word here. He could have managed things much better if he'd been prepared, which may or may not have helped (enough) against the stacked deck he was dealt from, but any *blame* for the stacked deck falls on the shoulders of those stacking the deck, not the guy who wasn't ready for it.
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Re: Re: Re: Re: Re: Re: No, this is NOT Levison's fault
You didn't read it like that, but multiple other people (as GP mentions) including me *did* read it like that. To us, "blame" carries moral judgement in the action being critiqued - in this case, the legal steps that stacked the deck against Levison.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: No, this is NOT Levison's fault
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Re: Re: How do we fix it?
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Judicial "Authority"
An example happened in Texas when an individual defendant was accused of firing too many attorneys and not paying them. The result was imposition of a personal receivership in which all assets were seized (including retirement plans). The claims by the attorneys that they were not paid was never resolved and remains pending. Meanwhile the receiver burned through the man's assets reportedly charging over $5 million in legal fees. See:http://www.thedomains.com/2012/12/24/appeals-court-overturns-bankruptcy-sale-of-baronondova-doma ins-axes-the-receivership/
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Re: Re: Re: Re: Re: Re: Re: No, this is NOT Levison's fault
Because I think that (or something similar to it) is what I did, and I didn't have the immediate objection to it that many respondents here seem to have had.
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Re: Re: Re:
The published text of the law may be completely clear and understandable, but with so much case law attached that it means something very different, possibly even the opposite of what the law actually says.
Even a lawyer who does nothing but study law would be hard pressed to find every bit of case law on every statute, let alone decipher every nuance -- especially since nothing stops a court from ruling completely differently from all previous case law tomorrow.
Between words having different meanings than those found in the dictionary when used by courts and the way laws are written by lawyers for lawyers (New York is particularly guilty of this) it's effectively impossible for anyone who isn't a lawyer to know if any given action is legal or not.
And yet, ignorance of the law is not an excuse for breaking it. The legal system is very badly broken when the only thing you can understand amidst all the nonsense and gibberish is catch-22 after catch-22.
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Re: Re: No, this is NOT Levison's fault
To be fair: it's not always been as obvious as now that the U.S. is run by an organized crime syndicate that shits on the constitution and has its own secret fake court hierarchy purportedly authorized to rubber-stamp the violation of the first, fourth, and sixth constitutional amendments without oversight, without publicity, without due process and without being bound by the law.
There are still Americans who believe themselves not to be in a fascist totalitarian police state pretending to be in a permanent "state of emergency" allowing it to bypass every law and curtail the freedoms guaranteed by the constitution.
He's been too patriotic. That's indistinguishable from being a gullible fool, sure, but that was not always the case.
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Re: Re: Sad
That's exactly what I'm saying. I didn't make the system, but that is how it works. Getting into the ring unprepared wont change that.
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Re: Re: No, this is NOT Levison's fault
And the reality is that the Constitution means nothing and the only "rights" that the American people have are those that the government is willing to allow them to have. :(
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Re: Judicial "Authority"
That's not entirely true. I keep a highly qualified lawyer on retainer. It costs me a couple hundred bucks a month unless I have actual work for them to do. The lawyer you keep on retainer doesn't have to be the best available, only competent. The important thing is that they can jump into action and can get additional legal help very quickly if needed.
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Re: How do we fix it?
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Re: Re: Re: Re: Re: Re: Re: Re: Re: No, this is NOT Levison's fault
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Re: Re: How do we fix it?
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Re: Re: Re: How do we fix it?
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Re: Re:
has 61 letters.
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Re: Re: Re:
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Re: Re: Re: Re: How do we fix it?
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Re: Re: Re: Re: No, this is NOT Levison's fault
Others should take note.
Others should take note of what they should know?
Note to self: Water is wet.
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Re: Re: Re: Re: Re: No, this is NOT Levison's fault
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Re: Re: How do we fix it?
How about when a group describes itself as being in favour of a given set of principles, it actually carries them out instead of merely paying lip service to them.
I believe in government by the people for the people. We don't have that right now. What we have is government by some politicians and their employees for the big multinational corporations, the MISC (military-industrial-security complex), and some noisy, well-funded special interest groups on both sides of the aisle.
Give us government by and for the people, and the rest will take care of itself.
- a real, moderate conservative.
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Re: Re: Re: Re: Re: Re: Re: No, this is NOT Levison's fault
What we're saying is, if you go outside on a rainy day without a raincoat and umbrella, you're going to get wet. Be prepared. Levison wasn't prepared.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: No, this is NOT Levison's fault
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Re: Re: Re: Re: No, this is NOT Levison's fault
FIFY
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Re: FTFY
=> Secret interpretations, etc. => he couldn't get a competent lawyer when he needed one.
The thing is, trying to keep your customers' data confidential is increasingly seen as breaking the law, or on the edge of breaking the law because if you have nothing to hide you've got nothing to fear, right?
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Re: Re: So only people with money can start such a business
He paid 1/4 of a mil to figure out if what he was doing was 'legal' (and it seems to have been). And the 1st trial he didn't lose. But the 2nd go-round he lost - after spending another 1/4 of a mil for the trials.
This idea that getting your legal ducks in a row 1st is a fallacy.
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Re: Re: So only people with money can start such a business
How about things stop happening that offend?
There are many types of businesses that are subject to government regulation and oversight,
When 3 different attempts to count and list the various federal laws have failed - do take the time to explain how a business is to be complaint when the Government itself can't count its own laws?
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Everyone
Actually, this applies to everyone. You never know when the government may come knocking for whatever reason it desires. When it does, you better have a lawyer on speed dial. That's just the reality of living in America today.
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Re: How do we fix it?
One of the profoundly irritating things I run into every day is the "We have changed your agreement" notice. Now I realize that any company with more than two lawyers to rub together is already smart enough to bake into its agreements/licenses/releases the ability to change an agreement pretty much unilaterally.
But it's fairly routine in some parts of the legal system to send out the revised agreement in 'markup' form, and it would be quite straightforward to require by law that all revisions to agreements be presented in this form. Ordinary ballots sometimes do this in the case of state constitutional amendments.
This would give the consumer/cardholder/employee/voter/unintended victim a fighting chance to keep up with the changes in these agreements.
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Lawyers are not scientists
They don't learn how to make laws that work best.
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Re: How do we fix it?
A corporation has the combined power and money of many people (employees and shareholders) which one or a few people, the executives, can deploy in a coordinated fashion for every transaction. An individual consumer has effectively no power to balance that if they don't like what the corporation is doing. The power to *not* do business with a large corporation is only effective when there is sufficient and strong enough competition, and only when the competition have not all adopted the same objectionable tactics. These conditions rarely hold.
So, how do consumers band together? Their government, at least in theory. The people can say, "we don't think binding mandatory arbitration is fair" and outlaw it. But this doesn't work anymore because business and money have too much influence on politicians and the people have too little.
That's what needs to be fixed. We need to eliminate business's ability to influence politics, or we need to form another political "collective bargaining" entity (like a "consumers' union" or something).
Our system is not fair until power is balanced.
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