Hi there! Been a while, hope this account still works and State Secrets or something has not overcome due process on this here blog.
So, here we are in the waning days of summer. I would have written more about the Formula One Circus but, frankly, it has mostly bored the heck out of me this year. The, still, best driver in F1 is stuck in a crappy underperforming McLaren and has to drive his ass off and hope for attrition to even score a point. That would be Fernando Alonso if you haven’t guessed. While lesser drivers, with far better machinery, you know, those like the two insolent crybabies at Mercedes, have such superior equipment that they wrongfully think they are kings. It is all enough to make an old school fan like me puke. Well, enough about the circus, let’s get to the real meat and potatoes of this blog’s sports coverage, the NFL.
As you may have heard, there is a little kerfuffle called #Deflategate that has been going on since before the last SuperBowl. On one side, we have an arrogant all powerful giant human jackass (no, not Dick Cheney this time) named Roger Goodell, and on the other, we have the epitome of bright and light, the All American Hero, and lover of supermodels, Tom Brady. If you think this is not a fair fight, and Brady is the clear winner, advance and collect your winnings.
Okay, back to Chris Mortensen’s apparently shriveled journalistic balls. Let me be clear, this is just opinion (even if putatively well founded opinion), but what kind of “balls” does a man who is spoon fed lying ass bullshit by “NFL Sources” in the form of a tweet that said:
The NFL found 11 of the Patriots’ 12 game balls for Sunday’s 45-7 AFC Championship Game win over the Indianapolis Colts were under-inflated by two pounds per square inch each, league sources told ESPN’s Chris Mortensen on Tuesday.
Obviously, as the actual testing (not to mention the late great “Wells’ Report) confirmed, that was an outright giant flaming LIE. Call it what it is, it was not a minor discrepancy, it was an outright flaming lie. A lie that led directly to the public outcry that begat what we now know as the multi-million dollar boondoggle bullshit “#Deflategate”.
Peter King (no, not the militant chickenhawk moron from Long Island, the other one from Sports Illustrated) was fed the same blatant inflammatory lie by what appear to be NFL officials, but King had the balls, and intellectual integrity, to apologize.
Did Chris Mortensen or THE WORLDWIDE LEADER, ESPN, have the intellectual and moral integrity to apologize? No, of course the craven bastards did not. In fact, Mortensen silently deleted his original tweet. What a gutless and tiny balled coward. And ESPN has proved itself to be an oppressive behemoth that is willing to put itself, and its allegiance to the NFL, above their journalistic ethics. How pathetic.
That blatantly false report germinated the entire waste of time that is now #Deflategate. Seriously, without Mortensen’s and ESPN’s relentlessly trumped up and featured false report, tagged on by King and SI, there would simply never have been #Deflategate. But it was clearly something the NFL wanted pushed, and they got their want, one way or another. Oh, by the way, is there further evidence that ESPN and Chris Mortensen may be dishonest news sources without a shred of credibility? Yes, yes there is. Mortensen reported that the Kraft family and Patriots had apologized to him. Was that true? No, according to the Krafts on behalf of the Patriots, that was blatantly false.
Here is the thing: #Deflategate is a house of cards built on a pile of dung. If you have an iota of concern for fundamental fairness and due process, you ought be offended – even if this is only a civil labor law mess involving millionaires against billionaires. It all matters, and the labor law principles in play here are beyond critical to all union workers and collective bargaining agreements, not just those of rich athletes. So, yeah, don’t kid yourself, this matters. A lot. If Tom Freaking Brady cannot get fundamental fairness and due process on a collectively bargained agreement, how the hell do you think a UAW, Teamster, teacher, or any other union member will? If you haven’t noticed, labor in this country is under direct attack. Don’t be the guy (or girl!) that aids that attack just because this iteration of the conflict involves Tom Brady and/or rich athletes. This matters, both in general as to all workers under labor agreements, and to your hometown sports teams and players too.
So, there you have Chris Mortensen and his tiny disingenuous balls, but what about some overall facts and law on #Deflategate? Got you kind of covered. And this is especially timely since the last big actual live court day is coming up on Monday, August 31st. So, here we go with some various background resources for you. If you are interested, please read them, you will be better informed. If not, that is cool too, but understand there are very good reasons I take the stances I have on #Deflategate. Off we go!
Soooo….where to start? How about a prediction, you want a prediction?? Sorry, don’t have one. BUT, I will say this, I have read most of the transcripts and filings, and I do not subscribe to the thought that Judge Richard Berman’s clearly antagonistic position to the NFL/Goodell side is all posturing trying to force a settlement. Is there some of that going on? Trust me, almost certainly. By the same token, by my experience, and I have a little, there is simply no way Berman is being as consistently pointed and dubious of one side, the NFL/Goodell, as he has been without being convinced their argument is lame. Yes, judges often play “devil’s advocate”, but what Berman has engaged in strikes me as well beyond that.
So, while I won’t make a prediction, the Brady/NFLPA side must feel pretty positive about how it has gone so far. I am understating that a little.
So, on what grounds do I think Brady and the NFLPA may win on? Two grounds – 1) Notice and 2) Process denial regarding evidence and witnesses by the NFL, to wit, Jeff Pash and related evidence.
Then there is the “Pash preclusion”. Jeff Pash is the General Counsel to the NFL. He is also its Executive Vice President. Those are not necessarily copascetic if a corporate entity wants to maintain even the reduced semblance of “attorney/client privilege” of having a “corporate counsel”. Seriously, this kind of privilege comes close to vapor when you commingle your attorney with corporate leadership. But that is exactly what the NFL has done here, and much more. And that is peanuts compared to the fact that the NFL made Pash the effective, really de facto, co-independent “investigator” (they even stated it in a press release) along with Ted Wells and then gave Pash editorial control over the so called “Independent Wells Report”. then Goodell refused to make Pash available for testimony, stating that he was irrelevant and privileged.
Ooops, did the arrogant Goodell and the NFL bugger their own ruse beyond belief as to Pash? Yes, and it is crystal clear. Even Judge Berman was incredulous.
Yes, arbitration decisions are given “great deference” by courts, and generally are not disturbed. But they can be when they present genuine issues of fairness and partiality. #Deflategate may be a silly case to most of the lay public, but these are serious and critical issues in labor law, and if the exacerbated issues in the Brady case cannot be addressed by a court, then pretty much no labor arbitration can ever be. For a far more detailed explication of the Pash problem, see this outstanding piece by Ian Gunn.
I invent the wheel only when I need to (and mostly when clients pay me to); I try to not do so when it has already been done by worthy people before me. Dan Werly, Dan Wallach, Michael McCann, Brian Holland, Alan Milstein, Raffi Melkonian and Ian Gunn are folks that did the hard lifting while I was, mostly, away frolicking at the beach in La Jolla when the most critical filings came out. All fantastic people that I came to know because of Roger Goodell’s #Deflategate folly. Hat’s off to them, as well as Stephanie Stradley with some fantastic early scene setting. These are all serious people that you should follow, not just for #Deflategate, but for any sports related law and thought. I think all, including me, feel Brady and the Players Association have the far better hand, in both posture and presentation, than Goodell and the NFL. Really, it is not even close, though there is no telling what Berman will do in the end. By this time next week, we will know.
Welp, I may have focused on #Deflategate more than I intended. Or not. This post was meant as an acerbic discussion point, not a full on explication, which would have consumed thousands of additional words. F1, and sports in general have just been boring lately, as you can tell by how often I have bothered to write about them. But the legal machinations in #Deflategate have been fascinating, at least to me. The All American boy Brady, the Boris Badanov evil Goodell, the flamboyant crusading Player’s Association lawyer Jeffrey Kessler, the Snidely Whiplash Ted Wells to the calm but annoyed judge Richard Berman. The characters are all there.
So, that’s it. Rock on lug nuts. Trash talk like you are Michael Jordan. Do it up. But, if you don’t agree with my #Deflategate thoughts, you can send some Dead Flowers. By the US Mail. And don’t forget the roses…
There are multiple better voices here to address the apparent demise of Firedoglake, whether briefly or at length. I was, in a way, an interloper by chance. By fortune, actually. Because I was asked, for inexplicable reasons I will never fully understand, but will always treasure, to join Emptywheel when it morphed from The Last Hurrah into the Emptywheel blog at Firedoglake. Yes, I had been a decent contributor to both Next Hurrah, and, often, FDL, but still it was a bit of a shock when it came.
I can honestly say I, as a result, encountered some of the finest and most genuine people in my life. That happened because of FDL, both as to the lifetime friendships with people that are here with us, including, most notably, Marcy, and all the others. Marcy, Rayne, Jim White, Ed Walker, Rosalind….and, please, let us not forget Mary and some of the others no longer here. All that came, at least for me, out of seeing Scooter Libby coverage early on nearly a decade ago. At FDL.
This medium may be digital, but it has wings and real life beyond the URL’s and binary code or whatever. The people I have met and interacted with as a result of being around FDL were, with little exception, remarkable, intelligent, wonderful and I think the world has been made better by them.
So, to Jane Hamsher, Christy Hardin Smith, Siun, Pachacutec, Richard Taylor, Karl, Suzanne, Bev Wright (Bev and Book Salon was one of the most awesome things ever), Ellie, each and every one of the fantastic moderators who were the ones who kept the enterprise really alive for so long, and a host of others that allowed me to participate with them, thank you. There are too many to list, and I love one and all. You will all be missed, and I apologize to the too many other friends I met there and have not listed. You know who you are, and thank you.
I am starting to see eulogies all over the web, and most are quite decent. FDL was right, and early so, about the rule of law, the Cheney Administration, torture, surveillance, marriage equality and ACA/Obamacare, just to name a few of the plethora of topics breached on her pages. The voices have not died, but, now, the common enterprise has.
I will leave it to others to say where exactly FDL fits into the hierarchy and history of the blogosphere, but it was certainly up there. Thanks, and vaya con dios FDL.
Update, from emptywheel: bmaz forgot to mention DDay, but I’m certain it was an oversight.
The BREAKING NEWS tonight is nine people being shot to death in Charleston South Carolina. From ABC News:
Nine people were killed when a gunman opened fire in a historic Charleston, South Carolina church Wednesday evening and police were searching for the suspect.
Police said that eight people were found dead inside the church. Two other people were rushed to the hospital and one died.
“We’re still gathering information so it’s not the time yet for details,” Mayor Joe Riley told local newspaper The Post and Courier. “I will say that this is an unspeakable and heartbreaking tragedy in this most historic church, an evil and hateful person took the lives of citizens who had come to worship and pray together.”
CNN further reported that the knee jerk mayor of Charleston told reporters that it is all obviously a “hate crime” because people in a church were shot.
Is this, yet another, mass murder with all too easy to bring to bear and fire guns in the US tragic? Yes, obviously. Tragic is being too kind and semantically vague. It is horrid.
But, please, it is NOT worse because the victims were church goers, as their lives are not worth more than agnostics, atheists or other humans. Black children are worth no less than white suburbians. One faith is worth no more than the next or none at all. Just stop with that blithering idiocy.
Human life is precious, and we are all entitled to live. You are not privileged more than me, no matter how pious you may be, or pretend to be.
So, grieve mightily the gross and unnecessary loss of life in Charleston South Carolina tonight. But those lives are worth nothing more than Eric Garner, Walter Scott, Michael Brown or other human senselessly slain in the ridiculous gun fetish culture of the United States. And, no, Mr. Mayor, the locus of the shooting in a church does not de facto make it a “hate crime”. Stop with that bogus over claim too. Hyperbole is the antithesis of informed viewpoints.
So, I heard on the radios today that the “sharps”, “insiders” and other “experts” were calling this weekend a “guillotine” because there were so many make or break games in both college and pros. Seasons on the chopping block and whatnot. I was doing about 85 with the sunroof open and did not quite catch who it was blathering this bunk, but it struck my fancy. What the hell, make it so, this is hereby now “Guillotine Week!” Hard to think about guillotines without good old Madame Defarge sitting there knitting. Knitting. Endlessly knitting. So, thus the title theme of Defarge and guillotines. Nothing but the most wholesome fare for our readers!
Okay, so we lead off this week with probably the most compelling game of the year, the Michigan Wolverweenies at the Northwestern Fighting Journalists. Hahahaha, just kidding. Nope, the game of the week is right here at Sun Devil Stadium where Notre Dame will be taking on the ASU Sun Devils. I will be rooting for the home team of course, but they have their work cut out for them. For starters, while ASU has had a decent team over the years, every time they have been on a big stage with real glory there for the taking, they get killed. Take last year’s Pac-12 Championship game against Stanford for instance. It is just a fact, the Devils don’t show up when the lights are the brightest.
So, will the pattern of big game disappointment hold again this afternoon? Both teams are 7-1, and they are ranked 9 and 10 in the polls currently. ASU’s loss was a blowout to UCLA, the Irish loss was a nail biter to Florida State. The Irish are two and a half point favorites. ASU’s defense is good, but will be missing their best defensive tackle, Jaxon Hood. They also have an annoying tendency of giving up big plays, and Everett Golson is one hell of a QB, both on the ground and in the air. The 2.5 spread on this game feels too small. Taylor Kelly, the Devils starting QB has just not been that good in the two games coming back from a month off with a foot injury. Honestly, Mike Bercovici, who filled in when Kelly was out, is a lot better passing quarterback, and ASU needs that vertical ability. Sad to say, but I think ASU is in for yet another big stage failure.
The other top shelf guillotine game in the college ranks is Ohio State at Michigan State. This game, like ASU and Notre Dame is a knockout round for consideration for the big playoff picture. A one loss B1G conference champ will likely get one of the four playoff bids, and one of these teams is going to be out of the race after this game. The Spartans just feel like a superior team to the Sweatervests, and are at home, so they look good here. The third chopping block matchup is Kansas State at the TCU Horned Frogs. Both teams have only one loss and they are ranked 6 and 7 in the country respectively. TCU really rolls up big scores, but they seem flaky for some reason. I am taking Kansas State in an upset. In other news, SEC studs ‘Ole Miss is playing some powerhouse known as the Presbyterian Blue Hose. Seriously, the Blue Hose?
In the pros, the Browns already laid an ass whuppin on the favored Bengals in Cinci. And the solid play of Brian Hoyer has started rumors that Cleveland will trade Johnny Football, maybe to the Cowboys (and we know Jerry Jones still pines for him). The first guillotine game is the 49ers at Saints. Both teams are 4-4. A loss hurts San Fran more than New Orleans because going to 4-5 would put the Niners in a huge hole in the NFC West, where the Saints would still be in competition in the woeful NFC South. I think the Saints roll at home i the dome. The Fish at the Lions has an air of importance about it too. Miami is quietly on a roll with their offense starting to be as solid as their defense. Detroit is at 6-2 and near the top of the NFC, but they are desperate to keep their lead on Green Bay, who is home at Lambeau against the Bears. The Chiefs at Bills is another game that seems to be a turning point for both teams. I think the Chiefs pull off the road win.
Also on tap is the Brazilian Grand Prix at Interlagos. Hamilton seems to have locked up the drivers crown, although Rosberg is still within range. Hard to see Nico pulling it off though, he just can’t get his early season momentum back. In other news, the arbitration hearing on Ray Rice was held over the course of two full days on Wednesday and Thursday. There is a gag order, ad therefore little hard information, but it does seem that Ozzie Newsome backed up Rice regarding Rice having been honest and fully disclosing to Goodell. Goodell was crossed by Jeff Kessler, who is very good, for over two hours. That must have been interesting.
Okay, there you have it. Music this week by the late great Warren Zevon.
So, the New York Times today has up another in their series called “Room For Debate”. Today’s topic is “catcalling”, and the supposedly relevant question for debate is “Do We Need a Law Against Catcalling?” The ‘debate” is based on the “catcalling video” that has gone somewhat viral the last couple of days. First off, let us stipulate that catcalling is disgusting and reprehensible, and there seems to thankfully be a bipartisan consensus on that. But does the New York Times make it a fair debate when it comes to criminalization of public speech? No, of course not, there are three contributors who specialize in seeking to restrict clear First Amendment speech on this subject against one token policy guy from the ACLU who gives the “whoa, hold on there” position. Hardly a “fair and balanced” fight, but the framing itself makes it crystal clear the Times did not want a fair fight.
Frankly, the fact that the NYT was determined to push the knee jerk attack on free speech side was patently obvious from the fact of their title “Do we Need a Law Against Catcalling” and that is exactly what they put up. Which, considering that the New York Times has led the pantheon of First Amendment law for decades, is a rather astounding and depressing thing. I guess the Times’ love and protection of the First Amendment tails off quickly when their own rear ends and press rights are not on the chopping block. A disturbing position.
This is but the latest example of a growing victim culture trend that is willing to abandon the founding Constitutional principles, and shift inherent burdens of proof, out of emotional angst. There is the attempt to criminalize speech in via so called “revenge porn” laws. There is the astoundingly intellectually backward desire of Ezra Klein to eliminate due process and shift the burden of proof onto the accused – presumed guilt – in state government sponsored punitive proceedings in state universities. And now this.
These are all feel good laws fighting against things that are detestable – revenge porn, non-consensual sex and flat out rape on college campuses, and verbal harassment of women on city streets and in public places. Those are all terrible things that we should all be firmly against, and I am. But just because there are terrible things out there in our world does not mean there is always an appropriate path to eradicate it through ever more broad and vague criminal laws. That is a path our founders took great care to protect against, and one we would do well to keep in mind when emotions try to overcome Constitutional protections.
So, in conclusion, no, we most certainly do NOT need a law against catcalling. Furthermore, in the true spirit of Halloween, I boo and hiss in the general direction of the hypocritical New York Times, who apparently view the First Amendment as protecting them, but not the rest of us non-journalist common citizens.
[Note: It is my belief that this will be one of multiple entries from a group of friends who are either practicing criminal defense attorneys, or heavily involved in the criminal justice system. Our own “More Room For Debate” if you will, because the Times will never seek out actual practicing criminal defense lawyers when talking about, you know, criminal laws. Those in for the debate, or hopefully contemplating it, are: Scott Greenfield from Simple Justice, Gideon from A Public Defender, and Liliana Segura from The Intercept. All of these people, and their blogs, are simply superb, and you should be reading them. When and if they post their entries at their sites, I will update with links here]
Update 1: And Scott Greenfield has weighed in with his take.
Despite the obvious heat surplus and water shortage issues, Arizona continues to be one of the most growth intensive states, and has pegged much of its future on what can be loosely called “smart sectors” such as information technology, solar, chip making and, indeed, higher education itself as evidenced by the recent Starbucks/Arizona State University partnership.
You would think, given the above factors, and many more, Arizonans would be meticulous and scrupulous about the leaders they elect to shepherd the state’s educational system. But you would be wrong.
The power and control of Arizona’s education system rests in the hands of an elected State Superintendent of Public Instruction. Sadly, it has been a position occupied by common, and morally bankrupt, conservative political hacks of late. From 2003 through 2011, the office, the fifth highest elected office in Arizona, was held by Tom Horne, the current embattled Attorney General of Arizona. Horne was a line construction lawyer who up and got elected Superintendent of Public Instruction. But, hey, how much worse is that than when a podunk lawn mower repairman got elected Maricopa County Sheriff (which was before the office went totally into the sewer with former travel agent Joe Arpaio).
Okay, Horne was awful as Superintendent of Public Instruction (and has disgraced the office of AG even worse since), but once he left, one John Huppenthal was elected to cover the educational interests of Arizona’s children. And since January 2011, Huppenthal has been the one in charge of Arizona’s education.
Who is John Huppenthal? Pretty much an up through the ranks of the bat shit crazy Arizona state legislature right wing political climber. People who lived in Huppenthal’s district in the late 90’s, when he was an Arizona State Senator, can attest that the man compulsively and inexplicably robo-called with all kinds of dogmatic messages, at all hours of the day and night. To the point to where some literally were forced to contact his office and threaten suit if it did not stop on their phone. Huppenthal and his office were stunningly cavalier and arrogant about Huppenthal’s compulsive robo-calling. Yet he took to it again as Superintendent of Public Instruction in an effort to undermine the public schools he was entrusted with protecting and, instead, cravenly support private vouchers taking money away from public schools.
Such is great flavor as to the “measure of the man” that is John Huppenthal, but still mostly ancient history. How has the aggressively dogmatic Huppenthal done as Superintendent of Public Instruction, i.e. Arizona’s top educator? Same old story; same old song and dogmatic nutjob dance. You may remember the controversy over “banned textbooks” by the Tucson Unified School District a little over two years ago from the somewhat hyperbolic and inaccurate “Jeff Biggers Salon expose“. Well, that whole ordeal, contrary to Biggers’ Salon framing, Continue reading
Proving it is never too late to shine your lame duck ass for a new generation of 1% oligarchs, Barack Obama laid open the real constituency of national politicians. And proved certain any inference that such was only the constituency and province of the GOP, Koch Brothers et. al is false.
If this is not stupid and ugly to the common Democratic fanchild, it is hard to imagine what is, or could be. From the New York Times hagiography:
On a crisp morning in late March, an elite group of 100 young philanthropists and heirs to billionaire family fortunes filed into a cozy auditorium at the White House.
Their name tags read like a catalog of the country’s wealthiest and most influential clans: Rockefeller, Pritzker, Marriott. They were there for a discreet, invitation-only summit hosted by the Obama administration to find common ground between the public sector and the so-called next-generation philanthropists, many of whom stand to inherit billions in private wealth.
“Moon shots!” one administration official said, kicking off the day on an inspirational note to embrace the White House as a partner and catalyst for putting their personal idealism into practice.
I guess the Obama White House couldn’t fathom a better phrase for coming in their pants over big money.
If there is a more sick comment on the perverted state of US national politics, it is hard to imagine what it would be.
We are ruled by a bunch of oligarchs, and political handmaidens that kiss the oligarch’s asses and hew their beck and call. If the fact the great once and forever symbol of the common citizen “hope and change”, Barack Obama, is such a distant leader, constantly beholden to not only the future of the moneyed class, but the current too, then there is no reality for the American public.
The well-heeled group seemed receptive. “I think it’s fantastic,” said Patrick Gage, a 19-year-old heir to the multibillion-dollar Carlson hotel and hospitality fortune. “I’ve never seen anything like this before.” Mr. Gage, physically boyish with naturally swooping Bieber bangs, wore a conservative pinstripe suit and a white oxford shirt. His family’s Carlson company, which owns Radisson hotels, Country Inns and Suites, T.G.I. Friday’s and other brands, is an industry leader in enforcing measures to combat trafficking and involuntary prostitution.
Oh my. And holy crap.
The New York Times penned a factual report of this sick instance. Will the New York Times, Washington Post, Wall Street Journal, or any of the other august opinion pages of national press, deign themselves honest enough to write opinion and/or editorial pieces recognizing this political cancer for what it really is?
If you did not view the video, and listen to the lyrics in the video above, do so. Because that is exactly the class of “super citizens” your elected leaders are beholden to. The handful of billionaires count for far more than the actual billions of people on this earth.
Want proof? Look no further than the “liberal”, “socialist”, “Democratic” Obama White House, who just demonstrated the problem in Technicolor.
And, before you chafe, of course it would be even worse with Republicans in charge. But the question is no longer just which party is in control of the levers of power (though it DOES matter for SCOTUS), but where the values of the country really are.
It is almost impossible to fathom the country’s values are with the pimple faced, Bieber banged, teenager scions of billionaires the Obama White House so calmly and cooly glad-hands.
[Seriously, watch the video from the one, the only, fantastic Tubes:
Young and rich
Everything I desire
Light bulbs with shades
in every room
And work is play–believe me
Nothing must come too hard
It comes in the mail
Maybe our leaders should find a more representative, and morally balanced, set of leaders for the future.]
Really, get out if you are a citizen, or an American communication provider, that actually respects American citizen’s rights. These trivialities the American ethos was founded on are “no longer operative” in the minds of the surveillance officers who claim to live to protect us.
Do not even think about trying to protect your private communications with something so anti-American as privacy enabling encryption like Lavabit which only weakly, at best, even deigned to supply.
Any encryption that is capable of protecting an American citizen’s private communication (or even participating in the TOR network) is essentially inherently criminal and cause for potentially being designated a “selector“, if not target, of any number of searches, whether domestically controlled by the one sided ex-parte FISA Court, or hidden under Executive Order 12333, or done under foreign collection status and deemed “incidental”. Lavabit’s Ladar Levinson knows.
Which brings us to where we are today. Let Josh Gerstein set the stage:
A former e-mail provider for National Security Agency leaker Edward Snowden, Lavabit LLC, filed a legal brief Thursday detailing the firm’s offers to provide information about what appear to have been Snowden’s communications as part of a last-ditch offer that prosecutors rejected as inadequate.
The disagreement detailed in a brief filed Thursday with the U.S. Court of Appeals for the Fourth Circuit resulted in Lavabit turning over its encryption keys to the federal government and then shutting down the firm’s secure e-mail service altogether after viewing it as unacceptably tainted by the FBI’s possession of the keys.
I have a different take on the key language from Lavabit’s argument in their appellate brief though, here is mine:
First, the government is bereft of any statutory authority to command the production of Lavabit’s private keys. The Pen Register Statute requires only that a company provide the government with technical assistance in the installation of a pen- trap device; providing encryption keys does not aid in the device’s installation at all, but rather in its use. Moreover, providing private keys is not “unobtrusive,” as the statute requires, and results in interference with Lavabit’s services, which the statute forbids. Nor does the Stored Communications Act authorize the government to seize a company’s private keys. It permits seizure of the contents of an electronic communication (which private keys are not), or information pertaining to a subscriber (which private keys are also, by definition, not). And at any rate it does not authorize the government to impose undue burdens on the innocent target business, which the government’s course of conduct here surely did.
Second, the Fourth Amendment independently prohibited what the government did here. The Fourth Amendment requires a warrant to be founded on probable cause that a search will uncover fruits, instrumentalities, or evidence of a crime. But Lavabit’s private keys are none of those things: they are lawful to possess and use, they were known only to Lavabit and never used by the company to commit a crime, and they do not prove that any crime occurred. In addition, the government’s proposal to examine the correspondence of all of Lavabit’s customers as it searched for information about its target was both beyond the scope of the probable cause it demonstrated and inconsistent with the Fourth Amendment’s particularity requirement, and it completely undermines Lavabit’s lawful business model. General rummaging through all of an innocent business’ communications with all of its customers is at the very core of what the Fourth Amendment prohibits.
The legal niceties of Lavabit’s arguments are thus:
The Pen Register Statute does not come close. An anodyne mandate to provide information needed merely for the “unobtrusive installation” of a device will not do. If there is any doubt, this Court should construe the statute in light of the serious constitutional concerns discussed below, to give effect to the “principle of constitutional avoidance” that requires this Court to avoid constructions of statutes that raise colorable constitutional difficulties. Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 156–57 (4th Cir. 2010).
And, later in the pleading:
By those lights, this is a very easy case. Lavabit’s private keys are not connected with criminal activity in the slightest—the government has never accused Lavabit of being a co-conspirator, for example. The target of the government’s investigation never had access to those private keys. Nor did anyone, in fact, other than Lavabit. Given that Lavabit is not suspected or accused of any crime, it is quite impossible for information known only to Lavabit to be evidence that a crime has occurred. The government will not introduce Lavabit’s private keys in its case against its target, and it will not use Lavabit’s private keys to impeach its target at trial. Lavabit’s private keys are not the fruit of any crime, and no one has ever used them to commit any crime. Under those circumstances, absent any connection between the private keys and a crime, the “conclusion necessary to the issuance of the warrant” was totally absent. Zurcher, 436 U.S., at 557 n.6 (quoting, with approval, Comment, 28 U. Chi. L. Rev. 664, 687 (1961)).
What this boils down to is, essentially, the government thinks the keys to Lavabit’s encryption for their customers belong not just to Lavabit, and their respective customers, but to the United States government itself.
Your private information cannot be private in the face of the United States Government. Not just Edward Snowden, but anybody, and everybody, is theirs if they want it. That is the definition of bullshit.
Hello. Is there anybody in there? Just nod if you can hear me.
I am not sure how well the Trash Talk Machine is greased after such egregious neglect. But, we can only do what we do, and carry on. And those skilz have NOT been forgotten jack. So saddle up cowboys and cowgirls.
You would think being a blogger is an easy, Cheetos filled, lifestyle. Not the case. It is hard work, hard work I tell ya. I have suffered the indignation of Marcy and Jim yammering about wanting “trash this” and “trash that”. Weeeeelllllll that is so much SPAM! So, as I said earlier, it’s not easy, you know. I get no respect!
To make a quick comment on the title of this 2013 football season opening trash, shit is truly fucked up and bullshit. We have Mr. Constitutional Nobel Scholar President agitating to make unilateral bizarrely unnecessary war on Syria….apparently because he screwed up and drew a moronic “red line” in the sand and now has to prove he actually has bolas, in addition to stupidity and hubris. The man who when seeking votes to be elected in 2007-2008 claimed war without Congressional assent was wrong, and whose Vice-Predident called such unsanctioned war bullshittery and an “impeachable offense”, now insists without the UN, without the Brits, and with a coalition of effectively one (one who were previously described as “cheese eating surrender monkeys” not that long ago in American lore). But that is where we are now. Which is why the best name for this clusterfuck is “Operation Ballsack“. Yes, it is all about Obama’s balls, and his desperate need to prove he actually has a primordial pair.
Huh? Oh, wait! This was supposed to be football Trash Talk wasn’t it?!?!
Yikes, better get to that then. Last night was a pretty exciting open to the NCAA 2013 schedule. The ‘Ole Ball Coach Spurrier and the ‘Cocks did not seem all that animated, but still clocked a fairly solid NC Tarheel team. Looked like Vady was gonna take a bite off the ‘Ole Miss Rebels, but Ole Miss tailback Jeff Scott let loose with a 75 yard TD romp with 1:07 left, giving the Rebels a 39-35 last minute win. Good stuff. In other news, Lane Kiffen proves the question of why he has not been fired yet is still very salient by coaching a narrow win for Tommy Trojan over the Rainbows. Mighty Troy barely made it over the Rainbows. Yay. If that is all USC has, even the Sun Devils are going to wax them this year (a game I will be attending by the way). also, from Friday night, let me just say that Sparty has some VERY sticky fingered defenders. Look out B1G.
Well, what else is up I wonder? Hmmmm, appears some fella named “Manziel” was suspended half a game for something. Guess it wasn’t anything bad, cause Dez Bryant got suspended a whole season for eating dinner with Neon Deion Sanders. I sign my name on things a lot too. I get paid to do so. Not sure who would sign thousands of items for zip, nuthin, free. Apparently the crack investigators and accountability specialists at the NCAA found no problem though. And you KNOW how sane they are, cause they banned Penn State from all bowls for four years without having any NCAA violation whatsoever present. Ugh.
Alright. Games. Real ones are being played this weekend. Battle manufactured where it should be. Naturally. By a nerd at ESPN instead of that fake Operation Obama Ballsack baloney.
The game of the weekend looks to be Georgia at Clemson. These are two top ten worthy teams, if not potential national championship contenders. Special players abound everywhere on both teams, including Sammy Watkins the super receiver for the Tigers, and Tajh Boyd his quarterback. For the Bulldogs, Aaron Murray may be the best QB in the conference, and that includes Johnny Football. Awesome game to have so early. Alabama hosting Virginia Tech is another unusual one to start off with. The Tide will roll them, but there could be a struggle. should be a way better game than the Tide expected.
Honorable mentions goes to TCU and LSU in neutral Texas, Boise State/Washington and Cal versus Northwestern. Tell us what you have and why!
The one other thing I want to address is the noggins of the NFL. As you may have heard, there was a settlement this week, and it heavily favored the NFL. The craven plantation owners admitted nothing, gave up no liability findings, and gave up a ridiculously cheap total sum as hard settlement. By the time lawyer’s fees and mandatory testing etc. is deducted, it is criminal how little was gotten for a class of at risk humans. Down the road, if these class members live, they and their representatives will be screaming bloody murder. Here is an outrageously great article laying out the factors, and doing so with the tart and sarcastic truth it deserves
This long Labor Day weekend’s music is from the one, the only, Ms. Linda Ronstadt. I have a real affinity for Linda, and haver seen her numerous times including a couple of very special ones. If there has ever been a better pure female vocal talent, I am not sure I have seen it. Pure, and with a range to die for. The singing voice may be silenced, but Linda is rocking on and fighting for the causes she believes in. And they are, and always have been, great, and the right, ones. Oh, also, in case you didn’t notice, she had a backup band on the first video. Chuck Berry, Keith Richards, Robert Cray and some other chaps. The second is the band she normally toured with (including Waddy Wachtel – but with Mike Botts on drums instead of Russ Kunkel, who I always saw) and, trust me, they were absolutely killer, and very cool people to boot.
That’s it for now. Let Willis, and one and all, rock this joint. We are Livin In The USA. All things considered, it is still pretty fucking grand. Enjoy the holiday weekend my friends.
What I can confirm is that it is unequivocally the single most awesome grouping of words I have seen in a very long time. So I am rolling with it baybee!
And, you know, leave it to the Irish, in this case Michael Higgins, who was not then, but is now, the President of Ireland. And, also, who is, by my marker, a man of and among men. I would quote Mr. Higgins more, but it would not do him justice. Watch the video.
Honestly, sincerely, really unequivocally, whatever the fuck, just listen to Michael Higgins eviscerate the American ethos. It is brutal and real.
Oh, before we go any further, I have a new chapeau. I will, and you can, thank the one and only, ever lovely, Phred for this wondrous occurrence.
Y’all have known I had an affinity for CHEESE since I was a child in elementary school. It was easy then, as there was no NFL team within hundreds of miles, and the one that was there was the Rams, and it was not all that compelling. No, the team of my youth and dreams was Lombardi’s Packers. Fuck Dallas, Green Bay was, and is, the people’s, and America’s, team. Always has been. As the only team actually of the people, it must so be. Don’t pitch that crap about teams that are corporately owned, or owned by narcissistic dicks like Jerry Jones.
Knowing my affinity for the once, always, and future real team of America – the ONLY publicly owned and locally controlled, NFL team, the Green Bay Packers, our friend Phred has blessedly provided me with an official CheeseHead. It arrived a couple of days ago, and is the most awesome thing I have been given in a LONG time.
Back to Michael Higgins, necks and bollocks. Watch the video. Higgins correctly identifies the wankers in life, I love it and ratify his identification. Precisely.
Now, on to the sporting side of life. Well, normally, Marcy or I post up Trash Talk whenever we are so inclined. Sometimes, however, itinerant Roving Reporters, like Mademoiselle Rosalind, get all uppity in our grill and force us to Trash.
Oh my. The ignominy of it all.
So, without further adieu, we shall lead off with sailing. Yes, I know, this is all a bit discomfiting for the normal Trash Talk aficionados. Whatta ya gonna do Mofo? We support our Continue reading