Barely Legally

Confessions of a Moot Court Bailiff

Horrible Loophole

The Guardian has a story about a creepy, creepy old man who took photos of a child’s underwear by kneeling down and sticking a camera under her skirt. The guy apparently committed no crime in Oregon:

An Oregon judge has ruled that a 61-year-old man did nothing illegal when he crouched in the aisle of a Target store and snapped photos up a 13-year-old’s skirt. It was lewd and appalling, but not outlawed, Washington county judge Eric Butterfield said.

“From a legal point of view, which unfortunately today is my job to enforce, he didn’t do anything wrong,” the judge said on Thursday. Patrick Buono of Portland didn’t dispute using his cellphone to take upskirt photos on 3 January at the store in suburban Beaverton, the Oregonian reported.

But his defense lawyer, Mark Lawrence, argued Buono didn’t violate the laws against invasion of privacy and attempted encouraging child sexual abuse, a child abuse images count.

Well, this is just crazy. I can’t believe that photographing a kid’s underwear under her skirt isn’t actually a crime in Oregon. The article mentions that Buono was charged with two crimes. One of them has to fit, right?

The Child Pornography Charge

In Oregon, they call child pornography “the crime of encouraging child sexual abuse,” and it has three degrees. The third degree of the crime has a number of provisions, but one of them says that whoever:

Knowingly possesses or controls, or knowingly accesses with the intent to view, a visual recording of sexually explicit conduct involving a child for the purpose of arousing or satisfying the sexual desires of the person or another person;

Is guilty of encouraging child sexual abuse in the third degree. There are a lot of elements in that crime, but they’re almost all straightforward. The guy took a photo on purpose, so he “knowingly possessed” it; it’s a photo, so it’s a “visual recording”; 13 years old is definitely a “child”; and we can assume that “sexual desires” were involved in the particular photos.

The only hitch there is “sexually explicit conduct” – it’s not immediately apparent that the child was doing anything like that. However, the definition of sexually explicit conduct in Oregon is:

  1. Sexual intercourse or deviant sexual intercourse;
  2. Genital-genital, oral-genital, anal-genital or oral-anal contact, whether between persons of the same or opposite sex or between humans and animals;
  3. Penetration of the vagina or rectum by any object other than as part of a medical diagnosis or treatment or as part of a personal hygiene practice;
  4. Masturbation;
  5. Sadistic or masochistic abuse; or
  6. Lewd exhibition of sexual or other intimate parts.

I’m not going to bother to look up the case law to figure out how the courts in Oregon have defined each of those terms, because this case is depressing enough already without getting a complete picture of the landscape of exploited children in this particular jurisdiction.

Going with the plain meaning of those terms, none of the first five really apply. That last one, though; it seems like the part of a child covered by a skirt and by underwear would qualify as an “intimate part.” However, the law is specific not just about the area of a body being photographed, but also the “lewd exhibition” of that area. And, uh, the child wasn’t doing anything like that.

Why these crazy stipulations? Well, we’ve all got those embarrassing baby pictures that our parents trot out at the holidays. There’s a photo of my brother, then 2 years old, taking a bath in the kitchen sink, and a photo of me at bath time with a beard made from bubble bath bubbles. We’re both naked, but neither of those photos are child pornography – nor should they be. Everyone’s family has pictures like this. So Oregon’s law tries to draw those boundaries to keep regular old parents from being … sex offenders.

However, this boundary-drawing has accidentally left out Creeper McPervsalot in this case. He’s apparently committed no crime.

Invasion of Privacy

Well, okay. So this guy skates on the child pornography charge. It seems more than a little messed up. The other charge is Invasion of Privacy, which seems like a bit of an understatement. But sure. Let’s give this a shot.

A person commits the crime of invasion of personal privacy if: the person knowingly makes or records a photograph, motion picture, videotape or other visual recording of another person in a state of nudity without the consent of the person being recorded;

Well, the kid wasn’t naked. So there goes that charge. Also, the victim would have had to be in a location and under circumstances where she had a reasonable expectation of personal privacy. In Oregon, they have a list:

Places and circumstances where the person has a reasonable expectation of personal privacy includes, but is not limited to, a bathroom, dressing room, locker room that includes an enclosed area for dressing or showering, tanning booth and any area where a person undresses in an enclosed space that is not open to public view.

A random aisle in Target probably doesn’t count. Geez, Oregon, what’s wrong with your laws? Upskirt photos (of kids or otherwise) ought to be a crime. It’s not hard. Massachusetts has one.

Of course, just because you have a law doesn’t mean you’ll keep that law. In Texas, pervy photos of other peoples’ underwear is protected speech:

The state’s highest criminal court on Wednesday tossed out part of a Texas law banning “improper photography or visual recording” - surreptitious images acquired in public for sexual gratification, often called “up skirting” or “down blousing” - as a violation of federal free-speech rights and an improper restriction on a person’s right to individual thoughts.

Oh, come on.

Published in Nuke Us From Orbit on

To Forgive is Divine

An opinion piece by “The Editors” at Bloomberg View thinks the government is getting ripped off in the student loan game:

It makes sense for the government to encourage young people to go to college, and it’s right to deal compassionately with cases of genuine hardship. But a better deal for taxpayers can be struck.

First, instead of offering affordable income-based repayment as an option, make it automatic, as Republican Senator Marco Rubio of Florida proposed last year. That way, small initial payments from graduates not making much money would be balanced by larger initial payments from graduates making more.

Second, stop forgiving loans after 20 years. For those on low-to-moderate incomes, capping payments in relation to pay is a generous concession in its own right. And the federal government already offers some loan forgiveness to graduates who enter any one of dozens of public-service professions. Adding the promise of forgiveness at a fixed point in time, regardless of the borrower’s financial circumstances, is an incentive to overborrow and a disincentive to early repayment. A system that forgave debt in cases of hardship would be defensible, as would allowing student loans to be discharged in bankruptcy (which amounts to the same thing). Automatic forgiveness has no such rationale.

The Bloomberg View: offering forgiveness at a fixed point in time is an incentive to overborrow and a disincentive to early repayment. The very next sentence: ‘hey, also we could just let student loans be discharged in bankruptcy.’

Are you kidding me? If student loans could be discharged in bankruptcy, I’d go to law school again, borrow the entire $200,000 cost and declare bankruptcy as I moonwalked across the damn stage. There’s an argument to be made for sensible reforms to the student loan regime in this country, but this isn’t it.

Published in Motion to Point and Laugh on

Barkley Shut Up

Former NBA player Charles Barkley doesn’t like analytics:

During TNT’s studio show following the Houston Rockets’ victory over the Phoenix Suns on Tuesday night, Charles Barkley ripped Rockets GM Daryl Morey – and the NBA’s burgeoning advanced stats movement by extension – saying: “I’ve always believed analytics was crap.[…]”

“The NBA is about talent,” Barkley added. “All these guys who run these organizations who talk about analytics, they have one thing in common – they’re a bunch of guys who have never played the game, and they never got the girls in high school, and they just want to get in the game.”

Having an intuitive mastery is one thing. Having a demonstrably empirical basis for decision making is another. They’re not necessarily mutually exclusive.

Fetishizing the intuitive and dismissing the empirical by hashtag humble bragging about how many girls you got in high school is just sad, man. If the statute of limitations on your teenage years hasn’t expired, neither has the statute of limitations on your support of exploitative prostitution.

Published in This Doesn't Add Up on

It Sounds Crazy

Jason Stoddard, co-founder of an audio equipment (think headphones and amplifiers and such) company, wrote an exhaustive accounting of what it’s like to try to run a small business selling physical products. I do desperately hope folks in MBA programs learn about the sorts of hustles that resellers run on suppliers. I’m sure I’d fall prey to stuff like that my first time out.

Stoddard’s piece is centered around what it’s like to deal with Amazon.com as it sells his company’s products. It’s incredibly informative. The part that I found most intriguing was (naturally) about intellectual property disputes on Amazon’s site.

The Amazon Brand Registry. Okay, let’s say you’re selling on Amazon…and one day, you find that you’ve lost the “buy box.” That is, you’re not the first result listed—when someone clicks on “buy,” they’re not buying from you. Worse, your replacement is claiming to sell the exact same product you make…but they are not you. They’re not your brand. Their product might do something similar, but it’s most definitely not you…and you don’t have any authorized distributors.

Impossible? Not at all. It happened to Rina, in her business. Multiple times. […] So, when this happened, she went to Amazon and said, “What the heck? (but spelled with F and U). Amazon eventually replied that she had to get into the brand registry to protect her brand — something they offered to [Stoddard’s company] at the beginning.

One catch: she had to have a registered trademark.

Yes, that’s right: with Amazon, the rules change depending on who you are…and who you are rhymes exactly with “how much you sell.” Well, okay. She went out and got a registered trademark. Her business was already legally sound, as an LLC. She applied for Brand Registry, and got it. Problem over, right?

Wrong. To this day, she has to chase off competitors who glom on to her listings. Big deal, right? She’s the brand owner and registered trademark holder.

Again, wrong. Amazon doesn’t understand—or seem to care—that a manufacturer with a registered trademark and no distributors is the ONLY entity that can list its particular products. It does NOT allow the trademark holder to approve and disapprove resellers of their product.

If you’re thinking to yourself “how has Amazon not been sued into the ground?” you’ve got good company. Well, you’ve got okay company. Well, you’ve got me. Dear Reader, the fact is that if Stoddard is telling Rina’s tale accurately, that’s a huge problem for Amazon. Why’s that?

Published in Legal Theory on

Adventures in Constitutional Law

There’s a great big lawsuit in front of the Supreme Court next month. Actually, they’re all big. The one I’m thinking of is King v. Burwell, and it’s yet another lawsuit over the Constitutionality of Obamacare (née the Affordable Care Act). There’s been a lot of hand-wringing over the law, and litigation over the hand-wringing, and then hand-wringing over the litigation. Boy, isn’t the 21st century great?

In the King lawsuit, the plaintiffs say the government is breaking its own law. Currently, states which didn’t create a web site for their residents to buy health insurance use the federal web site, healthcare.gov. (It turns out squatters got the obamacare.gov – just another example of incompetence in federal IT practices.) The plaintiffs in King argue that the law says people in states using the federal site don’t get subsidized insurance; only people in states that have their own insurance site get discounts.

Put simply, they’re wrong and it’s kind of absurd that anyone takes this claim seriously.

Published in The News on

The Boring Zombies

Among philosophers of the mind, there seems to be no consensus about what precisely consciousness means. What does it mean for a human brain to perceive itself perceiving other things? How do we do it? What about our brain creates this phenomenon? Why does it apparently only happen to us? For decades, scientists have worked to create artificial intelligence – a machine that is aware and that thinks – and we’re not even sure what the “organic” version means. (Also, science has made just about zero progress in the last 50 years, so these philosophers have plenty of time.)

Oliver Burkeman has a great article describing what some call The Hard Problem: “why are we awake?” We talk, we listen, we run, we laugh, etc. We can program machines to do all of these things, and the machine isn’t conscious. Why do we feel something? Why does listening to someone you love call your name make you feel? Why aren’t we just squishy pink robots?

This is The Hard Problem in a nutshell, and philosophers answer it in a typically philosophical way; by dividing into schools:

Not everybody agrees there is a Hard Problem to begin with – making the whole debate kickstarted by [David] Chalmers an exercise in pointlessness. Daniel Dennett, the high-profile atheist and professor at Tufts University outside Boston, argues that consciousness, as we think of it, is an illusion: there just isn’t anything in addition to the spongy stuff of the brain, and that spongy stuff doesn’t actually give rise to something called consciousness. Common sense may tell us there’s a subjective world of inner experience – but then common sense told us that the sun orbits the Earth, and that the world was flat.

Consciousness, according to Dennett’s theory, is like a conjuring trick: the normal functioning of the brain just makes it look as if there is something non-physical going on. To look for a real, substantive thing called consciousness, Dennett argues, is as silly as insisting that characters in novels, such as Sherlock Holmes or Harry Potter, must be made up of a peculiar substance named “fictoplasm”; the idea is absurd and unnecessary, since the characters do not exist to begin with. […]

Meanwhile, in the “no but seriously come on, consciousness is a thing and it’s not just a trick your mind plays on itself – if there’s no consciousness, then who is there to play a trick upon” crowd:

To Dennett’s opponents, he is simply denying the existence of something everyone knows for certain: their inner experience of sights, smells, emotions and the rest. […] It’s like asserting that cancer doesn’t exist, then claiming you’ve cured cancer; more than one critic of Dennett’s most famous book, Consciousness Explained, has joked that its title ought to be Consciousness Explained Away. Dennett’s reply is characteristically breezy: explaining things away, he insists, is exactly what scientists do.

When physicists first concluded that the only difference between gold and silver was the number of subatomic particles in their atoms, he writes, people could have felt cheated, complaining that their special “goldness” and “silveriness” had been explained away. But everybody now accepts that goldness and silveriness are really just differences in atoms. However hard it feels to accept, we should concede that consciousness is just the physical brain, doing what brains do.”

Well, that started as “the other camp,” but then Dennett gets some more shots in, because he’s Dennett and he’s good at that.

The whole article is worth a read. You can program a robot to jerk its hand away from scalding water, just like humans learn to do. We feel fear, or panic, or a rush, or something when we get that close to scalding water. Does the robot feel anything? Is that why its program works? Is that why our program works?

Consider the following, from Burkeman’s article:

…occasionally, science has dropped tantalising hints that this spooky extra ingredient might be real. In the 1970s, at what was then the National Hospital for Nervous Diseases in London, the neurologist Lawrence Weiskrantz encountered a patient, known as “DB”, with a blind spot in his left visual field, caused by brain damage. Weiskrantz showed him patterns of striped lines, positioned so that they fell on his area of blindness, then asked him to say whether the stripes were vertical or horizontal.

Naturally, DB protested that he could see no stripes at all. But Weiskrantz insisted that he guess the answers anyway – and DB got them right almost 90% of the time. Apparently, his brain was perceiving the stripes without his mind being conscious of them. One interpretation is that DB was a semi-zombie, with a brain like any other brain, but partially lacking the magical add-on of consciousness.

Clearly, like DB, we’re not seeing the whole picture here.

Are these emotions and feelings and the general experience of consciousness simply the way an operating system calls functions on a squishy pink robot? One of the world’s leading neuroscientists says that it’s not impossible that his iPhone has feelings. It depends what we mean by feelings, isn’t it?

This stuff is so absolutely fascinating. I wonder if we won’t have a good answer until we just build a brain ourselves and figure out what pieces we left out.

Bonus: once you’ve clicked the two links in the intro paragraph about what it is to be a human brain, and why scientists haven’t made any progress in building one, learn what happens when you short-circuit the brain with weird drugs.

Published in Educated Guesses on