Archive for the ‘#ignorance’ Tag

Abuse of Law   1 comment

Did you know it is against federal law to share your Netflix password with a friend? Netflix doesn’t really care so long as you’re not selling the password, but the federal government does. They haven’t prosecuted anyone for it, but … similar to the law that makes it illegal to ride a horse drunk in Fairbanks, Alaska … you could be the test case for it. It doesn’t matter if Netflix has an issue with it.

Related image“Ignorance of the law is no excuse.”

Really? That’s a pretty troubling statement when you’re standing in a country with so many laws that it is impossible to count them all. Forget about reading them and knowing the fine print. When was the last time you even looked at a complete set of federal, state, and local codes setting forth tens of thousands of criminal violation that could send you to jail? There’s a whole room in the State courthouse to house it. It’s enormous and I’m am told by the curator that it is already out of date within days of it being fully stocked with the latest documents.

Very few Americans — not even lawyers — know all the laws and regulations that could send people to jail. Yet, America’s judges don’t let that stop them. They’re perfectly fine with lock people up for doing something they had no idea was illegal.

That’s unfair and flies in the face of the rule of law.  A couple of weeks ago, I was someplace where I could get cell phone reception, but not Internet and I really needed lunch. The problem was I had no money in my checking account and I couldn’t go to my bank in the time allotted for lunch. So, I called my son, who is one of the most honest people in the world and asked him to log into my bank accounts using my password and transfer $30. I told him to destroy the information when he was done with it. Then I ate lunch. The problem is that the Computer Fraud and Abuse Act of 1986 bans intentionally accessing a computer “without authorization,” and the Supreme Court has recently declined to hear a case from the 9th U.S. Circuit Court of Appeals, United States v. Nosal, that held that password sharing could be prohibited by the Act. Although the majority opinion did not explicitly mention innocent password sharing, the dissent noted that the lack of any limiting principle meant that the majority’s reasoning could easily be used to criminalize a host of innocent conduct … including my son acting as my proxy so I could eat lunch.

At sometime in the past, the rationale for the maxim that “ignorance of the law is no excuse” was to give people an incentive to educate themselves about legal requirements. That was fine when there were few laws and they were mostly discoverable by using common sense, but any law student can tell you that to study all the laws in the United States would take years and barely scratch the surface, which is why lawyers specialize in areas of the law rather than in the whole thing.

Another rationale was to prevent people from escaping criminal penalties by claiming ignorance, even when they actually knew they were breaking the law. Again, that might have made sense in ancient times when there were only a few dozen crimes on the books and all of them involved morally blameworthy conduct like murder, arson, or rape. Today, the law has grown so complicated, and the relationship between law and morality so attenuated, that these supporting rationales no longer make sense. There have been multiple attempts to count the number of federal crimes, including by the Department of Justice, and no one has yet succeeded. Title 18 of the US Code, which governs crimes and criminal procedure, has over 6,000 sections, and it is estimated that there are more than 4,500 federal crimes and over 300,000 agency regulations containing criminal penalties. That doesn’t include the dizzying array of state and local criminal codes. Ignorance without excuse is pretty much assured.

The increasing criminalization of morally blameless conduct makes the punishment of innocent mistakes even more likely. For example, federal law makes it illegal to possess the feather of any native migratory bird even if one just picks it up off the ground. The potential penalties for doing so include fines and even time in prison. Think federal prosecutors would exercise their discretion to prevent miscarriages of justice under such obscure laws? Yeah, right!

Former Indianapolis 500 champion Bobby Unser was convicted of illegally driving his snowmobile in a National Forest Wilderness Area in 1996 after he and a friend were stranded in the mountains during a blizzard, and forced to take shelter in a barn while suffering from hypothermia. Reconstructing their meandering path in whiteout conditions, prosecutors concluded they had strayed onto federal land and convicted Unser of the misdemeanor crime of operating a snowmobile in a national wilderness area. While that probably didn’t affect his racing career, if he had a job that was more sensitive to misdemeanors, he might have been unemployed immediately upon his conviction … for taking shelter from a storm in whiteout conditions so as to avoid death.

Even people attempting to perform virtuous acts have been persecuted by overzealous regulators. In 2009, Robert Eldridge, a fisherman from West Chatham, Massachusetts, faced up to a $100,000 fine and a year in prison for interference with a protected marine animal after he freed a humpback whale that had been caught in his fishing gear. He escaped with a comparatively small $500 fine after pleading guilty, but his altruism could have cost him his livelihood and prison time.

Image result for image of ignorance of the law is no excuseMore recently, Alison Capo also faced a year in prison after her daughter rescued a federally protected woodpecker from the family cat. The two were apprehended by a U.S. Fish and Wildlife Officer who overheard them talking about the bird while shopping for a suitable container at a Lowe’s home improvement store (Her initial fine of $535 was ultimately rescinded by the agency, claiming it was a “clerical error.”).

And it gets worse than that because now people are supposed to know the laws in other countries and assure that whatever they purchase online was in compliance with those laws.

Subjecting well-meaning homeowners, desperate snowmobilers, innocent password sharers, and countless other blameless Americans to prosecution for conduct that no reasonable person would know was illegal doesn’t advance the cause of justice. It undermines it. If the government cannot even count all of the criminal laws it has enacted, how on earth can citizens be expected to obey them?

Posted December 21, 2017 by aurorawatcherak in Common sense

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