Delaware Law Office
of Larry D. Sullivan, Esquire

A Weblog?
The column to the right, is a news/editorial/comment column. It is a weblog, also know as a blog.

The weblog thing comes from www.blogger.com, which offers us a convenient way to manage the posting, administratively. You don't really need to know all of that, but we have included this explanation so that you won't be confused by the term "blog".

Another important topic here is that since the column includes editorials and comments, you can be sure that we are just exercising our free speech rights as guaranteed by the Constitution and as not yet abridged by a reactionary opportunistic vocal minority.

opinions, everybody's got one...
If you would like your opinion published here, forward it for consideration and editorial review to: info@delawoffice.com.
Or add a comment. Comments by: YACCS

We encourage the exchange of responsible ideas.

Saturday, May 25, 2002

 
buckle up, newark

Driving without a seatbelt in Delaware is against the law. But, when and how the law is enforced will depend upon where you're driving. The Newark City Council has recently made it a "primary" offense. That means that a police officer can write you a ticket for driving without a safety belt, without having stopped you for any other reason.

In the rest of Delaware, the violation is a "secondary" offense. That means that if you are caught without being buckled up, when pulled over for something else, you are subject to prosecution for failure to wear your seat belt.

Legislation is going through the Delaware House and Senate which would make driving without a seatbelt a primary offense throughout the whole State. In addition, a violation would add points to a person's driving record. A House vote passed the bill on March 27, and it was sent to the Senate Judiciary Committee on March 28th.

You might be asking yourself why a seat belt offense was ever a "secondary" offense in the first place. Is there something in the law that might create problems if the law was a "primary" offense? It's possible that there was a reason for the "secondary" offense classification.

Delaware has recently seen a "click it, or ticket" campaign, where police were conducting roadblocks and informing people who weren't wearing seatbelts that they needed to have them buckled. Since the offense was a secondary one, those caught were let go with a verbal warning. Making the offense a primary one changes that. How will the law be enforced? Will we have seatbelt roadblocks on a regular basis? Another option might be spot checks, where a driver is stopped to see if his or her seatbelt is buckled. Might there be a problem with conducting those types of roadblocks or spot checks?

I imagine that seeing whether someone is buckled up from a moving patrol car is difficult thing to do, and might be a safety risk. But, it is a possibility. An safer alternative means would be to stop people to check. There may be a problem with that approach. Using roadblocks and spot checks may raise some constitutional issues, if previous US Supreme Court cases are considered.

In a Delaware case which went before the US Supreme Court, a police officer pulled someone over to check to see if their driver's license and motor vehicle registration were valid, without any reason that he could explain for suspecting that there was a problem. The case was Delaware v. Prouse, and the Court held that:
Except where there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment.
That might be the reason why the "secondary" offense classification was placed upon seatbelt violations.

As part of the analysis that the Court undertook, they mentioned the possibility of conducting roadblocks:
The holding in this case does not preclude Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative.
So, Prouse might allow for carefully conducted roadblocks for traffic safety reasons, to check licenses and registration. Since that part of the ruling was not part of the decision based upon the facts in the case, it is considered dicta - and not necessarily an indication of possible future decisions of the Court.

Unlicensed drivers and unregistered motor vehicles can potentially create some road safety risks. People without licenses may have had them taken away because of previous offenses, or not have a license because they are too young to drive, or may have physical or medical conditions prohibiting them from operating a motor vehicle. A car without registration could have mechanical problems which wouldn't permit it to pass inspection, and may pose a serious risk of harm to others. Reasonable roadblocks as described in Prouse may serve a very useful purpose when it comes to highway safety.

Does driving without a seatbelt create a road safety risk? There are many statistics that show that people are more likely to survive accidents when wearing seatbelts (and wearing a seatbelt is a very good idea). There are no statistics I'm aware of that show that an accident is more likely to happen if a driver isn't wearing a safety belt. An argument could possibly be made either way.

Another Supreme Court case, Indianapolis v. Edmond involved carefully conducted roadblocks used to see if someone was transporting illegal drugs. A secondary part of the stop was to check registrations and licenses. The Court held against the roadblocks:
Because the primary purpose of the Indianapolis narcotics checkpoint program is to uncover evidence of ordinary criminal wrongdoing, the program contravenes the Fourth Amendment.
A number of exceptions were noted in the ruling, including a possible one where the primary purpose of the stop was for highway safety related purposes. So, is driving without a seatbelt more like driving without a license or with an unregistered motor vehicle, which may create risks for other drivers, or is it "ordinary criminal wrongdoing?"


 
california cracked

The computerized personnel files of 265,000 California employees were accessed without authority on April 5th. The database contains names, social security numbers, and payroll information. That's more than a third of the population of tiny Delaware.


Friday, May 24, 2002

 
Can reporting about anti-copyright protection be a violation of the dmca?



"Any sufficiently advanced technology is virtually indistinguishable from magic."

- Arthur C. Clarke

Some of the large music labels started selling CDs that can't be played on computers. The idea, simply, was to keep people from using their CD players and CD burners to make copies of the songs on the disks. The outer tracks of the CDs contained errors that kept them from playing on computers. Normal audio CD players just ignore the errors. Some bright people realized that there was a very simple way around the anti-copyright protection. Reuters reported on the means by which the protection was being circumvented in an article entitled, "'Copy-Proof' CDs Cracked with 99-Cent Marker Pen" They even reported on their own (successful) attempt using the method described.

Might Reuters be prosecuted under the Digital Millennium Copyright Act (DMCA), since their article technically violates the Act by spreading information on how to use technology to get around the record labels' safeguards? NewsForge suggests that it is a possibility:
In yet another example of how the Digital Millennium Copyright Act could trample on the First Amendment, Reuters may have violated the U.S. law by describing in a story this week how Sony's "copy-proof" protection for CDs can be defeated with a magic marker.

Of course, that would mean dozens of publications such as Yahoo.com and CNN.com, which carried the wire service's report, also violated the DMCA, and this very NewsForge article violated the DMCA by linking to the story.

What's this quaint notion about freedom of the press in the United States? Well, under the still enforced DMCA's anti-circumvention section, it's illegal to market information to the public on how to break copy protections, and the Reuters article did just that.
NewsForge also implies that Reuters might have been looking for a fight by writing and distributing the article. Will the government charge them with a violation of the Act? They've let millions of people know how to overcome anti-copyright protection.


 
best buy's best spot is Delaware

The muddy waters of the Minnesota Supreme Court ruling in a case about city subsidies leaves the future of a Best Buy Headquarters construction project in a quandry. We wouldn't do that in Delaware. Hey Best Buy! C'mon Down.


 
county clerk survives assassination attempt

This bloody story reminded me of the death threats made against me when I was Clerk of the Court. But those were just threats. These guys in Kentucky are really murdering their competition for the upcoming elections.


 
e-z broke

Apparently, the E-ZPass system is running in the red zone.


 
copyright extension and the mouse

Copyrighted materials are an exception to free speech. Copyright's protection allows the creators of artistic and literary works to profit from their endeavors, and encourages that type of activity. The authors have a limited monopoly on the expressions that they create. But, at some point the ideas expressed in copyrighted material should be allowed to enter into the public domain. A fairly recent copyright extension act is at the heart of the debate in a case captioned Eldred v. Ashcroft. The plaintiffs have a web site (designed by Matt Haughey, from metafilter), which:
collects material related to the constitutional challenge of the Sonny Bono Copyright Term Extension Act, which extended by 20 years both existing copyrights and future copyrights.
One of the items on the Eldred v. Ashcroft site is the following button, which they are encouraging people to copy and display to show support for their efforts:

free the mouse

Why a mouse? Eric Eldred wanted to publish old books on the internet. With the passage of this law, his plans were dashed. He decided to fight back, which is why this lawsuit has happened. But, why a mouse on the button? A number of copyrighted materials that still have some popularity in today's culture would be available to enter the public domain, and be reproduced freely if not for the copyright extension, including Mickey Mouse:
The first Mickey Mouse cartoon was set to enter the public domain in 2003, and characters such as Donald Duck and Goofy would have followed shortly after.
There's a lot of speculation in the press that Disney had a part in the passage of the copyright term extension act (see also the findlaw article entitled The Mouse that Ate the Public Domain). The irony here is that much of Disney's success has been based upon being able to make movies using characters and stories that have fallen out of copyright protection and into the public domain such as Cinderella, Snow White, and Quasimodo.


 
searching the mail

Should the customs office be allowed to open mail that goes across the border, without a warrant? That question was being debated in Washington, D.C., this week. The House has said yes:
a Customs officer may, subject to the provisions of this section, stop and search at the border, without a search warrant, mail of domestic origin transmitted for export by the United States Postal Service and foreign mail transiting the United States that is being imported or exported by the United States Postal Service. (from the Customs Border Security Act of 2002 )
This provision is part of a larger bill dealing with the Custom Office's budget, and it is possible that an amendment to the bill will remove that provision.


Thursday, May 23, 2002

delaware offers money school to other states

 
A program started almost three years ago in Delaware has seen some significant participation, and inquiries from other states. The Delaware Money School is an offering from the State Treasurer's Office intended to improve financial literacy amongst Delawareans. Senator Tom Carper, and State Treasurer Jack Markell are responding to requests from other states to share what the State has learned from presenting the classes:
Carper and Markell traveled to New York City on Monday to pitch their idea of expanding the Delaware Money School to national media, financial educators and financial services giant Citigroup, one of the leading sponsors of the Delaware program. They said the program, with modifications, could be adopted in many states, and that several already have expressed interest.

Since its launch nearly three years ago, the program, run by Markell's office, has taught 5,200 men and women in courses ranging from saving for college to saving for retirement. The courses, most of which are free, are paid for by corporate sponsors.

Analysts, planners, economists and other financial professionals volunteer to teach classes about four times a year. Roughly 70 classes are being offered this spring, up from 20 to 30 when the program first started.
The school is a great idea, and I'm happy that it's being shared with other states.


asia suffers from realnames shutdown

 
There's been considerable US media coverage about the shutdown of RealNames Corp lately. One aspect of the closing that hasn't been the focus of many of those stories is the impact upon asian web sites. The internet's domain name system can't handle asian characters. RealNames was enabling people to use keywords in asian characters to find those sites. Should the domain name system be changed to recognize other alphabets? Or should private businesses continue to address that issue? The CEO of RealNames is concerned that Microsoft might be the company that tries to fill the void in Asia that the closing of RealNames will leave.


nigerian email fraud arrests

 
You may have received an email or two asking for your assistance in helping the writer remove large sums of money from Nigeria. Such missives have graced my inbin more than once. My last message from Nigeria had me a little confused. I couldn't tell if the sender was actually from Nigeria, or from Zimbabwe:
I have served my beloved country Nigeria as a minister of Works and Housing for some years now.
and then, a couple of paragraphs later,
Please sir, I need to be educated professionally due to my low knowledge for any investment out side my country Zimbabwe. I would like this proposal to be treated with absolute trust and honesty.
The author's confusion alone made me distrust the email. Previous similar offers made it inherently untrustworthy.

But, I hadn't heard of any actions taken against the senders of those emails. Now I have. Six people were arrested in South Africa on fraud charges this weekend. Imagine being a legitimate businessman from Nigeria trying to engage in international business. Until this type of fraud stops, it will act as a barrier to small businesses from Nigeria trying to engage in trade on a global level. Maybe this arrest is a move in that direction.


trouble in paradise

 
Police at a tropical island are undertaking a murder investigation that's troubling for a couple of reasons. One is that it's the first murder on the island for 150 years. Another is that they have 2600 suspects:
In an unprecedented move, police have mailed out 2600 questionnaires, 1800 to island residents aged over 10 and 800 to tourists who were on the island on March 31.

The questionnaire asks people if they knew Patton, who worked at an island hotel, whether they saw her on the day she was murdered, and to detail their movements on that fateful day.


a thanks, and domain name abuse

 
Thanks to Larry Kestenbaum, from Polygon, the Dancing Bear, for sending some visitors our way, and for some interesting reading. It's great to see another blog addressing legal issues. Larry is a County Commissioner from Michigan who started his weblog this month while recovering from throat surgery. The Polygon entry from May 14th on domain name abuse includes a number of links to articles about when domain names lapse through accident or inattention, and someone else takes control. I'm going to include a couple of those here, but make certain to visit the Polygon site for the analysis of the issues there.

Two of the articles linked to on Polygon are from Harvard Student Ben Edelman. The first, Domains Reregistered for Distribution of Unrelated Content: A Case Study of "Tina's Free Live Webcam" examines the subject from a statistical and economics based approach. The second article, Large-Scale Intentional Invalid WHOIS Data: A Case Study of "NicGod Productions" / "Domains For Sale", covers "large-scale domain registrations" by companies that intentionally submit inaccurate whois information. The articles have been written to help groups deciding policy issues on domain registration, such as ICANN, and contain a number of thought-provoking observations.

Again, thank you Larry, and best wishes towards a speedy recovery.


Wednesday, May 22, 2002

litigating in public

 
The defendants who have been sued by PanIP, LLC for trademark infringement have put together a web site. Their reason for doing so:
To provide you with more information, Dickson Supply and several of the other defendants sued by PanIP have set up this special web site containing information about the cases. The site will include a guest book / bulletin board type conversation thread. The site will also include a spot for interested parties to sign up with their e-mail address so that they may be kept informed of events in the case as we post new information. We will also have a link or links to many of the documents filed in this lawsuit, including the complaint PanIP filed and the patents that are at issue.

Let this serve as a wake-up call to the ecommerce community and the consumer who will ultimately shoulder the burden of a higher cost of goods. Action needs to be taken now to protect our current methods of business and to prevent "patent pirates" of the future from taking advantage of what they perceive as easy money situations. Any ideas or assistance that you can provide is greatly appreciated.
If you have an e-commerce web site, you might want to visit their pages and see what the commotion is about. The Discussion Forum is filled with a number of interesting ideas and suggestions.


states and the high cost of medicine

 
States have been joining together to bring a number of lawsuits in recent years. An action against tobacco companies was followed by a suit against Microsoft. Now 35 States are teaming up to take on the high cost of medicine, in court. An attorney for one drug company has responded that the "solution should be legislation, not legal action."

If high prices are a result of "confusion over government pricing policies," he may have a point. A couple of recent cases involving pharmaceutical companies showed that there are some industry wide practices that need to be examined carefully. That might be easier to do in a courtroom than in a legislative hall.


talk about taxes

 
The constitution allows for taxation for the general welfare of the republic. But it often seems like taxes are being applied in a manner which influences behavior. Some of the topics being talked about concerning taxes, include raising the tax deduction for married couples, "revitalizing poor urban communities," and giving a tax break to purchasers of hybrid gas-electric cars. These all seem like reasonable things to do. Should taxation involve social engineering?


privacy rights in dna?

 
DNA is a hot subject in the UK these days, where a law is being considered that would make it a crime to take someone else's DNA without permission, and analyze it, unless it was being done for medical or investigative reasons.


challenge to sex offender registration

 
The Supreme Court will hear a case from Connecticut regarding the requirement to register as a sex offender:
The case the court accepted yesterday, Connecticut Department of Public Safety v. Doe, No. 01-1231, began in 1999, when two Connecticut men, whose names are being withheld, sued the state in federal court, claiming that they were not dangerous to the community and that they would be unfairly stigmatized if Connecticut's law were applied to them.
A federal court judge agreed with the men, ruling that a hearing needed to be held first to determine their dangerousness, before personal data about them could be posted on a web site. The court held that the right to due process would require that inquiry. A number of other issues have come up in other states involving notification to communities of convicted sex offenders, and it's possible that the Court will also address those issues. The way that Delaware handles community notification will probably be influenced by the Supreme Court's decisions.


if you receive an email from the state department...

 
A virus that is grabbing the email address of the US State Department, and placing it in the "from" field of emails resulted in a large number of people receiving virus infected emails apparently from the State Department on Tuesday. Variations of the Klez virus have been around since the late 1990s, but recently have been very active. When the program infects a computer, it searches the computer for email addresses, and randomly inserts an address into the "to" field and the "from" field. It appears that someone who was on a mailing list from the State Department caught the virus, and it began to spread to other people on that mailing list. Be careful when you open those emails, regardless of whom they're from.


kids.us domain for children

 
The internet has a new sandbox. One that will supposedly be safe for children - kids.us. The US House of Representatives approved a bill on Tuesday that allows a domain to be set up specifically for children. There will be some limits imposed upon pages within kids.us:
Web sites in the domain would be prohibited from linking to sites outside it, and they could not set up chat rooms, instant messaging or other interactive services unless they could certify that they did not expose children to pedophiles or pose other risks.
Also not to be included: violence, hate speech, sexually explicit material, and other topics deemed not suitable for children. As much as I like this idea, why do I think that it will bring out some strong opinions regarding what type of material is or isn't "suitable for children?"


copyright arbitration royalty panel rejected

 
Many internet radio stations faced the greatest threat to their continued existence today, and won. The Library of Congress, and the US Copyright Office decided not to impose royalty rates recommended by the Copyright Arbitration Royalty Panel (CARP). New rates will probably come in June. Let's hope that they aren't as high as the ones proposed by CARP, so that many fledgling internet radio stations can have the chance to find and build their audiences.


Tuesday, May 21, 2002

beyond bar codes

 
Radio Frequency Identification (RFID) tags have the potential to make many jobs considerably easier. You're used to the technology if you have an EZ Pass in your car. But the applications they can be used for go far beyond making driving though toll booths less painful. In many ways, they are the next step beyond barcodes. The chips contain an identification number. They don't emit radio waves themselves, but radio waves bounced off them can go to a receiver which will match them up with other information in a database. Hundreds of tags can be read at the same time if they are within the field of a reading device.

How will they be used? Here are some potential and some present day applications:
  • The Pentagon uses the tags in their filing system. Each file has a tag. When a file moves around, its location is noted in a database. If a number of files are in a box, the whole box can be inventoried without being opened. When a file is misfiled on a shelf, it's location can be pinpointed, and it can be moved to the proper spot.
  • Railroad cars, and their contents can have tags. When a train passes a location with a transmitter/receiver, the contents of the railroad car can be inventoried immediately.
  • Garbage trucks have been fitted with RFID tags. When a truck arrives at a landfill, the driver doesn't have to stop to fill out paperwork, but rather just drives up on a scale, and the weight of the truck's contents are recorded for later billing.
  • Items in a supermarket or store can be tagged. During checkout, all of the items or groceries can be counted at once, and only certain goods, such as produce will need to be manually handled by the cashier. An inventory of goods within the store can be conducted with portable wands, and matched up against the inventory of items purchased, to identify theft and loss, and to help make reordering easier.
  • You can wave a tagged item or card in front of a gasoline pump and it recognizes you, and matches your purchase with a credit card.
  • Employee badges can have tags in them, and can be used for security purposes.
There is a potential cost to this convenience. That cost might be privacy. The Insurance Commissioner of Delaware suggested within the past year or two that motor vehicle registrations contain a RFID tag. This would allow police officers to scan for invalid registrations from the side of the road. While that wasn't adopted, it is a possibility. Another use might be to put that technology into driver's licenses, and state identification cards.

The cost of the tags is hindering their widespread use. Presently, they cost somewhere between fifty-cents to a dollar. There are predictions that the cost will drop to less than a nickle per tag within the next few years. Once they do, they may become more common than barcodes.


gas emissions and gas cans

 
Starting in October, the price of a gasoline container will be somewhat higher in Delaware. That's because the law requires a new kind of gas can. One that will spill less and limit the amount of fumes that escape into the atmosphere. Delaware is one of a number of states requiring the new containers.
The Alliance for Proper Gasoline Handling, based in Washington, says the little spills while gassing up lawnmowers, boats and stranded automobiles put 9 million gallons of gas - the equivalent of a supertanker - into the ground each year. The vapors from the often uncapped 78 million old cans nationwide also contribute tons of emissions daily, advocates said.

"We were just stunned by the amount of emissions," said Richard Varenchik of the California Air Resources Board, which started the movement.

The California board estimates that 70 tons a day of smog-creating emissions eventually will be removed each day in California because of the measure.
While this is probably a good idea, it feels like only a small step in the right direction.


Monday, May 20, 2002

enforcing the smoking laws

 
Last week, Delaware's legislature passed one of the strictest anti-smoking laws in the country. The laws in California were part of the inspiration for the Delaware law, which prohibits smoking in a number of public places. The San Francisco Chronicle has an article about a day in the life of a California Deputy Sheriff, assigned to anti-smoking duty, which we are linking to here for those who get to enforce the anti-smoking laws in Delaware.


sexual harassment and anita hill

 
It's been over a decade since the highly publicized, and highly-watched confirmation hearing of Clarence Thomas. Anita Hill's testimony during that hearing didn't stop the confirmation of Thomas. But it did have an effect:
In the year after the hearing, women were elected to the House and Senate in unprecedented numbers. Charges of sexual harassment skyrocketed in the years that followed. In 1982, one sexual harassment charge was filed with the Equal Employment Opportunity Commission; 10 years later, there were 2,910.

Around that time, a damage remedy was added to the Civil Rights Act to ensure sexual harassment victims could get economic relief.

The ensuing years also brought sexual harassment protection for students, and served as a wake-up call for employers. Many companies adopted policies against sexual harassment and started educating managers.
The article mentions the National Women's Law Center, which contains information on a number of subjects, in addition to sexual harassment. It's an interesting site, and definitely worth a visit.


Sunday, May 19, 2002

radio, radio

 
Bandwidth. When it comes to radio stations, it's limited. That's why the industry is so heavily regulated. What if that wasn't true? What if the limitations on picking up a radio station were the result of the transmitters and receivers that we use? Imagine that we had more intelligent means of broadcasting and reception that could tremendously increase our choices of frequencies.
In a panel discussion and interview last week at the O'Reilly Emerging Technology Conference in Santa Clara, Reed put in plain English some of the concepts he discussed at the FCC and which he has put online at his Web site (www.reed.com/dpr.html). Simply put, he said, we have to start looking at spectrum as an almost limitless commodity, not a scarce one.

The current regulatory regime that allocates spectrum ``is a legal metaphor that does not correspond to physical reality,'' he said.

Why not? First, he said, the notion of interference has more to do with the equipment we use to send and receive signals than with the physics of radio waves.

"Radio waves pass through each other," Reed said. "They do not damage each other."

In the early days of radio, the gear could easily be confused by overlapping signals. But we can now make devices that can sort out the traffic.
If true, this has the potential to open up the broadcasting industry. It also holds implications that today's communications companies might not want to think about. Much of the regulation of airwaves is based upon the thought that it is a limited commodity. How will that change if we find that it is virtually unlimited?

And, imagine if the radio stations also broadcast metadata about the songs and speech that they were transmitting? Camworld has an article on Metadata on the Radio from last December that, combined with news about an almost infinite spectrum of bandwidth, might change around the way people think about the future of radio.








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