In the continuing battle between the internet and the law, the internet thought it was going to score a field goal today, but Lucy Law swiped the ball away. Aaugh!

Howard Bashman reported here earlier today that the Second Circuit issued a decision in case involving a former terrorism suspect who sued the FBI over a coerced confession. I didn't read the opinion, but apparently the plaintiff, an Egyptian student, won the appeal and will be able to proceed with the suit. Shortly after the opinion was released on the court's web site, however, it disappeared. Bashman notes that development here, and see also the Second Circuit blog Wait A Second! for more.

The ever-intrepid Bashman found the opinion and posted it on his own site. But then the Clerk of the Second Circuit contacted him and asked him to remove it, and he did so. A little follow-up coverage from Bashman is here. It seems as if some information under seal made its way into the released opinion, and the court plans to redact that information and re-release the opinion tomorrow. In this post at Appellate Law & Practice, S.Cotus chides Bashman for taking the opinion down. S.Cotus took his own copy down, but said it "doesn't quite sit right" with him.

But why not? It doesn't look like the court is trying to pull a switcheroo, or to extend the analogy from the illustration, pull a Lucy to the plaintiff's Charlie Brown. The reason for the withdrawal appears to be more about form than substance. If it turns out tomorrow that's not the case, it will be reported and the plaintiff will have a pretty strong rehearing petition.

Moreover, Bashman is an officer of the court. He's not a member of the Second Circuit Bar, but he certainly may become one some day if a case takes him there. But even if the Clerk's call was just a request for courtesy, and not backed up by the power of the court, there's no reason not to remove it from his web site. It doesn't seem like the Clerk asked him to destroy his own copy. And now that the press has gotten interested, it's no longer a big secret who's going to win the case. Honestly, I don't see this as any different than the situation where an opposing party in litigation accidentally sends over some privileged material during discovery. If they ask for it back, you give it back. We're all professionals here. Why not act like it?

In any event, it looks like a doubly moot issue now. Earlier, the opinion was not available on Bashman's site, but now it appears to be back up. (I still didn't read it past the caption.) So Bashman can go back to being S.Cotus's internet hero. To run my field goal analogy into the ground, it's like those annoying time-outs coaches have been calling right before last-second field goals this season. A lot of fuss for a do-over.

Granted, it would be big news if the case turns out the other way tomorrow. But this afternoon was way too early to suspect the court of trying to pull a fast one. At a minimum, I think the court has learned the lesson that once something is out on the internet, it's out for good. There's no need to rub it in their face.

Slate has been running this neat series by Prof. Tim Wu called "American Lawbreaking" this week. It's about those laws that are unenforced, and why that happens. Dan Savage at Slog points to one law I'm sure I've broken.

One curious bit is Prof. Wu's story about late-night fun and games in the U.S. Attorney's Office in New York City. Apparently, the prosecutors toss around the names of celebrities and try to come up with something they could be charged with, usually something obscure and nutty like "obstructing the mails."

I wonder if a frivolity like that led to this story out of Louisiana: a man is being charged with capital murder because the killing allegedly happened during the course of a robbery. The items stolen? The victim's body parts. His attorneys are arguing that there's no resale value in those parts, and thus he can't be guilty of robbery (and hence, not death-eligible). My hat tip for this, appropriately, is News of the Weird. Isn't the logical extension of this that if a drop of the victim's blood, or a hair or skin flake, lands on the killer as he leaves, he's a robber? That seems a little much, but we'll see what the Louisiana courts say.

Anyway, back to laws I might be breaking. I was meandering through the U.S. Code recently and ran across Title 18 section 794. It's titled "Gathering or delivering defense information to aid foreign government," but let's look at the language:

Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life....

I was going to bold the parts I wanted to discuss, but I think it's easier to read if I just pull them out as if they were written together. So let's take these relevant portions of the statute, with all the extraneous (for my purposes) stuff removed:

Whoever, with intent or reason to believe that it is to be used to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or citizen thereof, either directly or indirectly, any document, writing, or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life.

Using this more concise portion of the statute, let's move to a hypothetical. Suppose I write here on good old made-in-America BTQ something like, "I think the Australians should remove their troops from Iraq because it takes away from other issues in their upcoming election and their presence in the Middle East increases the risk of terrorist attacks on Australians, such as the Bali bombings in 2002."

Now, leave aside whether I believe this statement. Is writing something like that a violation of federal law that could subject me to life imprisonment?

I'll take the elements a little bit out of order as I break it down. My statement would clearly be a "writing." If someone outside the U.S. reads it, I've arguably communicated it, or at least attempted to indirectly communicate it, to a citizen of any foreign government. I might even concede that I had the intent or reason to believe the statement would "be used to the advantage of a foreign nation," namely Australia. Note that I could be wrong on the merits as long as I thought I was offering the Aussies good advice. Note that the "a foreign nation" I intend to advantage doesn't have to be the same "any foreign government" to whose citizen I transmit the statement, so no one in Australia even needs to read it as long as someone in, say, Canada does.

It really comes down to whether the statement is "relating to the national defense." If I were a prosecutor hell-bent on charging me under section 794, I would argue that the Australians pulling out of Iraq would "relate" to our national defense at least inasmuch as the war itself does, since a reduction in troops from other countries would increase the burden on our troops. Note also that the extra elements making the crime a capital one, eligible for the death penalty, include (ellipses omitted) whether the offense "directly concerned any other major element of defense strategy." If troop levels in Iraq are considered a "major element of defense strategy," I could get the needle!

Moreover, my statement doesn't even have to be injurious to the national defense; it must merely "relate" to it. I could write, "The Australians should increase their troop levels in Iraq as it will be to their advantage to deter future terrorist acts by stopping terrorists in Iraq before they go to the South Pacific to commit terrorist acts," and I think the result would be the same.

Can this be right? Assuming the conflict between the Israelis and the Palestinians "relates" to our national defense, is it a violation of federal law to write an op-ed offering to citizens over there a solution to the conflict?

Obviously, I'm being somewhat tongue-in-cheek here. I don't expect even Alberto Gonzales to advocate locking up or executing foreign policy or defense policy commentators. And I'm quite certain a court would recognize an as-applied First Amendment challenge to any such prosecution. But I think this little exercise, and on a much larger scale Prof. Wu's series, gives you an idea of how broadly written many criminal laws are, how expansive a literal reading of those laws might be, and how much conduct arguably covered by the laws either cannot or should not be punished. Even in prosecutors' bull sessions.

Update: As soon as I posted this, I had a thought: What if our President says to the presidents of North Korea and Iran that if they don't give up any attempts to produce nuclear weapons, we'll launch a war on those nations. In that purely hypothetical scenario, has the president violated section 794? It's "information relating to the national defense" (i.e., our "war plans," one of the death-eligible factors) communicated to a foreign government, and at least arguably intended to be used to the advantage of those governments (i.e., avoiding a war and escaping U.N. sanctions). I think a law that criminalizes presidential saber-rattling would violate the commander-in-chief clause of Article II of the Constitution, even without the current administration's (ahem) robust interpretation of that phrase. Still, it's a pretty dramatic example of how broadly one could read this law.

These days I'm having a hard time deciding who I dislike more. The idiots. Or the people in authority who try to protect the idiots from themselves, and in the process make life more difficult for the rest of us.

The infant cold/cough drug recall has been all over the news. As the parent of a child under two, there are several things about this story that annoy me.

First, the comment in the article linked of "There is no proven benefit for any of these products...". Bullshit. Our daughter , as children do, has gotten congested from time to time. You can tell from the cough that whatever is there is down deep. When she's congested she doesn't sleep very well because, duh, she has trouble breathing. We have given her infant cough medicine. Within about 30 min of taking it, what was lodged in her sinuses starts running out her nose, and before long she can breath (and sleep) again. No proven benefit my ass.

Second, this little gem. "While most parents use these medicines appropriately and follow dosing directions, an assessment of available data on the use of pediatric cough and cold medicines has identified rare instances of misuse leading to overdose, particularly in infants under 2 years of age."

There are dosage instructions on the bottles. In every instance I have seen, the label says "Under 2 - consult a physician. You have pediatricians and pharmacists you can ask. Another article (which I can't locate at the moment) said the biggest risk came from overdose, and that part of the problem was parents using an adult medicine dispenser because the infant one was missing. I'm sorry, but if your parents don't have enough common sense to know that an adult dose of medicine might be a bad idea for an infant, you're fighting an uphill battle in the whole survival game.

So now, because of 56 deaths in 38 years (less than 1.5/year), many of which can be attributed to product misuse, the People Who Know What's Best for You have swooped in to save the people who can't follow a simple dosage label. So now, the next time my daughter gets congested and can't sleep, we get to schedule a doctor's visit, take time off of work, get the prescription, drive to the pharmacy to pick it up, and probly pay 3 times as much for the exact same medicine. Awesome.

The article states that they are thinking about pulling these medicines for children up to 6 years old, and possibly 12. Good grief. Next thing you know they will be banning penicillin and antibiotics because some people have severe reactions to them. Never mind the good done. We must protect the idiots.

I heard the song "Radar Love" the other night, and it got me thinking. If you're not familiar, the song is about a guy who gets a radar-type signal from his woman that she needs to see him, so he drives all night to get to her. At one point, the singer notes that, thanks to radar love, they "don't need a letter at all," which I always thought was a reference to the song "The Letter," which features a man who gets a letter from a woman demanding his presence immediately. (This requires him to "Get [] a ticket for an aeroplane, ['cause he] ain't got time to take a fast train.")

Anyway, I realized how out-of-date "Radar Love" is. In this day and age of cell phones and free long distance, not to mention the internet and instant messaging, the lonely and lovesick don't need telepathy anymore. Or maybe you can look at it a different way and imagine that Golden Earring was prescient. Maybe they imagined some type of futuristic messaging system that would bounce off radars and send missives to faraway people.

That thought reminded me of a Yes song I've mentioned I don't really like, "I've Seen All Good People." There's a line in there that goes "Send an instant karma to me/ initial it with loving care." (That's Yes, as in, Yes, prog rock was weird.) This always makes me think of email. It's bizarre to me to imagine some acid-addled guitar nut dreaming up the world wide web.

But this whole thing got me musing about other classic rock songs that are technologically out-of-date, or otherwise would have to use references to modern technology if they were written now. (An aside: One day, will we hear "Doctor My Eyes" in an ad for LASIK surgery?)

Some suggestions for lyrical alterations:

The Police, "Every Breath You Take": "Every friend you make/ on your MySpace page/ In every Facebook group/ for you I will snoop..."

The Beatles, "Let It Be": When I find myself in times of trouble/ Mother Mary IM's me/ LOL 4evr, let it B..."

The Beatles, "Sgt. Pepper's Lonely Hearts Club Band": "We're Dr. Neil Clark Warren's eHarmony band..."

Tommy Tutone, "867-5309/Jenny": "Jenny, Jenny, I used caller i.d. block/ But you star-69'ed me and gave me a shock..."

Manfred Mann, "Do Wah Diddy Diddy": "There she was just a-walkin' down the street/ singing do wah diddy diddy dum diddy do/ I put an ad on craigslist and I said I'd like to meet/ singing do wah diddy diddy dum diddy do..."

Joan Jett, "I Love Rock 'n' Roll": "I love rock 'n' roll/ download another song into your iTunes library/ I love rock 'n' roll/ Put in your iPod earbuds and dance with me..."

Other suggestions?