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facing cary

nice comment
led me to look back the poem
only to find it
still apt to the present moment

i must turn to you and write
not enough to speak to myself and feel i’m done
i must speak to you

who am i talking to?
to whom am i speaking?
i&i speak to u&u

i speak to riaa

to u

you make the best argument you can for your client
i speak down to you
that will never do
i am u

i am your sons and daughters
who have grown up on the wealth you have provided
fancy cars and ear phones all the way
i am u

make connection
stop recording
hold sammy in your arms
give sammy to fern to whom he wants to go
two points together with love between
start listening
turn up volume
let flow

dear cary
come sit down in virtual space as avatar for riaa
speak with university

let’s play virtual let’s play real
let’s make a party
let’s make a deal

we consider anything reasonable which does not impede the accomplishment of our mission

we play an interactive video game in which your avatar is controlled from your side and mine controlled from mine
engaging in a structured negotiation
scared professoriat at one side all wired in against whatever hollywood has to offer


Jamaica and America’s War on Drugs

new york daily news

7:08:15 AM
May 29, 2010
No amount of money, police powers, weaponry, wishful thinking or pseudo-science will make our streets safer, only an end to prohibition can do that. How much longer are you willing to foolishly risk your own survival by continuing to ignore the obvious, historically confirmed solution? If you support prohibition then you’ve helped trigger the worst crime wave in history.

Read more:

jamaica outlook

last day on alchemy – at least for awhile

back to wesport, just put laundry in the dryer, end of an amazing time, beginning of another

howard responds, and i to him

Dear Charlie:

Here’s my response.



Dear Charlie:

First of all, given the facts as they have come out both before and as reported in the various media during the trial (I obviously haven’t seen the transcript), I still tend to doubt that this was a particularly winnable case.

so stop right there. you mean winnable at trial.

BTW, in 2004 we “won” this battle in Canada before it ever really started by preventing the disclosure of the names behind IP addresses in the Canadian version of the RIAA’s attempt to sue individuals. And we have a similar statutory minimum damages regime here, inspired by the USA but with some differences such as a max of CDN $20,000 per work. Still quite dangerous. The Canadian record companies were unable or unwilling to provide sufficient admissible evidence to warrant this disclosure in light of the “risk that the information as to identity may be inaccurate”, the resulting exposure to serious civil liability and the invasion of privacy. We were helped by a pretty good federal privacy statute in Canada and at least two ISPs that seriously stood up for their customers at the time (Shaw and Telus). See here and here. I was involved on the winning side. It’s really too bad that these cases weren’t likewise stopped at the outset in the USA, but that battle appears to have been lost a long time ago in other cases.

and never fought, a tragedy in leadership for harvard to stand idly by, unwilling to put its weight behind motion to stop their subpoenas

There’s really not much I can add to my original blog post from August 3, following the July 31 verdict and my other posts on this.

I can point to Ray Beckerman’s “wish list”, which outlines several possible technical and practical arguments based upon such matters as dates of registration, lack of proof of actual “distribution” according to the language of and case law on § 106(3), etc. which might or might not have worked to get Joel off the hook. Ray also mentions our Canadian case in his point that “Plaintiffs should be required to prove that the downloaded song file copies were played and listened to, and their contents verified, by a person qualified to make such determination. See Deposition of President of MediaSentry in BMG v. Doe.”

all respect to ray, these defenses do not join the fundamental issues. this trial was not an exercise in getting joel off the hook.

I don’t know which of these issues were addressed at trial or how much evidence on these issues there is on the record.

Apart from a victory based on issues such as those on Ray’s “wish list”, the only other conceivably “winnable” issues might have been a very uphill fair use argument and a potentially more successful argument on the unconstitutionality of the statutory minimum damages provisions. I know you have tried to pursue both of these issues.
these are the issues, not whether joel “did it”

• Fair Use. If there was a winnable argument here, which far greater experts than me have doubted according to your own blog,

stop right there. starting from scratch the fair use issue now looms as a fundamental question in the allocation of function between judge and jury as providing a limitation in wisdom to the expansive power of copyright, so let them doubt, then consider, then be convinced

it would probably have involved a lot of analysis of the fourth factor (“the effect of the use upon the potential market for or value of the copyrighted work”) and this would presumably have required a lot of economic evidence. This evidence might have come, for starters, from your Harvard colleague Oberholzer-Gee and/or Andersen/Frenz in the UK as expert(s) to show that there was evidence as to no overall harm and maybe even a “benign” or “positive” effect on “the potential market for or value of the copyrighted work”. At least such evidence might have enabled Judge Gertner to deny summary judgment on this issue. It would have also enabled a great debate with the very able Stan Liebowitz, with whom one may disagree – but he is still a very accomplished and important economist in the IP area and an experienced expert witness.

as far as i can see leibowitz and oberholzer-gee essentially agree, stan putting his value judgment on “professionally” recorded music and felix on the growth in volume and quality of music from the people. but see how this very question mistakes the nature of the inquiry as a judgment for the jury to make case by case, this being joel’s case and joel’s right to trial by jury in which the fairness and justice of the actions being taken against him in the name of the state are open to address

Maybe other evidence in addition from someone with knowledge about the economic insides of the record industry would have helped. I frankly doubt, as you have suggested in the Canadian media in your interview with Jesse Brown, that the lack of “fairness” on the part of the record industry either in the way it has marketed music to its customers or treats is customers in its litigation campaign is a winnable fair use argument under §107, even if you are right that the four factors are not “exclusive” and that Court can go beyond the four factors and even devise a new “fair use” affirmative defense. Whether or not there is the makings of a potential “abuse of process” or Posnerian “misuse” of copyright argument or something along these lines is hypothetically an interesting issue to speculate upon for another day, but doesn’t seem to be on the record here and would also presumably require a lot of solid evidence.

say more about Posnerian “misuse” of copyright. and note how the whole bogus strategy of imposing statutory damages on noncommercial direct infringers was put across on posner’s aimster dicta raised to holding by easterbrook in a case managed by jenner & bloch in which no challenge to the imposition of statutory damages was made

• Unconstitutional statutory minimum damages. This seems potentially much more winnable than fair use. But if there is a winnable argument here, it would probably also require lots of evidence to show that a statute that permits an award of up to $150,000 per work in these circumstances and $22,500 per work times 30 works as actually awarded for downloading and supposedly sharing 30 songs that sell for about $0.99 each retail goes so far beyond any possibly valid “deterrent” or “punitive” purpose that it is, on its face, unconstitutional.


Unfortunately, the SCOTUS may not see this as self evident. Again, maybe Oberholzer-Gee or Andersen/Frenz could have helped here, and perhaps other experts on the economics of the music industry, how file sharing actually works, how many of the ocean of unauthorized downloads can be causally attributed to Joel, and the overall question of proportionality. Maybe some expert sociological or criminological evidence on “deterrence”. But given the post-Eldred approach to deference to Congress on quantifiable copyright policy matters such as extending the term from life + 50 to life + 70, I would imagine that you would now need a great deal of solid evidence to show that this choice of a numerical range of a minimum of $750 and up to $150,000 per work for willful infringement is not only beyond “arguably unwise” but also somehow clearly unconstitutional. For better or worse, “unwise” and “unfair” may not equate with “unconstitutional.”

there are two questions: first, when, if ever (and i say never) did congress decide that draconian damages against consumers was the appropriate response to peer-to-peer file sharing? second, reached only if the answer to the first requires it, would be whether the power to impose this damage at the unconstrained behest of the copyright industry by civil process (thereby bypassing the protections afforded criminal defenants) with no proof of actual damage caused by the defendant, purely for deterrence of conduct involving no trespass is unconstitutional.

BTW, there is an important article in the works by Pam Samuelson and Tara Wheatland, which I’m sure you know about, but for the benefit of other readers can found here as a work in progress (recently revised).

[more to come]

Best regards,


Jury Nullification

the jury did just what it was told to do. the jury is not to be faulted for the verdict. the fault is in the law.

the judge tells the jury what the law is, and orders the jury to enforce it. This is the first constitutional hypocrisy. The Jury is the law. “You are the law.” Paul Neuman in the Verdict had it right.

People ask how can common-sense juries have returned verdicts of $675k against Joel and $1.92 mil against Jammie Thomas Rasset? The answer is the verdict form and the judge’s order to the jurors to fill it in as they are told. The jury is not to blame. The fault lies with the interpretation of the law that shaped the form and with the judge’s order that the jury is bound to it. Congress never authorized it. Our Constitution does not condone it.

On this we have just begun to fight.

There is no place on the verdict form for judgment whether what Joel did was right or wrong, fair or unfair. The law the RIAA persuaded the judge to impose simply declared the conduct of a generation to be wrong, no jury trial. Just fill in the form, the jury’s only task to say how much the defendant must pay, with instructed minimum and maximum for each infringement.

thirty times

The jurys’ bankrupting verdicts are not flukes. They are the product of rotten law. Proof in math is often made by reductio ad absurdum: If your logic leads to absurd result then your premise must be wrong.

Fairness and Justice are jury issues, in this case taken from the jury, the jury’s fundamental function nullified.

The table is now set. The question is presented. Next event is Judge Gertner’s opportunity (or not) to remit the excessive award against Joel to a reasonable (constitutional) amount.

library of cyberspace – 911

urs, amar, phil, jp, i’m aboard alchemy reading the notes of the gbs conference you organized feeling a thrill as i grasp the dimension of what the notes record. The perspective being articulated is public interest with education as strategy for the future. the corporate giant needs an equally growing open environment in which to thrive. The idea that public university and philanthropy could offer balance becomes a possible reality. thank you for great work in organizing this event. i am tremendously sorry to have been absent.

highlights in the notes for me:

“But the Google Settlement puts extreme limits on what libraries can do what their digital copies. They can’t have faculty/students READ them, for instance. Materials remain dark until 2050–an eternity in the digital world.” Did somebody at Harvard actually agree to this?

“If every provost told every committee chairmen at each university that they liked open access then we could all join together and make the transition. It will take a while and there will be calamities, but if provosts, presidents, and chairs of committees gave this support then the staff and researchers will follow.” – radical!


It is fear that has held our society in the belief that our children are not to be taught everything and are therefore to live a naïve existence till fate makes them wiser or not.

Hi Charlie!

Glad that you are finding the notes helpful! If interested, we’ve posted the video record of the plenaries here:

And although un-edited and not public quite yet, audio of the breakouts can be found here:

You were most certainly present in spirit, as most of the digital media can attest 🙂



hello justice roberts – internet calling justice roberts

Mr. Justice Stephen Breyer
c/o Clerk of Court
Supreme Court of the United States
Washington, D.C. 20543

Dear Mr. Justice Breyer:

By an oversight I cannot explain, an earlier letter addressed to Mr. Justice Souter and delivered June 26, 2009, was not successfully filed and entered on the Supreme Court docket. Its substance, which is still timely, is reproduced below, but with the additional information pertinent to you that your son Michael is a principle in the company that would do the operational work of digital transmission if the request below were to be granted. Anticipating recusal, I ask if possible that our request be referred to the Chief Justice.

I am the Weld Professor of Law at Harvard Law School and founder of the Berkman Center for Internet & Society at Harvard University. I represent (pro bono) Joel Tennenbaum, a student being prosecuted by the RIAA for downloading and sharing music through a peer-to-peer network, Sony BMG Music Entertainment, et al., v. Joel Tenenbaum, consolidated to Capitol Records, Inc., et al. v. Noor Alaujan, No. 03-cv-11661-NG (D. Mass.).
On the defendant’s own behalf and on behalf of the digital public, Defendant Tenenbaum moved to establish public access through internet to gavel to gavel coverage of the public proceedings in the case, starting with pretrial proceedings. District Judge Gertner granted this motion with respect the public pretrial proceeding scheduled for January 24, 2009, involving argument of motions, and indicated that further requests pertaining to internet public access for later proceedings and trial would be entertained. The courtroom’s already installed equipment was to be used to capture and narrowcast the proceeding to the Berkman Center for Internet & Society at Harvard University, which would in turn serve it to and share it with open net. See Capitol Records, Inc., et al. v. Alaujan, 593 F.Supp.2d 319.

This plan was frustrated by an extraordinary writ of advisory mandamus issued by the First Circuit Court of Appeals barring Judge Gertner from allowing this public access to her courtroom. The First Circuit panel declared that Local Rule 83.3 of the District Court denied Judge Gerter any and all authority to allow digital recording in her court. See In re Sony BMG Entertainment, et al., 561 F.3d 1. A request for hearing en banc was denied on April 30, 2009. A petition for certiorari to the Supreme Court of the United States was filed on June 2, 2009 and is now pending, docketed as No. 08-1506.

The trial of this case is scheduled to begin July 27, 2009. Judge Gertner will abide by the First Circuit order of prohibition unless it is stayed or overturned.

To interpret the Local Rule so rigidly as to exclude any and all digital preservation and dissemination of the public proceedings of the district courts is arbitrary. The issues in this case are of particular concern to the digital generation and to the future of the internet.

I respectfully request that either you or Chief Justice Roberts suspend Local Rule 83.3 and the First Circuit’s order of prohibition in order to permit digital recording and dissemination of the trial; or, in the alternative, grant a stay of all further proceedings in the case to permit consideration by the full Supreme Court of our petition for certiorari.

Absent the requested suspension of the rule or stay of the trial, the petition for certiorari will be moot.

For these reasons, we respectfully seek your assistance.

Respectfully submitted,

Charles Nesson
Counsel for Petitioner Joel Tenenbaum


I, the undersigned counsel, hereby certify that on June 26, 2009, pursuant to Rule 29 of this Court, I caused the attached letter to be served on counsel of record for the Respondents in this action by United States Postal Service, first class, at the following addresses:

Daniel J. Cloherty
Victoria L. Steinberg
Dwyer & Collora LLP
600 Atlantic Avenue, 12th Floor
Boston, MA 02210

Eve G. Burton
Timothy M. Reynolds
Holme Roberts & Owen LLP
17 Lincoln, Suite 4100
Denver, CO 80203

Charles Nesson
Counsel for the Petitioner

gobblygook- and i didn’t paste in all of it – “SECRET” – not “UNCONSENTED”: “ferae naturae”

is there a right to create bits in cyberspace? is there a right to capture the value of them from the public domain?

September 1960. i enter harvard law school. my first class is PROPERTY, taught by W. Barton Leach. the first case in my property casebook deals with ferae naturae, wild animals, unowned things of value in the public domain. the case name is Pierson v. Post. the setting (loosely) is a long and empty public beach in front of a crusty dutchman’s house who is sitting on his porch looking out at the beach in front of him with a rifle on his knee, that’s Pierson; and Post, an english squire type who likes to hunt foxes with a pack of dogs. On the day of the event in question Post and his dogs succeed in flushing a fox and chasing it out onto the beach. They are in hot pursuit coming down the beach in front of Pierson’s porch, fox, dogs and Post on horse galloping behind. Pierson raises his rifle and shoots the fox dead. who owns the fox?

i make no “secret” that i record. my default is red light on. whether i have my red light on is no business of the state. whether those with whom i come in contact consent to be in the environment i am in or whether they insist on theirs seems not the or not is between them and me, not the stuff of five year felony

the massachusetts statute purporting to make it a five year felony to digitally record my environment if any one in it objects, with requirement that i must announce to each new identity coming into the environment i am recording that i am laying down digital track = bullshit!. the massachusetts statute is gobblygook. the federal courts of the united states of america have no reason to waste their time with it unless they find it impeding their freedom to administer and project federal law. the idea that the federal court and a federal judge would become the instruments of its enforcement misconceives the proper balance of power and responsibility between state and federal governments in service of their constitutions and their citizens bill of rights. this law has been used to prosecute a kid with long hair driving his car, music player and recorder beside him on the seat, pulled over by police (for his long hair?), who activates the recorder beside him on the seat so that all of what follows is evidence. the cops hassle him in a manner he finds deeply offensive, then let him go. he goes to the police station and complains to the captain about abuse. he tells the captain he has recorded evidence of it. the captain notifies the prosecutor, who prosecutes this kid for violation of this gobblygook statute. the case is tried to a jury. the judge tells the jury that it must ignore all that the police did and said. he gives a fearsome anti-nullification charge that the jurors must obey their oath to apply the letter of the law. the kid is convicted, of a felony with a five year sentence, don’t know if he actually did time. my friend steve elliot told me all about this when i was last in truro. he’s a country lawyer who was in the abington massachusetts courtroom when judge nagle made it happen. steve eliot, father of justin elliot, news editor at TPM, google him, he comes right up. AFFIRMED by the SJC. bullshit!

not “unconsented”


Massachusetts General Law ch. 272, section 99 (2009)

section 99. Eavesdropping, Wire Tapping, and Other Interception of Communications.

Interception of wire and oral communications.–

A. Preamble.

The general court finds that organized crime exists within the commonwealth and that the increasing activities of organized crime constitute a grave danger to the public welfare and safety. Organized crime, as it exists in the commonwealth today, consists of a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services. In supplying these goods and services organized crime commits unlawful acts and employs brutal and violent tactics. Organized crime is infiltrating legitimate business activities and depriving honest businessmen of the right to make a living.

The general court further finds that because organized crime carries on its activities through layers of insulation and behind a wall of secrecy, government has been unsuccessful in curtailing and eliminating it. Normal investigative procedures are not effective in the investigation of illegal acts committed by organized crime. Therefore, law enforcement officials must be permitted to use modern methods of electronic surveillance, under strict judicial supervision, when investigating these organized criminal activities.

The general court further finds that the uncontrolled development and unrestricted use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the commonwealth. Therefore, the secret use of such devices by private individuals must be prohibited. The use of such devices by law enforcement officials must be conducted under strict judicial supervision and should be limited to the investigation of organized crime.

B. Definitions. As used in this section–

1. The term “wire communication” means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception.

2. The term “oral communication” means speech, except such speech as is transmitted over the public air waves by radio or other similar device.

3. The term “intercepting device” means any device or apparatus which is capable of transmitting, receiving, amplifying, or recording a wire or oral communication other than a hearing aid or similar device which is being used to correct subnormal hearing to normal and other than any telephone or telegraph instrument, equipment, facility, or a component thereof, (a) furnished to a subscriber or user by a communications common carrier in the ordinary course of its business under its tariff and being used by the subscriber or user in the ordinary course of its business; or (b) being used by a communications common carrier in the ordinary course of its business.

4. The term “interception” means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication; provided that it shall not constitute an interception for an investigative or law enforcement officer, as defined in this section, to record or transmit a wire or oral communication if the officer is a party to such communication or has been given prior authorization to record or transmit the communication by such a party and if recorded or transmitted in the course of an investigation of a designated offense as defined herein.

5. The term “contents”, when used with respect to any wire or oral communication, means any information concerning the identity of the parties to such communication or the existence, contents, substance, purport, or meaning of that communication.

6. The term “aggrieved person” means any individual who was a party to an intercepted wire or oral communication or who was named in the warrant authorizing the interception, or who would otherwise have standing to complain that his personal or property interest or privacy was invaded in the course of an interception.

7. The term “designated offense” shall include the following offenses in connection with organized crime as defined in the preamble: arson, assault and battery with a dangerous weapon, extortion, bribery, burglary, embezzlement, forgery, gaming in violation of section seventeen of chapter two hundred and seventy-one of the general laws, intimidation of a witness or juror, kidnapping, larceny, lending of money or things of value in violation of the general laws, mayhem, murder, any offense involving the possession or sale of a narcotic or harmful drug, perjury, prostitution, robbery, subornation of perjury, any violation of this section, being an accessory to any of the foregoing offenses and conspiracy or attempt or solicitation to commit any of the foregoing offenses.

8. The term “investigative or law enforcement officer” means any officer of the United States, a state or a political subdivision of a state, who is empowered by law to conduct investigations of, or to make arrests for, the designated offenses, and any attorney authorized by law to participate in the prosecution of such offenses.

9. The term “judge of competent jurisdiction” means any justice of the superior court of the commonwealth.

10. The term “chief justice” means the chief justice of the superior court of the commonwealth.

11. The term “issuing judge” means any justice of the superior court who shall issue a warrant as provided herein or in the event of his disability or unavailability any other judge of competent jurisdiction designated by the chief justice.

12. The term “communication common carrier” means any person engaged as a common carrier in providing or operating wire communication facilities.

13. The term “person” means any individual, partnership, association, joint stock company, trust, or corporation, whether or not any of the foregoing is an officer, agent or employee of the United States, a state, or a political subdivision of a state.

14. The terms “sworn” or “under oath” as they appear in this section shall mean an oath or affirmation or a statement subscribed to under the pains and penalties of perjury.

15. The terms “applicant attorney general” or “applicant district attorney” shall mean the attorney general of the commonwealth or a district attorney of the commonwealth who has made application for a warrant pursuant to this section.

16. The term “exigent circumstances” shall mean the showing of special facts to the issuing judge as to the nature of the investigation for which a warrant is sought pursuant to this section which require secrecy in order to obtain the information desired from the interception sought to be authorized.

17. The term “financial institution” shall mean a bank, as defined in section 1 of chapter 167, and an investment bank, securities broker, securities dealer, investment adviser, mutual fund, investment company or securities custodian as defined in section 1.165-12(c)(1) of the United States Treasury regulations.

18. The term “corporate and institutional trading partners” shall mean financial institutions and general business entities and corporations which engage in the business of cash and asset management, asset management directed to custody operations, securities trading, and wholesale capital markets including foreign exchange, securities lending, and the purchase, sale or exchange of securities, options, futures, swaps, derivatives, repurchase agreements and other similar financial instruments with such financial institution.

C. Offenses.

1. Interception, oral communications prohibited.

Except as otherwise specifically provided in this section any person who–

willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication shall be fined not more than ten thousand dollars, or imprisoned in the state prison for not more than five years, or imprisoned in a jail or house of correction for not more than two and one half years, or both so fined and given one such imprisonment.

Proof of the installation of any intercepting device by any person under circumstances evincing an intent to commit an interception, which is not authorized or permitted by this section, shall be prima facie evidence of a violation of this subparagraph.

2. Editing of tape recordings in judicial proceeding prohibited.

Except as otherwise specifically provided in this section any person who willfully edits, alters or tampers with any tape, transcription or recording of oral or wire communications by any means, or attempts to edit, alter or tamper with any tape, transcription or recording of oral or wire communications by any means with the intent to present in any judicial proceeding or proceeding under oath, or who presents such recording or permits such recording to be presented in any judicial proceeding or proceeding under oath, without fully indicating the nature of the changes made in the original state of the recording, shall be fined not more than ten thousand dollars or imprisoned in the state prison for not more than five years or imprisoned in a jail or house of correction for not more than two years or both so fined and given one such imprisonment.

3. Disclosure or use of wire or oral communications prohibited.

Except as otherwise specifically provided in this section any person who–

a. willfully discloses or attempts to disclose to any person the contents of any wire or oral communication, knowing that the information was obtained through interception; or

b. willfully uses or attempts to use the contents of any wire or oral communication, knowing that the information was obtained through interception, shall be guilty of a misdemeanor punishable by imprisonment in a jail or a house of correction for not more than two years or by a fine of not more than five thousand dollars or both.

4. Disclosure of contents of applications, warrants, renewals, and returns prohibited.

Except as otherwise specifically provided in this section any person who–

willfully discloses to any person, any information concerning or contained in, the application for, the granting or denial of orders for interception, renewals, notice or return on an ex parte order granted pursuant to this section, or the contents of any document, tape, or recording kept in accordance with paragraph N, shall be guilty of a misdemeanor punishable by imprisonment in a jail or a house of correction for not more than two years or by a fine of not more than five thousand dollars or both.

5. Possession of interception devices prohibited.

A person who possesses any intercepting device under circumstances evincing an intent to commit an interception not permitted or authorized by this section, or a person who permits an intercepting device to be used or employed for an interception not permitted or authorized by this section, or a person who possesses an intercepting device knowing that the same is intended to be used to commit an interception not permitted or authorized by this section, shall be guilty of a misdemeanor punishable by imprisonment in a jail or house of correction for not more than two years or by a fine of not more than five thousand dollars or both.

The installation of any such intercepting device by such person or with his permission or at his direction shall be prima facie evidence of possession as required by this subparagraph.

6. Any person who permits or on behalf of any other person commits or attempts to commit, or any person who participates in a conspiracy to commit or to attempt to commit, or any accessory to a person who commits a violation of subparagraphs 1 through 5 of paragraph C of this section shall be punished in the same manner as is provided for the respective offenses as described in subparagraphs 1 through 5 of paragraph C.

D. Exemptions.

1. Permitted interception of wire or oral communications.

It shall not be a violation of this section–

a. for an operator of a switchboard, or an officer, employee, or agent of any communication common carrier, whose facilities are used in the transmission of a wire communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of service or to the protection of the rights or property of the carrier of such communication, or which is necessary to prevent the use of such facilities in violation of section fourteen A of chapter two hundred and sixty-nine of the general laws; provided, that said communication common carriers shall not utilize service observing or random monitoring except for mechanical or service quality control checks.

b. for persons to possess an office intercommunication system which is used in the ordinary course of their business or to use such office intercommunication system in the ordinary course of their business.

c. for investigative and law enforcement officers of the United States of America to violate the provisions of this section if acting pursuant to authority of the laws of the United States and within the scope of their authority.

d. for any person duly authorized to make specified interceptions by a warrant issued pursuant to this section.

e. for investigative or law enforcement officers to violate the provisions of this section for the purposes of ensuring the safety of any law enforcement officer or agent thereof who is acting in an undercover capacity, or as a witness for the commonwealth; provided, however, that any such interception which is not otherwise permitted by this section shall be deemed unlawful for purposes of paragraph P.

f. for a financial institution to record telephone communications with its corporate or institutional trading partners in the ordinary course of its business; provided, however, that such financial institution shall establish and maintain a procedure to provide semi-annual written notice to its corporate and institutional trading partners that telephone communications over designated lines will be recorded.

2. Permitted disclosure and use of intercepted wire or oral communications.

a. Any investigative or law enforcement officer, who, by any means authorized by this section, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose such contents or evidence in the proper performance of his official duties.

b. Any investigative or law enforcement officer, who, by any means authorized by this section has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may use such contents or evidence in the proper performance of his official duties.

c. Any person who has obtained, by any means authorized by this section, knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose such contents while giving testimony under oath or affirmation in any criminal proceeding in any court of the United States or of any state or in any federal or state grand jury proceeding.

d. The contents of any wire or oral communication intercepted pursuant to a warrant in accordance with the provisions of this section, or evidence derived therefrom, may otherwise be disclosed only upon a showing of good cause before a judge of competent jurisdiction.

e. No otherwise privileged wire or oral communication intercepted in accordance with, or in violation of, the provisions of this section shall lose its privileged character.

morning mail from jamaica

From: Barbara Ellington
Date: Sun, May 3, 2009 at 10:02 PM

Charley’s Questions
SET: Students Expressing Truth

1. Besides the beauty of the landscape and the warmth of the people, what are your reasons for using the Berkman Center for Internet and Society to help Jamaica?

2. Has it been successful; what else would you like to achieve here?

3. How would you describe the progress made by Jamaica as a country and technologically over the years you have been visiting Jamaica?

4. Name five things that could reform Jamaica’s prison system.

5. With the high crime rate in the island and the daily growing statistics, what other realistic steps can we take to combat crime?

6. What propelled you to become involved in the civil rights issues in a positive way? Was there a positively defining moment between you and black folks back home?

7. Another law professor from Harvard, Charles Ogletree, taught the Obamas at Harvard, did you teach him or come in contact with him? What kind of student was he?

8. You told me that you admire him (President Obama), why is this so? Knowing him as you do, what do you think he will take from his exposure to and knowledge of constitutional law into his choice for the Supreme Court vacancy?

9. I have met people from age 19 to 90 who have said, given America’s racist history, they did not expect to see a black president of the United States in their lifetime. Given what you know of your country, did you expect it?

10. I don’t believe in miracles but after only 100 days, your countrymen and woman almost expected Obama to turn water into wine, what improvements to foreign policy and the economy do you expect to see at the end of the first term?

11. How has the poker initiative been going?

12. What else would you like to accomplish in your life’s work?

13. What thrills you; makes you sad or surprises you about life?