Category Archives: Everything Else

A little bit of this, a little bit of that.

Operation Cornflakes and WWII-era Trolling

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What do you get when you combine warfare + primitive trolling techniques?

Operation Cornflakes, a WWII psychological warfare operation conducted by the United States. The campaign’s namepropaganda2_3 “was the natural result of the aim of the campaign, to place American propaganda on the German breakfast table each morning.”

Operation Cornflakes seriously resembles something 4Chan would come up with if, god forbid, they were in charge of military strategy:

Operations Cornflakes was designed to drop German mail sacks containing subversive material in carefully addressed envelopes inside the Reich alongside shot-up enemy trains. After the fighter-bombers stopped the train with their bombing and strafing fire, they would drop mailbags filled with propaganda letters into the wreckage. The Germans would find the bags and presume that they came from the damaged train. They would then deliver them as normal mail. The growing disruption of the German transportation system caused much mail to be misdirected and scattered about the country. Further, it was thought that any average citizen or soldier upon discovering legitimate German mail sacks in a recently bombed rail terminus or along the railroad tracks would turn them over to the postal authorities for delivery to their proper destination.

German phonebooks were used to address the mail to actual German citizens. The theory was that German citizens would, upon receipt, assume it was a legitimate letter sent from a domestic anti-Nazi opposition movement. The German citizens would then be so demoralized by the junk mail they would end the war.

Some of the propaganda, such as the Hitler skull stamps, was intended simply to mock and ridicule the Germans, in an early form of trolling-by-photoshopped-images. Other pieces of propaganda, however, were intended to be taken seriously by the unwitting recipients, such as this letter from the ‘Christian Soldiers Union’:

“Comrades! Don’t let them take advantage of you with that old slogan ‘Hold out to the last man,’ and pointlessly be killed, or crippled for the rest of your life! The officers who give these orders are usually far from the shooting. All the grisly tales of mistreatment of prisoners leave us cold now. WE HAVE HAD ENOUGH! Give up: scouts, sentries, and many others know how easy it is. Our group will help everyone so that they can live for our future. The Allies know about our movement. Give them this pass when you cross the enemy’s lines! It is your pass to life! Christian Soldiers Union.”

Unsurprisingly, Operation Cornflakes’ crude attempts at psychological warfare were not particularly effective, and if they had any demoralizing effect at all it was probably simply from causing a delay or destruction of civilian mail.

These kinds of PSYOP tactics didn’t end with WWII. They have, however, gotten more sophisticated. The sort of psychological campaigns that are used today in a world where asymmetrical warfare is the norm take a different approach, such as the case of this undercover operation that was used in the early stages of the war in Iraq.

-Susan

To borrow a phrase, “Markets in Everything”: Halo3 Coaching Edition

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You can actually pay someone for Halo 3 lessons. It’s like hiring a tennis pro to help you work on your swing, only you don’t have to go to the trouble of getting up off your couch.

The average market price seems to be around $35 hour, though if you want the best coaching, you’ll have to shell out $50 for a lesson. For the price-conscious Halo3 student, however, there are economy options. Such as hiring this enterprising 13 year old for the bargain rate of $10 an hour. (And for the status-conscious, you can even buy a year’s virtual friendship with a pro for only $35.)

While the websites are not “normal” professional-looking, they are probably well designed for the target market. They come complete with online payment, Halo Resumes, customer testimonials, and even little windows to click on to “Chat with a Customer Service Rep.”

Some of them seem to even be getting an education in supply and demand. Such as when there’s a shortage on a product, slide up the demand curve:

I’ve been doing lessons for Halo 2 and Halo 3 for nearly a year now and have nevered [sic] raised my prices before. However, I’ve gotten to the point where I have a constant backlog of lessons so I’ve decided to raise my prices.

Kids these days. Back in my day, there was no one you could go to for lessons on beating Bowser in Mario Bros. or shooting lessons for Duck Hunt. (Free tip: to improve your accuracy, put your gun so it actually touches the TV screen. Also, don’t shoot the dog.)

They even have helpful tactical jumping lessons. It’s like parkour for people without upper or lower body strength.

And while I recognize these 13 year olds could probably kick my butt at Halo, I do think I could be competitive with them in the Halo3 Services market. No, not as a Halo coach, no one would hire me for that. Instead, I’ll offer, for a small fee, the once in a lifetime opportunity to play Halo with a real live girl.

Judging from the Halo players I run into, the demand is certainly there. And it is most definitely an underserved market.

-Susan

p.s. Hey Michael, want to go into business with me? You can offer lessons in erudite trash talk, you’re the undisputed master of that.

Michelle Obama Doll Wears Designer Label Knock Offs

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Because clothes are ‘useful articles,’ strong copyright protections are not available to fashion designers. Essentially, so long as parts that are trademarked are not copied as well, cheap clothing retail stores can go on making knock offs of designer labels all they want. And by my reckoning, that’s as it should be — I don’t think the case can be made that we suffer from a shortage of designer label fashion lines, given how every celebrity and their dog have one, so there are no welfare gains to be had from allowing fashion to be copyrighted.

But over at Counterfeit Chic, there’s an interesting suggestion made that, even if you can’t infringe a copyright by making a knock off of a dress, making that same dress for a doll might be infringing.

MichelleObama_dolls_ChiTrib_10-14-09

These Michelle Obama dolls ‘action figures’ feature dress designs of some apparently well known labels:

And what of the designers whose dresses have made fashion history? Paradoxically, if Feinberg had reproduced the dresses themselves and sold them in a Brooklyn boutique, their original designers would have had little or no claim under U.S. law. However, the same may not be true of the 6-inch versions.

Let’s consider each dress individually. Apart from the purple Pinto, which is probably too simple to trigger any sort of protection (belt sold separately), the doll-maker may run a slight risk of playing (court)house with his creations. Either Donna Ricco herself or whoever created the black-and-white fabric pattern might have a copyright claim, depending on how closely Feinberg copied the print. And if either Narciso or Donna created a sketch of his or her respective dress before stitching it, the drawing (though not the dress) would be subject to copyright — making the doll theoretically an infringing derivative work.

As Counterfeit Chic points out, this raises another problem. An infringement claim requires proof of copying — but the copying here would almost certainly have been of Michelle Obama’s actual dresses, not the copyrightable sketches. Proof of copying can also be shown by demonstrating that the alleged infringer had access to the original work and substantial similarity, but would a copy of a non-copyrightable item that is itself a non-infringing depiction of a copyrightable work count as access?

-Susan

The United States Are An It: How Big Government Nationalized Grammar

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Via Language Log, here’s a neat article on how the U.S. went from a plural to a singular: Supreme Court Usage and the Making of an ‘Is’.

Immediately after the founding of the United States of America, it was standard practice to refer to the entity in the plural, as a grouping of states rather than a singular body. Then, by about the mid-1800’s, use of “is” or “are” became pretty much interchangeable, though the frequencies at which was more favored varied. You could even use both in the same breath if you wanted to, as displayed in an 1882 case: “[T]he doctrine [of sovereign immunity], if not absolutely limited to cases in which the United States are made defendants by name, is not permitted to interfere with the judicial enforcement of the established rights of plaintiffs when the United States is not a defendant or a necessary party to the suit.”

areis

Today, anyone over the age of four stating that “the United States are located in North America” would be looked at funny, or possibly suspected of taking that whole states rights thing a little too far. Contrary to folklore wisdom, it wasn’t the Civil War that effected the change, but it was rather the result of a gradual semantic shift.

Only in the 1900s did the plural usage fade entirely from Supreme Court opinions. This comports with a contemporaneous account from a commentator in the Yale Law Journal, who observed in 1900 that “the plural use of ‘United States’ is gradually passing, under stress of the ever-increasing sense of unity in the national life.”

“The United States are” has only been seen in a Supreme Court opinion on two occasions since 1901, the last occurrence being in 1935. Unsurprisingly, the sole judicial hold out for the plural form, Justice McReynolds, was one of the Four Horsemen that fought valiantly against the New Deal and the federal tyranny of the commerce clause.

-Susan

Can you reuse a stamp from a mailed letter that did not get postmarked?

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Sadly, no.

I was guessing that would be the answer, but I figured it was worth checking. For some reason, the stamps on the DadMail I receive seem to go unmarked by the post office an unusually high percentage of the time. I received a letter from him today with four forever stamps on it, all unmarked, which seemed like a waste. So I wondered… I don’t suppose I could scrape those off and slap them on another letter?

According to 18 U.S.C. § 1720, paragraph 3,

Whoever knowingly uses in payment of postage, any postage stamp, postal card, or stamped envelope, issued in pursuance of law, which has already been used for a like purpose—
Shall be fined under this title or imprisoned not more than one year, or both[.]

So it looks like the Post Office is way ahead of me on that one.

But now here’s another question. I am reasonably certain the letter my dad sent me was not nearly heavy enough to warrant four stamps. I’m pretty sure it could have gotten by on two. If I were to go to the trouble of weighing it and checking the requirements, and found two of them were in fact not needed, would it be a violation to use just those two? Tragically, I think even the unnecessary stamps are now forfeit, as “which has already been used for a like purpose” suggests yes, their use for the purpose of mailing — even if the use was not required — now makes them tainted.

And anyone else remember hearing about that old trick where you write the receiver’s address in the sender space, and the sender’s address in the receiver space, so that when you don’t attach any postage it gets “returned” to the intended recipient? I wouldn’t exactly recommend trying it, but it looks like that’s only punishable by a fine under 18 U.S.C. § 1725. Although I am sure there is a fraud statute lurking out there you could tag that under as well.

-Susan

I see your dissent, and raise you a re-dissent.

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I was trying in my last post to stick mostly to issues of remedy in the hypothetical world where a violation is assumed, because Establishment Clause jurisprudence ain’t my forte, but I’ll try and respond a little. (Except respond in that wishy-washy way where y’don’t actually cite many laws because y’don’t actually know that many…)

First off, hey, I am more than happy to abandon Lemon. To quote dear buddy Nino, “As to the Court’s invocation of the Lemon test: Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and [government] attorneys.” If the one thing to come out of Salazar is a final stake through the Lemon test’s heart, that wouldn’t be too shabby.

But Scalia lost me a bit during the oral arguments yesterday, with his apparent bafflement with the idea that a cross might somehow not represent everyone. If you want to test that theory, just imagine a national monument to veterans that was a Wiccan symbol — and watch the fur fly and howls of fury ring out.

A cross is Christian. I do feel there’s ample leeway for crosses under the First Amendment when, like Argonne, a cross is erected — specifically at the time it was created — as a deliberate memorial to war, but there is some serious retconning going on with Sunrise Rock. And this is where I really agree with Buono — it is not the cross per se that is so offensive, it is the strong arm tactics that prevent the display of any other religion. As for the MLK Jr.’s church example, that would not be at all problematic, because the history there makes it abundantly clear that the governmental intent would not be promotion of any particular religion. The same can just as adamantly not be said to be the case for Sunrise Rock, where legislative protection has never been prefaced as anything other than protection-of-a-cross-because-it’s-a-cross.

And I’m not really sure Kagan was right about that when she said during the oral arguments that the VFW was free to change the speech, but I can’t find the article I was reading yesterday that covered that in more detail, so maybe I’m the one mixed up. (And if she is right, the government made a serious error. What if the VFW turned it into “a monument for the dead killed by the traitorous U.S. government on 9/11”?)

What bothers me most about the whole deal is the blatant bad faith of the government in all of these instances. I don’t think it’s really arguable that:

1) The overwhelming majority of these cases involve the government defending Christian symbols and refusing to allow the display and placement of non-Christian symbols; and,

2) If the Sunrise Rock cross had not specifically been a “cross,” Congress would not have wasted so many man hours writing new laws to defend it.

The fact the government can do this over and over and over again and then still put on the innocent act and breathlessly proclaim, “Oh! But it’s not about Christianity! It’s just about the memorial and our heritage!” every time it gets litigated bothers the hell out of me. And the bad faith in Sunrise Rock is even more apparent — this whole issue started up because they wanted to avoid having to let other religions also be displayed in the park. “Bad faith” almost doesn’t go far enough in describing the government’s tactics — they aren’t being subtle about their promotion of Christianity and they don’t even care.

To summarize: The government cannot weasel its way into promoting a particular religion by abusing loopholes, engaging in legislative creativity, and bending over backwards to escape black letter restrictions that prohibit the substance of what they are doing.

(And to clarify that statement a bit — no, I do not believe there is any “conspiracy” or deliberate intent to do this. It’s just the result of a series of unconnected acts by a largely-Christian legislative branch which results in an emergent pattern of Christian favoritism. But that doesn’t make it okay.)

As for the standing, I’m completely with you, and I think I may have came across more strongly than I truly feel. (Although the “is standing really-truly jurisdictional-in-the-classical-sense, particularly when its prudential” line of thought is an awesome subargument all in its own I might address later…) Still, what would happen in a case where the government did blatantly establish a religion? But in such a way as to not directly infringe on anyone else’s rights to practice? The injury would resemble some version of “mental distress” or “offended sensibilities,” but I don’t think it should be dismissed solely on that ground. We proved from Roe v. Wade that we can invent new standing tests when faced with sui generis injuries that don’t quite pass the standard test, and there are already allowances on tax payer standing when it comes to religion. So I think a reasonable argument can be made to recognize a different set of injuries that can provide for standing in the Establishment Clause context. “I’m offended” is never sufficient, but something more along the lines of “I am severely offended, and the Constitution protects me from having my religious sensibilities trampled on by the government in narrow situations that involve the state promotion of religion.” Only written so it sounds prettier.

-Susan

Japanese Women May Gain The Right To Keep Their Names

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I was reading about the recent electoral victory of the Democratic Party of Japan and the increase in the number of women in the Diet, when I came across this startling fact.

Japan’s government plans to submit legislation as early as next year to allow married women to keep their maiden names, the Yomiuri newspaper reported, citing unidentified government officials.

The bill will enable married couples to use separate surnames and children will be able to choose the surname of either parent, the Yomiuri said.

The change will make it easier for women in the workplace as more married females take up employment[.]

I wouldn’t have guessed there’s a first world country around today where women literally do not have the option to keep their real name and also get married. After poking around some more, it appears that the law doesn’t actually mandate women change their name to their husband’s, but that the couple must both choose the same last name. So, 97% of the time, it’s the man’s name.

This issue has apparently been kicked around before. Although in 2002, 65% voted in favor of abolishing the prohibition,

[T]raditionalists have roared back, arguing that allowing two-name families will promote excessive individuality, encourage the complete dissolution of the family and even create misunderstandings at mailboxes and gravestones.

“I understand it’s inconvenient for working women to change their surnames mid-career, but we should continue the existing system to avoid confusion and to give a good example to children,” said Sanae Takaichi, an LDP lawmaker. “Dual surnames are not part of Japanese culture.”

Of course, although maintaining the right to choose your own name despite being married would be a nice step, gender equality in Japan faces many other roadblocks:

Japan ranked 91st out of 128 countries in the World Economic Forum’s annual ranking of gender-equal countries presented on Thursday, the lowest ranking among all high income countries except for South Korea and five Middle Eastern countries.

-Susan

Global Trivia Question of the Day

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Q: Under International Law 101, statehood is determined, in part, by the diplomatic recognition of other states. In most cases, there exists a well established global consensus on whether any particularly entity is or is not a state, but there are exceptions. What are the seven United Nations member states that are not recognized by at least one other U.N. member state?

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Does Scalia believe the world would be better off if he were a mathematician instead?

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I do love Scalia, but his thoughts on the wasted talents of brilliant legal minds strike me as uncharacteristically short sighted.

“I used to have just the opposite reaction,” Scalia said, according to the Law Blog account. “I used to be disappointed that so many of the best minds in the country were being devoted to this enterprise.

“I mean there’d be a … public defender from Podunk, you know, and this woman is really brilliant, you know. Why isn’t she out inventing the automobile or, you know, doing something productive for this society?

“I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table, and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.”

The first objection is the obvious — I remain extremely skeptical that “so many of the best minds in the country” are truly inefficiently allocated to the study of law. People who are involved in the legal field will, unquestionably, encounter many brilliant people who are also in the legal field — because that’s mostly who they meet. This doesn’t mean there are somehow more of them there. And even though lawyers are the most likely profession to become prominent via politics and to achieve elected office, well, I’m pretty sure Scalia isn’t accusing our politicians of being the best minds in the country.

Second, even if it were true, it’s not clear to me that it would be a waste, per se, to have your best minds working as lawyers. Inasmuch as “law” can be said to have a purpose, its purpose is to reduce society’s transaction costs. That may not in itself be producing new goods or products, but it is increasing societal wealth.

Lawyers aren’t parasites, they’re route finders; the legal profession provides a highly specialized service that directs you in how to go from legal condition A to legal condition B. Sure, you’d probably be able to figure it out for yourself, eventually — but it would take you eons longer than someone who’s already spent a big chunk of their life learning that sort of thing. So having brilliant people focused on figuring out the best ways to bring down the inherent costs of human interactions doesn’t strike me as a bad thing.

Third and finally, even if our best and brightest were overrepresented in the legal field, that doesn’t mean society would necessarily be better off if they were directed to a different field instead. Although there are plenty of exceptions, I’d say that, for the most part, the good lawyers I’ve met are good because their talents and interests make them uniquely situated for legal work. They are good at rhetoric, good at logic and obfuscation, good at writing, good at wading through abstract chains of ideas. If they couldn’t be lawyers, they might make for great English professors or diplomats, but I don’t exactly see them going out and inventing the automobile.

-Susan

The infallible dog is a creature of legal fiction.

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This article today at CNN reminded me of something I’ve been interested in for a while now — the reliability of sniffer dog use in criminal investigations and law enforcement.

There are two major uses of dogs in this context that are highly problematic: use of dogs for “scent lineups” to identify criminal suspects and use of narcotics detecting dogs. (In most other contexts, I’m a-okay pretty much across the board with dog tracking– I don’t have any problems with using dogs for detecting explosives or for border searches.) While drug scenting dogs are a much more complicated legal problem, relating to the constitutional requirement of probable cause for Fourth Amendment purposes, the use of dogs for scent lineups has a much greater empirical problem, and their use in the courtroom has not been methodologically sound [PDF].

The requirements for a sniffer dog to be certified are not particularly rigorous, and in Texas and Florida especially, it looks as if a lot of innocent people have been put behind bars as a result of unscrupulous practices by dog trainers. A major problem in the use of scent lineups is that, while dogs actually are pretty good at picking out the “correct” scent from a list of possibilities put before them, when provided with a scent line up with no correct matches, the dogs will all too often default to a “closest match” and produce a false positive.

For the use of narcotics dogs, the science isn’t much more comforting. Although you generally won’t get a false conviction because of the use of a drug sniffer dog (either the police find the drugs on you or they don’t), their use amounts to a real infringement on Fourth Amendment protections. Under United States v. Place, brief detention by law enforcement in a public area for the purpose of carrying out a “dog sniff” is not a search for Fourth Amendment purposes. In Illinois v. Caballes, Justice Souter dissented (from which the title of this post is also taken), noting that:

At the heart of both Place and the Court’s opinion today is the proposition that sniffs by a trained dog are sui generis because a reaction by the dog in going alert is a response to nothing but the presence of contraband. . . . Hence, the argument goes, because the sniff can only reveal the presence of items devoid of any legal use, the “sniff does not implicate legitimate privacy interests” and is not to be treated as a search. . . .

Pretty much every circuit — except possibly my home circuit, the 11th, which has not “squarely addressed” the question — treats it as probable cause to undergo a search when a sniffer dog gives a positive hit. The only evidentiary standards are that the handler must testify to the dog being “trained” and “reliable”. (The only exception to this rule that a not-particularly-thorough search turned up: United States v. Trayer, 898 F.2d 805, 808 (D.C. Cir. 1990)(dog giving positive hit alert at sleeper car on train is not in itself probable cause)).

And most worryingly, some circuits only look at the training of the dog, not the handler. This is pretty faulty reasoning, as the trainer is half the equation — they’re the ones who have to interpret what the dog is indicating. See United States v. Outlaw, 134 F.Supp.2d 701, 813 (5th Cir. 2003) (“an alert is simply an interpretation of a change in the dog’s behavior by a human handler”). In addition to bad trainers who aren’t used to the dogs and don’t know when they’re giving an alert, there’s also the possibility of very closely trained dog/handler combos being susceptible to the Clever Hans effect.

Dogs just aren’t perfect. For example, tired dogs do significantly worse than rested dogs — dogs can’t sweat so they have to pant to dissipate heat, and unfortunately you can’t exactly pant and sniff at the same time — so an overworked and overheated dog is going to produce less reliable results. However, even assuming all dogs are as infallible as Rin Tin Tin, a positive alert from a narcotics dog just doesn’t seem to meet the threshold for probable cause.

Using Bayes’ theorem, and granting dubiously high estimates of dog accuracy (98%) at detecting when drugs are present, and assuming .5% of the population possesses drugs on them at any given time, then then the odds of a dog alert correctly indicating the presence of drugs is only 1 in 5.

“If the dog sniffs 10,000 people, 50 (10,000 x .005) will possess drugs. Out of these, the dog will correctly alert to 49 (50 x .98). Of the remaining 9950 people that do not possess drugs, the dog will falsely alert to 2% of this group, resulting in 199 (9950 x .02) false detections.

Out of this population of 10,000, the dog has positively alerted to 248 people, 49 of which are correct detections and 199 are false alerts. Thus, the probability that an individual actually possesses cocaine based on this dog is 49 out of 248, a detection rate of less than 20%.” Robert Bird, An Examination of the Training and Reliability of the Narcotics Detection Dog, 85 Ky. L.J. 405 (1996).

That doesn’t sound like probable cause to me.

-Susan