pageok
pageok
pageok
Recent Computer Crime Legislation -- The Actual Text, So You Can Read It Yourself:
I wanted to blog a bit about some recent computer crime legislation that Congress passed, but I realized that my instinct was to summarize the bill in my own words. As we know from the ReadtheBill movement, that's just lazy: If you really care about democracy, you want to read the actual bill. So here's the actual language of the Section of the bill I wanted to point out:
  (a) In General- Section 1030 of title 18, United States Code, is amended-- (1) in subsection (a)(5)--(A) by striking subparagraph (B); and(B) in subparagraph (A)--(i) by striking '(A)(i) knowingly' and inserting '(A) knowingly';(ii) by redesignating clauses (ii) and (iii) as subparagraphs (B) and (C), respectively; and(iii) in subparagraph (C), as so redesignated--(I) by inserting 'and loss' after 'damage'; and(II) by striking '; and' and inserting a period;(2) in subsection (c)--(A) in paragraph (2)(A), by striking '(a)(5)(A)(iii),';(B) in paragraph (3)(B), by striking '(a)(5)(A)(iii),'; '(4)(A) except as provided in subparagraphs (E) and (F), a fine under this title, imprisonment for not more than 5 years, or both, in the case of-- '(i) an offense under subsection (a)(5)(B), which does not occur after a conviction for another offense under this section, if the offense caused (or, in the case of an attempted offense, would, if completed, have caused)-- '(I) loss to 1 or more persons during any 1-year period (and, for purposes of an investigation, prosecution, or other proceeding brought by the United States only, loss resulting from a related course of conduct affecting 1 or more other protected computers) aggregating at least $5,000 in value; '(II) the modification or impairment, or potential modification or impairment, of the medical examination, diagnosis, treatment, or care of 1 or more individuals;'(III) physical injury to any persons; '(IV) a threat to public health or safety;'(V) damage affecting a computer used by or for an entity of the United States Government in furtherance of the administration of justice, national defense, or national security; or '(VI) damage affecting 10 or more protected computers during any 1-year period; or '(ii) an attempt to commit an offense punishable under this subparagraph; '(B) except as provided in subparagraphs (E) and (F), a fine under this title, imprisonment for not more than 10 years, or both, in the case of--'(i) an offense under subsection (a)(5)(A), which does not occur after a conviction for another offense under this section, if the offense caused (or, in the case of an attempted offense, would, if completed, have caused) a harm provided in subclauses (I) through (VI) of subparagraph (A)(i); or '(ii) an attempt to commit an offense punishable under this subparagraph; '(C) except as provided in subparagraphs (E) and (F), a fine under this title, imprisonment for not more than 20 years, or both, in the case of-- '(i) an offense or an attempt to commit an offense under subparagraphs (A) or (B) of subsection (a)(5) that occurs after a conviction for another offense under this section; or '(ii) an attempt to commit an offense punishable under this subparagraph; '(D) a fine under this title, imprisonment for not more than 10 years, or both, in the case of-- '(i) an offense or an attempt to commit an offense under subsection (a)(5)(C) that occurs after a conviction for another offense under this section; or '(ii) an attempt to commit an offense punishable under this subparagraph; '(E) if the offender attempts to cause or knowingly or recklessly causes serious bodily injury from conduct in violation of subsection (a)(5)(A), a fine under this title, imprisonment for not more than 20 years, or both; '(F) if the offender attempts to cause or knowingly or recklessly causes death from conduct in violation of subsection (a)(5)(A), a fine under this title, imprisonment for any term of years or for life, or both; or '(G) a fine under this title, imprisonment for not more than 1 year, or both, for--'(i) any other offense under subsection (a)(5); or '(ii) an attempt to commit an offense punishable under this subparagraph.'; and (D) by striking paragraph (5); and (3) in subsection (g)-- (A) in the second sentence, by striking 'in clauses (i), (ii), (iii), (iv), or (v) of subsection (a)(5)(B)' and inserting 'in subclauses (I), (II), (III), (IV), or (V) of subsection (c)(4)(A)(i)'; and (B) in the third sentence, by striking 'subsection (a)(5)(B)(i)' and inserting 'subsection (c)(4)(A)(i)(I)'. (b) Conforming Changes- Section 2332b(g)(5)(B)(i) of title 18, United States Code, is amended by striking '1030(a)(5)(A)(i) resulting in damage as defined in 1030(a)(5)(B)(ii) through (v)' and inserting '1030(a)(5)(A) resulting in damage as defined in 1030(c)(4)(A)(i)(II) through (VI)'.
  Interesting, isn't it? I don't really have anything to say about it that isn't obvious from the text, but I thought you might want to read the text for yourself so you can understand what Congress did. It's always good to read the bill.
Blargh:
Orin is on a RAMPAGE!!!!!
9.23.2009 9:44pm
Blargh:
My favorite part: "(i) by striking '(A)(i) knowingly' and inserting '(A) knowingly'"
9.23.2009 9:46pm
PatHMV (mail) (www):
You're proving the point you're arguing against. I'd be happy to accept, in lieu of reading the bill, a requirement that the Congressmen read a copy of relevant portions of the US Code as it will read if the bill is adopted. Language like this is a great way to slip in all sorts of mischief, with most ordinary congressmen, and almost all voters, having no real idea what's going on.

And, as I said in an earlier comment, it's all the more reason to demand that Congress wait about a month before voting on most, if not all, bills, so that the public and the public's experts (think tanks, university faculty, bloggers, pundits, etc.) will have the same opportunity as the Congressmen and their staffs to try to decode what the bill will actually do (which is not at all obvious from the text of the bill).
9.23.2009 9:47pm
Bill Sommerfeld (www):
Perhaps if legislators actually had to read this, they'd make it readable.
9.23.2009 9:48pm
Mikhail Koulikov (mail):
Prof. Kerr,

A., the formatting (compared to the original) is REALLY not helping - and you really can do better than building your argument around layouts

...and

B., consider that before any senator or representative actually gets to voting on this thing, he or she will most likely have read - or at least have had access to - a) the committee report on the relevant bill, with a point-by-point explanation of each sub-section, and b), a memo from his or her chief-of-staff, explaining exactly what this bill means, what it will do, why it will matter, and what its effect on the senator/representative and his/her constituents will be.
9.23.2009 9:48pm
CliveStaples (mail):
If I was being paid to decide whether or not this bill was consistent with a particular set of political beliefs, I would go through this line by line and make sure that I knew exactly what it's talking about.

But maybe that's just because I feel that should earn my keep.
9.23.2009 9:52pm
PatHMV (mail) (www):
By the way, Orin, it seems rather disingenuous of you to strip all formatting from your quote. While far from crystal clear, it is far easier to follow what the bill does when you read the formatted version available at your link.

And to reiterate another point I made earlier, I'd be happy to enact a requirement that the members must only read the bills which are estimated by the CBO to have an economic impact of greater than, oh, $500 billion.
9.23.2009 9:53pm
Steve:
consider that before any senator or representative actually gets to voting on this thing, he or she will most likely have read - or at least have had access to - a) the committee report on the relevant bill, with a point-by-point explanation of each sub-section, and b), a memo from his or her chief-of-staff, explaining exactly what this bill means, what it will do, why it will matter, and what its effect on the senator/representative and his/her constituents will be.

Exactly!!!!!!!!!
9.23.2009 9:54pm
Bill Sommerfeld (www):
I'm reminded of the Obfuscated C contest.

Any programmer who wrote real code like Obfuscated C contest entries would be out of a job.

Any legislator who votes for legislation which resembles an obfuscated C contest entry should find a new line of work.
9.23.2009 9:54pm
OrinKerr:
By the way, Orin, it seems rather disingenuous of you to strip all formatting from your quote.

PatHMV, if you have lost your sense of humor, it is not my job to find it for you.
9.23.2009 9:55pm
PatHMV (mail) (www):
Mikhail Koulikov makes an excellent point. We're not talking an either-or dichotomy, either read the bill or read a summary. Nobody's arguing against summaries or providing contexts. If you have the summary, and excerpts of the relevant statutes being amended, then the bill text itself becomes much more comprehensible.
9.23.2009 9:55pm
jsmith (mail):
Moderately clever, but aside from anything else, there's no reason legislation has to be written this way. As I expect you're aware, bills in at least several states are effectively marked-up versions of the statutes. That approach lends itself to comprehension much more readily; Congress could adopt it.

But clarity in the legislative process doesn't seem to be the goal.
9.23.2009 9:56pm
Jon Rowe (mail) (www):
Richard Epstein had a brilliantly titled book that answers the point of what Oren is trying to convey: SIMPLE RULES FOR A COMPLEX SOCIETY.

Ignorance of the law is NO excuse. So Congress can pass a law full of convoluted crap like this and bind us? This is one reason why the "the judicial tyranny," right wing social con crowd really pisses me off. They can't see the forest for the trees.

It's legislatures stupid, who are the real tyrants. And the garbled excreta that Oren cited is exhibit A.
9.23.2009 9:58pm
PatHMV (mail) (www):
Oh, I'm sorry, Orin, I confess that I took your sarcasm in the concluding lines of this post as a method to reiterate your earlier serious arguments on this subject. My bad. Had you posted this tomorrow or a couple of days from now, then I probably would have thought it funny. Immediately following yet another tedious back-and-forth front page debate between you and another conspirator, with many lengthy comment sections debating the issue seriously, I really didn't see where you were just trying to jest.
9.23.2009 9:58pm
Melancton Smith:
Since the bill references computer crime legislation, here is some 6502 Assembly Language (ok, showing my age):


1D00 A5 09 LOG LDA M1
1D02 F0 02 BEQ ERROR
1D04 10 01 BPL CONT
1D06 00 ERROR BRK
*
1D07 20 1C 1F CONT JSR SWAP MOVE ARG TO EXP/MANT2
1D0A A5 04 LDA X2 HOLD EXPONENT
1D0C A0 80 LDY =$80
1D0E 84 04 STY X2 SET EXPONENT 2 TO 0 ($80)
1D10 49 80 EOR =$80 COMPLIMENT SIGN BIT OF ORIGINAL EXPONENT
1D12 85 0A STA M1+1 SET EXPONENT INTO MANTISSA 1 FOR FLOAT
1D14 A9 00 LDA =0
1D16 85 09 STA M1 CLEAR MSB OF MANTISSA 1
1D18 20 2C 1F JSR FLOAT CONVERT TO FLOATING POINT
1D1B A2 03 LDX =3 4 BYTE TRANSFERS
1D1D B5 04 SEXP1 LDA X2,X
1D1F 95 10 STA Z,X COPY MANTISSA TO Z
1D21 B5 08 LDA X1,X
1D23 95 18 STA SEXP,X SAVE EXPONENT IN SEXP
1D25 BD D1 1D LDA R22,X LOAD EXP/MANT1 WITH SQRT(2)
1D28 95 08 STA X1,X
1D2A CA DEX


Do you think we didn't go through that code line by line, byte by byte before implementing it?
9.23.2009 9:59pm
OrinKerr:
Summaries? You want people to read summaries? I am sickened by your laziness. Just read the text: It's right there. I assume everyone can understand that; it's just a basic amendment to the Computer Fraud and Abuse Act, which I assume you are all familiar with.
9.23.2009 9:59pm
Hrothgar (mail):
Mikhail, in theory what you said in B. makes sense, but a) unfortunately, I don't think most Congressman or Senators actually do this, b) a good concise explanation requires actual study and comprehension of the bill's language and intent, and c) if they had such documentation, why wouldn't they post this legislative analysis on their web sites to inform their constituents of their rationale for voting aye or nay.
Note that I also think I know what they don't post their rationale for anything, but that's a different discussion topic.
9.23.2009 9:59pm
yankee (mail):
the formatting (compared to the original) is REALLY not helping - and you really can do better than building your argument around layouts

I agree with this 100%. Orin's decision to remove the formatting and render the entire section as one paragraph makes the text vastly less readable. I have been a big fan of Orin's posts in this series but this formatting is at best very lazy and at worst actively misleading.

Even so, reading the formatted version provides no actual insight into what the bill does.
9.23.2009 9:59pm
DiversityHire (mail):
Looks like a purposely poorly-formatted git or darcs patchset. What gets read aren't the patch sets but the patched sources—there are formal theories and lots of nice tools to turn the gobbledygook of patches into coherent source, show the differences between revisions, including responsibility for each alteration, deletion, or modification. That the entirety of written law isn't under even the simplest of version control systems is unfortunate.
9.23.2009 10:00pm
delurking (mail):
I have to agree with PatHMV that your argument does not support your position. All that needs to be read is the law as amended.

As an aside, how did it come to pass that legislation is written this way. Why not something much simpler, like simply saying "Paragraph X is replaced with: YYYYYYY", where YYYYYYY is an entire paragraph, even though some of the sentences will be rewritten. Why do the writers insist on not rewriting a single word that is already in the text of a statute when modifying a statute?
9.23.2009 10:01pm
OrinKerr:
To those who are flummoxed by formatting in their effort to understand the United States Code, I invite you to read a perfectly formatted version (scroll down to Section 204) and to then tell me, line by line, in plain English, what this section does. I look forward to your explanation, which I trust you will provide as soon as you see the formatted version.
9.23.2009 10:04pm
einhverfr (mail) (www):
And opening up the relevant section of the US Code and parsing it in line, comparing it line by line to the original still takes all of 5-10 minutes. Comprehending it might take some downtime too, as well as discussion with aids, but really, it isn't rocket science.
9.23.2009 10:05pm
PatHMV (mail) (www):
Orin, you're sounding like President Obama, arguing against only the most absurd and extreme voices opposing him rather than actually engaging the issues and serious criticism. It's your blog, so you're welcome to do as you please, but it sure is making it hard for me to take any of your arguments seriously.
9.23.2009 10:05pm
einhverfr (mail) (www):
My point is that all you need to do to be qualified to be a Congressman is make a commitment that if elected one will commit oneself to the study of the laws. However I find it amusing that I apparently have less trouble reading this act than Orin Kerr, who is a law professor ;-)
9.23.2009 10:06pm
yankee (mail):
Looks like I cross-posted against Orin's comment here. If this was just supposed to be funny, I retract my complaint.
9.23.2009 10:06pm
Bill Sommerfeld (www):
another critical part of software change management is detection of overlapping/conflicting patches. which require manual resolution in many cases.

if two laws applying this sort of low-level edit to overlapping sections of the US code are passed, how do you determine which set of edits are applied first? I'm sure a moderately clever hacker could come up with law changes which result in completely different results when you apply patch A and then patch B, vs applying patch B, then patch A. Especially since the patches are written in the full generality of English.

I'd like to thank Orin for shining a flashlight onto this nest of cockroaches. It's worse than I thought.
9.23.2009 10:07pm
Grant Gould (mail):
As yet another programmer type here -- turn on context on that diff!

If the legislators work with diffs in that form, rather than via sensible automated tools, they are idiots. If they have sensible tools, provide the tools or at least the diff as viewed with the tools.
9.23.2009 10:07pm
spiritofnine (mail) (www):
If I have to read the bill, why do I need a Congressman? It's what I vote them into office for. Read, understand, think and pass reasonable legislation. If it's up to me, why don't I also draw the same salary and benefits?
9.23.2009 10:08pm
einhverfr (mail) (www):
OrinKerr:

What I would do but it doesn't come across well here, is to print out two copies of 18 USC 1030 and then create a diff file... If you would like I would be happy to do that.

Actually diff-format laws could actually be much more readable than this garbage, but really it doesn't take that much effort to read.
9.23.2009 10:14pm
The River Temoc (mail):
Moderately clever, but aside from anything else, there's no reason legislation has to be written this way.

So what are you supposed to do about all the conforming changes and other housekeeping matters necessary to ensure that the U.S. code isn't entirely self-contradictory?
9.23.2009 10:16pm
Dan Bongard:
If you're trying to make a point that it is hard to figure out what a bill does without reading the text, I have to ask you -- how were you planning to understand what the bill did WITHOUT reading it?

Obviously somebody has to read the damned thing. So find out who that guy is and make him the Congressman, because he's the one doing the Congressman's job.
9.23.2009 10:17pm
Frozen:
The mind froze by the (B)

No drugs can help anyone through the tortue of reading such stuff.

Some might prefer a root-canal precedue to reading such stuff
9.23.2009 10:17pm
John Thacker (mail):
PatHMV, if you have lost your sense of humor, it is not my job to find it for you.


Ah, silly me Orin, I thought you were attempting to make a serious point with these posts. It turns out that this entire series of posts has been a joke.

As another person who works in software engineering, I'm used to going through line-by-line of code that looks incomprehensible to other people. That's my job. Formatting and proper tools to cross reference makes sense, though.

You even eliminated the title of the section, which is given in the actual bill. Reading the whole bill would have shown the Title and Section names, which would add clarity.

That's why reading the whole bill and what's being amended is important. Thanks Orin, for showing why only seeing a small subset of the legislation being discussed is useless.
9.23.2009 10:17pm
Uriel (mail):
Umm.. Microsoft Word has this this editing thing called redline/strikethrough or strikeout or something. Anyway, it's really easy to use and to read edits.
9.23.2009 10:18pm
George Weiss (mail) (www):
the thing is-state legislatures usually do this sort of thing by having the text of the code, lines striking out, and inserts highlighted.

this doesn't require a summery yet still lets you read the bill in a way that makes sense
9.23.2009 10:21pm
jsmith (mail):
So what are you supposed to do about all the conforming changes and other housekeeping matters necessary to ensure that the U.S. code isn't entirely self-contradictory?

Again, some states can manage to deal with it. I would imagine the US Congress could do likewise.
9.23.2009 10:22pm
Ed Unneland (mail):
How many petitioners on the read the bill bandwagon will put themselves through that? By the way, blue books will be passed around in an hour ...

In the other post, the comment positing the model of Senators and Representatives running businesses is an interesting one, where they manage teams that see to it that the legislative interests of the Senator or Representative are advanced. It also dovetails with how a person sues "The Office of Representative Jane Doe" in actions under the Congressional Accountability Act.
9.23.2009 10:22pm
PatHMV (mail) (www):
Yeah, Orin, that's rather tough to do. Even after you look up the relevant statutes (which the website to which you link helpfully provides), it's very hard to figure out. Even the existing statute is hard to figure out. But you, me, and all of our clients are held to be aware of what is allowed and what is prohibited by that statute. Perhaps if Congressmen were required to read the bills, they would realize that no normal person can read that statute and determine whether any given course of conduct they are considering violates the law or not.
9.23.2009 10:22pm
Steve:
As another person who works in software engineering, I'm used to going through line-by-line of code that looks incomprehensible to other people. That's my job.

Yes, that's your job. It's also the job of the legislative analysts on each legislator's staff. Does the CEO of your firm read over your code line-by-line before it gets implemented? (Maybe it depends on what your company does.)

I've heard of people who want to be ruled by philosopher-kings. But I never knew there were so many people who dreamed of government by technical writers.
9.23.2009 10:23pm
Cornet of Horse:
I thought computer code too. Maybe we need to elect some good code-writers to Congress to get this sort of thing cleaned up.

Jon Rowe,

""the judicial tyranny," right wing social con crowd really pisses me off. They can't see the forest for the trees.

It's legislatures stupid, who are the real tyrants. And the garbled excreta that Oren cited is exhibit A."

The two aren't mutually exclusive, though I would argue that we've reached tyranny in neither case, just that we seem inclined to blithely dismiss the safeguards we have against future tyranny.
9.23.2009 10:23pm
Jim Dempsey (mail):
FWIW, the Rules of the House already require that every committee report on a bill include a black and white "redline" of the provisions being amended by the bill. This is intended to address the problem posed unintelligible "cut and bite" amendments of the type exemplified by the computer crime statute Orin quotes. The rule is circumvented by amendments offered on the floor, which can consist of entire substitutes. Real Congressional trivia: the "redline" is known as the Ramseyer, named after a representative from Iowa.
9.23.2009 10:24pm
einhverfr (mail) (www):
Ok, you want a quick overview of what this does, on a first reading:

1) It reorganizes portions of the crime definitions for greater readability.

2) It further clarifies damage by rephrasing "damage and loss" in at one case.

Now, as to the part that has me confused is this:

'(4)(A) except as provided in subparagraphs (E) and (F), a fine under this title, imprisonment for not more than 5 years, or both, in the case of--

'(i) an offense under subsection (a)(5)(B), which does not occur after a conviction for another offense under this section, if the offense caused (or, in the case of an attempted offense, would, if completed, have caused)--

'(I) loss to 1 or more persons during any 1-year period (and, for purposes of an investigation, prosecution, or other proceeding brought by the United States only, loss resulting from a related course of conduct affecting 1 or more other protected computers) aggregating at least $5,000 in value;

'(II) the modification or impairment, or potential modification or impairment, of the medical examination, diagnosis, treatment, or care of 1 or more individuals;

'(III) physical injury to any person;

'(IV) a threat to public health or safety;

'(V) damage affecting a computer used by or for an entity of the United States Government in furtherance of the administration of justice, national defense, or national security; or

'(VI) damage affecting 10 or more protected computers during any 1-year period; or

'(ii) an attempt to commit an offense punishable under this subparagraph;

'(B) except as provided in subparagraphs (E) and (F), a fine under this title, imprisonment for not more than 10 years, or both, in the case of--

'(i) an offense under subsection (a)(5)(A), which does not occur after a conviction for another offense under this section, if the offense caused (or, in the case of an attempted offense, would, if completed, have caused) a harm provided in subclauses (I) through (VI) of subparagraph (A)(i); or

'(ii) an attempt to commit an offense punishable under this subparagraph;

'(C) except as provided in subparagraphs (E) and (F), a fine under this title, imprisonment for not more than 20 years, or both, in the case of--

'(i) an offense or an attempt to commit an offense under subparagraphs (A) or (B) of subsection (a)(5) that occurs after a conviction for another offense under this section; or

'(ii) an attempt to commit an offense punishable under this subparagraph;

'(D) a fine under this title, imprisonment for not more than 10 years, or both, in the case of--

'(i) an offense or an attempt to commit an offense under subsection (a)(5)(C) that occurs after a conviction for another offense under this section; or

'(ii) an attempt to commit an offense punishable under this subparagraph;

'(E) if the offender attempts to cause or knowingly or recklessly causes serious bodily injury from conduct in violation of subsection (a)(5)(A), a fine under this title, imprisonment for not more than 20 years, or both;

'(F) if the offender attempts to cause or knowingly or recklessly causes death from conduct in violation of subsection (a)(5)(A), a fine under this title, imprisonment for any term of years or for life, or both; or

'(G) a fine under this title, imprisonment for not more than 1 year, or both, for--

'(i) any other offense under subsection (a)(5); or

'(ii) an attempt to commit an offense punishable under this subparagraph.'; and


Arguably this is the clearest-written part of the bill. And while comparing this to the original is quite interesting-- it shows that there would be many more conditions spelled out in terms of what is a felony vs a misdemeanor offence, it isn't clear to me that this would be readily digestible. However at least reading it, I could be prepared to talk about it with staffers, other congressmen, etc.

On the whole, the legislation looks fine to me.
9.23.2009 10:26pm
second history:
Bleg:

I am trying to recall a website that posts congressional legislation and allows users to comment on it section by section. Any ideas?
9.23.2009 10:28pm
John Thacker (mail):
So striking subparagraph B really dramatically affects the original law by eliminating the need to show that the particular unauthorized access caused specific harm. This is obvious from the GovTrack link, with embedded hyperlinks to the sections of the US Code being amended.

After subparagraph B is struck, the next part is just housekeeping that results because there were only two subparagraphs on that level to start with.

I for one am really glad that the GovTrack version appears on the web. I would really hate to just hear politicians and their staffers' summaries of the bill.

Going through the text, I was really confused as to what was going on with offenses occuring under subsection (a)(5)(C) (it's the new (a)(5)(A)(iii), you know) without a prior conviction for the same class of crimes, since all references to (a)(5)(A)(iii) were stricken instead of being replaced with (a)(5)(C). But then I got down to the new (c)(4)(G)(i), and the bit about "any other offense under subsection (a)(5);" made it all clear.
9.23.2009 10:29pm
John Thacker (mail):
Orin's post is a good reminder of why a textdump, or unsearchable image files would be a very poor way for the government to handle transparency with this sort of thing. Probably what they'd do, though. What the private GovTrack does is great, though. Very easy to use, with cross-references.
9.23.2009 10:31pm
one of many:
I dunno OK, doesn't seem that hard to read to me. Without getting into the merits I'm trying to figure out how a hacker could trigger the "knowingly" part of subsection(c) paragraph (4)(F). Outside of movies this is just too unreliable for anyone to seriously attempt it, we aren't that heavily automated yet. Maybe some of the new fly-by-wire aircraft... .
9.23.2009 10:33pm
OrinKerr:
einhverfr,

I appreciate the effort, but that is not correct.
9.23.2009 10:33pm
lucia (mail) (www):
Orin,
I read the section 204, and I've decided that I endorse (a)(1)(iii)(II). (That is, 'by striking '; and' and inserting a period;')
I also believe I understand what this does without need for any summary on your part.

Still, I hope einhverfr will open up the relevant section of the US code, spend 5-10 minutes reading it and explaining the whole thing just to show you how quickly and easily it can be done. (Plus, if s/he does it, then we'll all have a summary!)
9.23.2009 10:33pm
lucia (mail) (www):
Dang! I reload and einhverfr gave it a whirl!
9.23.2009 10:34pm
anon252 (mail):
Perhaps if Congressmen were required to read the bills, they would realize that no normal person can read that statute and determine whether any given course of conduct they are considering violates the law or not.
Ditto.
9.23.2009 10:35pm
Googler:
Nobody's arguing against summaries or providing contexts. If you have the summary, and excerpts of the relevant statutes being amended, then the bill text itself becomes much more comprehensible.

Summaries? We don't need no stinkin' summaries. The movement is Read the Bill--not Read the Summary!
9.23.2009 10:39pm
24AheadDotCom (mail) (www):
Why is this site spending so much time on one topic when there are many more important things about?

As for the assembly example above, at the time that was written such programs were very small; that language is nowadays only used sparingly for small parts of programs. No one would, for instance, write MS Word in asm unless they had a few decades.

What's done now is such programs are written in a "higher-level language" which in many cases is converted into language like that above (which represents actual instructions to the CPU).
9.23.2009 10:39pm
einhverfr (mail) (www):
OrinKerr,
But at least I am more prepared to talk about the bill. ;-)
9.23.2009 10:40pm
einhverfr (mail) (www):
BTW, it looks like most of the elements of (a)(5)(B) got moved into (c)(4). This seems to be a rather significant change.
9.23.2009 10:42pm
Today's Tom Sawyer:
It is a sad sad day when legislators show less dedication to their job than law students do. We manage to slog through the 40 pages assigned for each class that seem as incomprehensible, yet we do it and pay for the privilege.
9.23.2009 10:43pm
Chuck the guest (mail):
Well, Dempsey beat me to it. But, the Ramseyer gives context.

Here's a description of it. See URL below.
=============================

"Ramseyer Rule" Print. Rule XIII, clause 3(e)
When a committee reports a bill or joint resolution that would repeal or change all or part of some existing law, the accompanying committee report shall reprint the portion of existing law that would be repealed and show, by using different typographical devices, how existing law would be amended to read if the measure were to be enacted. However, if the committee reports the measure with one or more amendments, this requirement applies to the committee amendment(s), not to the measure as introduced.

This requirement is popularly known as the "Ramseyer Rule" in honor of Rep. Ramseyer of Iowa, who served in the House during 1915-1933. The comparative print sometimes is known simply as "the Ramseyer."


See URL
9.23.2009 10:46pm
:) (mail):
I've always looked to Orin as a fantastic blogger, but lately he is becoming my favorite blogger. Keep it up.
9.23.2009 10:57pm
Kevin Jackson (mail):
I realize that this is an attempt at humour. But if you'll allow me to judge this seriously:

1) This bill is not that long. If I had staffers to put together this, plus the original bill with amendments included (and old text struck out), plus whatever summaries, there is no reason for this to take an excessive amount of time. If the amendments are reasonable, this is something that could be read during a meal, or while being driven to the airport, or something similar.

2) Much of the difficulty for the layman reading this bill is in the unfamiliar wording, and the lengthy sentences describing condition, exceptions, etc. But anyone who reads this language daily is going to get used to that sort of thing, and reading comprehension will increase rapidly. And considering that this sort of language is used at all levels of government, I don't think it's unreasonable to expect the majority of legislators to be familiar with it when they reach Congress.

3) Even if these points are invalid, and the reading is going to be a hard slog, does that change anything? Is "it's too hard" really an excuse you want to accept from your elected representative? Isn't there some legislation that you wish someone had read a bit more carefully before it was passed?
9.23.2009 10:59pm
AST (mail):
You've hit on one of my pet peeves as a lawyer. I'm retired now, but it used to drive me nuts trying to read legislation that constantly referred to other sections of the code that I then had to track down. I was even more annoyed whenever I tried to read federal legislation that basically assigned filling into the blanks to some agency. If I were a Justice I'd vote to throw out a lot of the statutes I've read for vagueness. The one that I remember the most is the definition of "wilderness" in the Wilderness Act, which is about as subjective and ambiguous as anything I've ever tried to figure out.
9.23.2009 11:07pm
Hunter:
You know what I find amusing. Orin is obliterating his point. There are people here, including( I assume) Orin, who are willing to dissect and parse this bill word for word. None of whom( again I assume) are elected to or paid to. With each post Orin makes, the arguments against a Congressman doing a better job at reading these bills are shown to be unable to really put up much of a fight.
9.23.2009 11:07pm
U. Va. Grad:
Why is this site spending so much time on one topic when there are many more important things about?

Because it's their site, Lonewacko, and they can do whatever the heck they want with it.

(Perhaps Orin will continue his debates with co-conspirators by arguing the merits of the Hand of God Goal with David Post?)
9.23.2009 11:08pm
Off Kilter (mail):
IANAL, and sadly right about now I'm feeling mighty proud of that fact...

Let's see: we're to agree that Congressmen clearly should not be required to read and understand the laws they pass since even thoughtful lawyers don't get it correctly, according to Orin Kerr, who asserts this of einhverfr's effort. But we should accept as legitimate sending people to prison for years for failing to abide by these laws...

It seems to me that Orin's post is too clever by half. If people are to take seriously the notion that ignorance of the law is no excuse, then Congressmen have no excuse for being ignorant of the laws they pass or oppose.
9.23.2009 11:12pm
BGates:
Steve, what is it Congressmen do?

Orin, how far into the semester do you laugh at your students for trying to read and understand the law? Is it soon enough that they can get their money back?
9.23.2009 11:15pm
Steve:
There are people here, including( I assume) Orin, who are willing to dissect and parse this bill word for word. None of whom( again I assume) are elected to or paid to.

Many people here have the relevant expertise, just as every legislator has several people on staff with the relevant expertise.

If you think all legislators should be lawyers, that's fine. Many voters prefer to elect representatives who share their position on the issues, irrespective of whether they have the technical ability to parse a bill, and that's their right as well.
9.23.2009 11:15pm
Bill Sommerfeld (www):
folks interested in reviewing actual proposals instead of strawmen might want to look at H.Res 554:

http://www.opencongress.org/bill/111-hr554/show
9.23.2009 11:25pm
George Weiss (mail) (www):
i still think that a version of the us code with portions stuck out with a line through and portions inserted w/ highlight could do fine and not even be a summery and be understood by a layman w/ the relevant contextual parts of the code.

it also is further argument for the limiting of bills to one subject
9.23.2009 11:25pm
Nebuchadnezzar (mail):
I must join the pile-on Orin and say that in your effort to win the battle, you just lost the war. I think your best defense was your earlier claim that you just meant the post as a joke, though you seem to be flip-flopping on that point.
9.23.2009 11:26pm
Visitor Again:
Well are you going to require the President of the United States of America to read every word of every bill he signs into law rather than assigning the job of review and analysis to his underlings?

After all, the President has to decide whether to veto the bill or approve it, and his signature is necessary before the bill becomes law. That's one of the vaunted checks and balances the Constitution sets out. Only the President is elected; all his underlings except the Vice-President are not, and the read every word people ought to be insisting that he is the only one who can fulfill this constitutionally assigned role of approving legislation and must therefore read every word.
9.23.2009 11:31pm
Steve:
It seems like the same people who criticize Orin for the use of strawman arguments are now acting as if his argument is that it is impossible to understand a bill. Kind of ironic.
9.23.2009 11:33pm
Visitor Again:
And none of this cert pool stuff. Justices of the Supreme Court should have to read every word of every cert paper before ruling; otherwise we get certiorari decisions made by clerks just out of law school who have not been appointed U.S. Supreme Court Justice.
9.23.2009 11:34pm
OrinKerr:
Steve,

It is indeed ironic. As you realize, my view is that it is incredibly important for legislators to understand what they pass, but that having individual legislators sit down with the bill text is a terrible way to do that. In other words, I agree with the goal, just not the means. How that turned into me disagreeing with the goal is a mystery, but such is the Internets.
9.23.2009 11:39pm
Random Commenter:
This is pretty inane. If you take the time to look at what the "read the bill" people are really advocating, it's that bills be made publicly available far enough in advance of votes that legislators and the public can read and provide feedback on them. Having pet lawyers to program you with the talking points about a bill is fine if you're a congressman in the majority party, but if you're in the opposition party, or in a swing district, you may have no time at all to digest or cause to be digested what is actually in these big, eventful bills.
9.23.2009 11:43pm
Steve:
I think those are mostly separate issues, although some of them are quite important.
9.23.2009 11:44pm
asmotao:
The similarites between reading legislation like this and source code got me going.. So after 10 minutes of with perl and awk I have a little script that parses the original text and makes changes based on the formatting keywords of the new legislation. Its probably not 100% for all cases - but it was literally 10 minutes of effort.

By doing it this way certain flaws are exposed. Such as an error with the direction stated in 3A, specifically:


"in the second sentence, by striking 'in clauses (i), (ii), (iii), (iv), or (v) of subsection (a)(5)(B)' and inserting 'in subclauses (I), (II), (III), (IV), or (V) of subsection (c)(4)(A)(i)';"



The problem is that the specific words "in clauses (i), (ii), (iii), (iv), or (v) of subsection (a)(5)(B)" dont actually appear in the existing text. The current text reads


"in clause (i), (ii), (iii), (iv), or (v) of subsection (a)(5)(B)"



Note the difference: clauses vs. clause

Pedantic I know, but it is what it is - computers like precision (and I would so love it if the law embraced that principal too, but thats another topic). So it is impossible to perform the actions stated in the bill as written.

Again - 10 minutes with perl and awk (and I'm a network guy not a programmer). With the billions spent on gubment for all sorts of other rat hole projects you dont think something better could have been made.

As for the impacts of the changes - its is, IMNSHO, another worthless attempt to define and increase the punishments for "hacking" - specifically when the offense is related to a government owned/maintained/influenced computer system or any system that stores financial data.

There is also the idiotic logic of (a)(6) which doesn't define who is being defrauded. So one can only be punished under this if they attempt to sell (or similar) passwords that they know wont work. *sigh*
9.23.2009 11:50pm
Highmiler:
It must be a thrill for law professors to make fun of everyone else, but at least they should understand the people they're making fun of. The goal of the read the bill "movement" is not to actually force congressmen to read the bills they vote on. Demanding that is a means to a rather more sophisticated end: embarrassing Congress into writing bills that could be read by normal people, so that normal people who don't have legislative staffs or or access to all the latest law reviews can know how the government demands that they arrange their lives (and perhaps so it becomes a bit more difficult to hide the more egregious special interest gifts. Sometimes even law professors don't summarize those for the rest of us until it's too late.)
But I'm sure Professor Kerr's joke at the expense of the rubes will get him a few chest bumps and huzzahs in the faculty lounge.
9.23.2009 11:51pm
David M. Nieporent (www):
Yes, that's your job. It's also the job of the legislative analysts on each legislator's staff. Does the CEO of your firm read over your code line-by-line before it gets implemented? (Maybe it depends on what your company does.)
A congressman is not a CEO. A congressman is a programmer. He's not the boss; he's the employee.
9.23.2009 11:52pm
Nebuchadnezzar (mail):
Orin, it does hurt to lose the war, but those are the Internets. Hope the battle was worth it.
9.23.2009 11:54pm
The Unbeliever:
(b) Conforming Changes- Section 2332b(g)(5)(B)(i) of title 18, United States Code, is amended by striking '1030(a)(5)(A)(i) resulting in damage as defined in 1030(a)(5)(B)(ii) through (v)' and inserting '1030(a)(5)(A) resulting in damage as defined in 1030(c)(4)(A)(i)(II) through (VI)'

(1) How many Congresscritters could look up the relevant section unassisted?

(2) When writing those much-trusted summaries, how many Congressional aides actually summarized this specific change for their boss, instead of wrapping the whole section up into two bullet points like einhverfr did above?

(3) What are the odds said aides actually looked up all three referenced sections in order to understand what they referred to?

Tangental argumentative point: The fact that we have a regulation buried so deep as to require the designation "1030(c)(4)(A)(i)(II)" pretty much means we are no longer living in a transparent, anyone-can-understand-the-law society.
9.23.2009 11:55pm
Jonathan H. Adler (mail) (www):
Orin --

Is it sufficient for an attorney of record to simply "understand" a legal filing before signing and submitting it, or should he/she actually have read it too? If we expect them to have read any document that sign and submit, why would we not want the legislator, who is the only person authorized to vote to enact legislation, not to understand and read it too. As far as I'm concerned, one can't really understand legislation at the level of detail I would expect from a legislator without having read it. Even if reading legislation like what you posted above is not sufficient to confer understanding, it is necessary.

In my experience, those who only get "summaries" of these sorts of bills don't really understand them. Indeed, I've testified before Congress on legislation that many committee members had not read -- although they had seen summaries -- and it was clear that they did not understand the bill because they had not considered what the written language actually did, as opposed to what someone hoped or wanted it to do.

JHA
9.23.2009 11:57pm
OrinKerr:
Highmiler writes:
The goal of the read the bill "movement" is not to actually force congressmen to read the bills they vote on. Demanding that is a means to a rather more sophisticated end: embarrassing Congress into writing bills that could be read by normal people, so that normal people who don't have legislative staffs or or access to all the latest law reviews can know how the government demands that they arrange their lives (and perhaps so it becomes a bit more difficult to hide the more egregious special interest gifts. Sometimes even law professors don't summarize those for the rest of us until it's too late.)
I like that goal. In fact, it's one of the major reasons I spend hours a day blogging: I think it's really valuable to make law accessible to nonlawyers and nonexperts. (They don't respect it very much in the faculty lounge, but that's the way it goes.)

My question is, how is having legislators read the bills supposed to do that? I don't see how the one leads to the other.
9.24.2009 12:08am
OrinKerr:
Orin, it does hurt to lose the war, but those are the Internets. Hope the battle was worth it.

What war did I lose, just to help me remember? I mean that seriously: I can't figure out what position you think I'm taking that "lost."
9.24.2009 12:10am
Fat Man (mail):
The bill could be presented in a readable format where deleted text from USC, new text, and existing text are printed in different fonts. Lawyers often prepare contract drafts in that way. Indeed, Microsoft Word will do it for you (Tools: Track Changes). Congress has no excuses, and there is no reason why Kerr needs to alibi for them.
9.24.2009 12:14am
Vermando (mail) (www):
I must be the only one around here who found this post effective. Professor Kerr is arguing against people trying to get congressmen to read every bill. I think he effectively shows that that's inane. Answering that they could do something else to be informed - have a staffer read it and summarize it, read the committee report, etc - shows, to me, that Professor Kerr was right. What don't I get?
9.24.2009 12:20am
The Unbeliever:
Indeed, Microsoft Word will do it for you (Tools: Track Changes). Congress has no excuses, and there is no reason why Kerr needs to alibi for them.
Are we really so lazy as to trust our democracy to word processor tricks?

(And how long until the Microsoft conspiracy theories crop up?)
9.24.2009 12:23am
Nebuchadnezzar (mail):
What war did I lose, just to help me remember? I mean that seriously: I can't figure out what position you think I'm taking that "lost."

Orin, I have very little doubt that you've gotten the point and your future posts on this subject will reflect it.
9.24.2009 12:24am
Fat Man (mail):
Further, if making congress critters read the bills and understand them slows the Federal government down to a crawl, that is, in my humble opinion, a good thing.
9.24.2009 12:26am
Steve:
A congressman is not a CEO. A congressman is a programmer. He's not the boss; he's the employee.

A congressman certainly is the CEO of his legislative team. I gather you mean he's the employee in the snarky "you work for us" sense, but that's not a very effective argument. You might hire your congressman primarily for his skill in legislative draftsmanship, but I doubt many other people do.

Prof. Adler's analogy to an attorney reading the briefs he signs is similarly weak. The attorney of record has the specialized expertise to understand exactly what's in the brief.
9.24.2009 12:34am
Guest12345:
It's easy to be dismissive and sarcastic towards ideas that fly in the face of greedy Renfieldism to our elected masters. But personally, I used to figure that the whole process of crafting legislation would familiarize congressmen with the content of the bills they vote on. But then we started getting thousand page bills that had to be voted on right away. Waxman-Markey came up for vote without anyone actually having a copy of the bill in hand or even knowing where to get a copy of the bill. That was a 1200 page bill with 300 pages of piecemeal amending illustrated by Orin's post, added at 3:00 AM of the day that the vote was taking place. When someone was finally able to locate the final version of the bill it turns out to only be available on a democrat file server. Yeah, I'm sure that all the representatives' staffers were able to assimilate and summarize by the time they went to the floor for the vote. Not. And of course the final copy contained scattered place holders. How is it even possible that our congressmen are voting on unfinished legislation? I'm awaiting with great anticipation our courts giving us the proper interpretation of the "placeholder for carbon credit allocation system."

And don't forget Chris Dodd: "Let's cancel those AIG retention bonuses! How dare those bastards think they should get more than $1/year salary! What!? The Recovery Act specifically allows the bonuses? Who the hell added that? Me? Really? No way! Couldn't have been me. It was? Really? OMG!!!!"

After those travesties, it's clear that the only way for our government to have even a bit of legitimacy is for more stringency and sunlight on the whole process. This is why I think that all legislation brought for a vote needs to be in a final form and in the hands of the library of congress before it can be voted on. And as long as the alternative is "Let's vote on this. Once the body has voted, me and my golf buddies from Magic Greenhouse Power Corp. will go finish up the drafting." Then yes, make them read it aloud.
9.24.2009 12:35am
SkarpHedin (mail):
And isn't requiring legislators to "read the bill" in tension with "courts shouldn't rely on legislative history when interpreting statutes"?

After all, it is the courts, not the legislature, that actually holds us citizens to account when we violate the laws whose meaning we are presumed to understand. And if, in doing so, the courts are not to look at why legislators passed a bill, but only at what its plain text means, then why should we care whether any given legislator read the bill or understood it?

The "Read the Bill" movement is premised on the idea that a legislator must vote on each bill based on a full understanding of what it means, and based on a conviction that what it means is good or bad policy. But the courts don't always hew to this view; the legistor's understanding could be wrong (the bill might objectively do "x" while the legislator believes it does "y"), and, consequently, so could the legislator's conviction-based vote. And 435 legislators could believe the bill means 435 different things. These are precisely the sorts of reasons that certain judges disdain resort to legislative history.
9.24.2009 12:36am
PatHMV (mail) (www):
Vermando, what you and Orin don't address is the argument that the bills SHOULD be comprehensible, and if Congressmen were required to read them, they would become more comprehensible to the average person. Yes, if you accept that federal legislation is and will always be almost incomprehensible to the average lawyer, let alone the average citizen, then there's not much point. But if you think that that's a sorry state of affairs, then there's substantial merit to requiring Congressmen to certify that they have read every bill.

And for all that Orin keeps insisting he's in favor of the goal, all I've seen today is attacks on an absolutist interpretation of "read the bill" rather than any proposals for how to reform a process that is surely horribly broken.
9.24.2009 12:44am
OrinKerr:
Orin, I have very little doubt that you've gotten the point and your future posts on this subject will reflect it.

Huh? I'm being entirely serious. I don't understand what position you think I am taking that you think "lost". If you refuse to even articulate what the position is, too, then I am doubly confused.
9.24.2009 12:44am
Melancton Smith:

Umm.. Microsoft Word has this this editing thing called redline/strikethrough or strikeout or something. Anyway, it's really easy to use and to read edits.


It even has a comment ability that perhaps they could use to signal legislative intent!


...the Right of the People* to Keep and Bear...
____________________

*---not 'militia' else we'd have used that word
9.24.2009 12:46am
Melancton Smith:
Orin,
It is about accountability. If they are required to at least read it, they can't say they didn't read it when faced with the unintended consequences.
9.24.2009 12:48am
CliveStaples (mail):
Orin:


I like that goal. In fact, it's one of the major reasons I spend hours a day blogging: I think it's really valuable to make law accessible to nonlawyers and nonexperts. (They don't respect it very much in the faculty lounge, but that's the way it goes.)


Shouldn't legislators be experts re: legislation? You're making perhaps an excellent argument for the impracticality of asking volokh.com visitors to read and comprehend the language of a bill, but that isn't their job. That's not what they get paid to do.

I would expect a mechanic to be able to tell me what's wrong with my car. I would not expect a volokh.com visitor to be able to tell me what's wrong with my car.
9.24.2009 12:49am
OrinKerr:
CliveStaples,

But in my experience, voters aren't normally that concerned whether legislators are experts in legislation. They want someone who matches their policy preferences, who seems honest, etc. But whether the nominee is really an expert in legislation usually isn't a big issue. If legislators are supposed to be experts in legislation, I would expect to see more lobbyists and former Hill staffers running, emphasizing their expertise in legislation.

Now, maybe you tend to vote for the legislator who is more expert, and it's an interesting idea. But I'm not sure most people agree with your priorities.
9.24.2009 12:56am
Dan Bongard (mail):
A congressman certainly is the CEO of his legislative team.

He might be, but that's not the job he was hired for. That's a job he opted for on his own.

The job he was hired for was to write, evaluate, and vote on legislation. Not to hire people to write and evaluate it while he sits back and waits to vote.
9.24.2009 12:57am
CliveStaples (mail):
Orin:

But in my experience, voters aren't normally that concerned whether legislators are experts in legislation. They want someone who matches their policy preferences, who seems honest, etc. But whether the nominee is really an expert in legislation usually isn't a big issue. If legislators are supposed to be experts in legislation, I would expect to see more lobbyists and former Hill staffers running, emphasizing their expertise in legislation.

Now, maybe you tend to vote for the legislator who is more expert, and it's an interesting idea. But I'm not sure most people agree with your priorities.


It may very well be the case that I reside in the minority, but I believe my argument still stands. Senators will be better able to carry out their obligations to their constituents if they know what it is that they're actually voting for or against.
9.24.2009 12:59am
OrinKerr:
Clive,

Interesting. I'm curious, how do you learn which nominee is the more expert in legislation? Do you study that for state races as well as federal ones?
9.24.2009 1:02am
CrimLawStudent (www):
Ah, the preeminently rational Professor Kerr leads the ReadTheBill Movement to it's logical and untenable conclusion.

If we're going to make legislators read all proposed bills, then shouldn't the legislators also read all related statutes to understand how the proposed bill would operate in conjunction with current statutory law? For that matter, shouldn't the legislators also read any related judicial opinions, to see how the proposed bill, along with the current statutory regime, might operate within the common law? To see how related bills are actually being applied by courts? Should they take note of related regulation as well? What about state law concerns?

Do you think a legislator, who may or may not have a legal education, will be able to understand that?

Aren't we forgetting that legislators are first and foremost politicians and not experts at legisprudence?

As a law student, I have roughly 150 pages of case law to read per night (truncated and paraphrased, thankfully, by expert editors), and I find that burdensome. But maybe, as Professor Kerr suggested, I'm just lazy.
9.24.2009 1:04am
Mike McDougal:

The fact that we have a regulation buried so deep as to require the designation "1030(c)(4)(A)(i)(II)" pretty much means we are no longer living in a transparent, anyone-can-understand-the-law society.

It's worse than that. The law isn't just a little opaque. The law might as well be a secret. There would be little functional difference.
9.24.2009 1:07am
JaredS:
For some reason there's little comment on the actual bill. Having read this, I'm opposed to it as a further federalization of crime (although in honesty, the new treatment of unauthorized access causing damage under (a)(5) is fairly comparable to the existing treatement of unauthorized access obtaining information under (a)(2), so that shouldn't be a federal crime either without some minimal enhancement).

As John Thacker observed, detaching the original (a)(5)(B) from (a)(5)(A) is not mere housekeeping because they were connected by "and". The conduct under (a)(5)(A) was simply not a federal crime at all unless it caused an effect listed under (a)(5)(B).

Mostly, conduct that is now an offense under (a)(5) but was not a crime before this law is now a misdemeanor. However, if an individual has a conviction under this section, subsequent (a)(5) offenses are felonies, even if they would not have been a crime before this law. Also, the new condition under (c)(4)(A)(i)(VI) would allow minor incidents that technically affect 10 or more protected computers to become felonies.

For conduct that was already an offense under the old (a)(5), this is indeed just housekeeping, and I think there is danger in someone believing that this was a housekeeping change with the main change being (c)(4)(A)(i)(VI). Note that, contra what John Thacker implied, effects under the subclauses of (c)(4)(A)(i) still need to be linked to the underlying offense (as a cause thereof).

(There is a very minor decriminalization--an offense under the old (a)(5)(A)(iii) that does not cause a loss. Bearing in mind that such an offense required an (a)(5)(B) effect, and the broadness of "loss" as defined in this section, that seems almost hypothetical.)

(Also, this law appears to have added a formal error to the United States Code. The change in the law's (a)(1)(B)(iii)(II), "by striking '; and' and inserting a period", inserted a period in the middle of 18 USC 1030(a), which is supposed to be one long sentence. It should have been a semicolon.)
9.24.2009 1:08am
CliveStaples (mail):
Orin / Prof. Kerr:
Interesting. I'm curious, how do you learn which nominee is the more expert in legislation? Do you study that for state races as well as federal ones?


Do you mean in the ideal case? In reality, it's nearly impossible to know which of the candidates is the most expert. And it is not the sole, nor necessarily the most important, criterion. An expert who disagrees with my normative political beliefs is useless to me; a non-expert who agrees with my normative political beliefs, but is so inept as to invert the meaning of each bill that he votes on is similarly useless to me.
9.24.2009 1:15am
CrimLawStudent (www):

It is about accountability. If they are required to at least read it, they can't say they didn't read it when faced with the unintended consequences.

Uh, you can still hold a legislator accountable, even if she voted on something she didn't read.

Could you imagine a legislator, accused of passing bad legislation, trying to defend herself by saying, "well, I didn't read it, so it's not my fault!"
9.24.2009 1:16am
Guest12345:

Could you imagine a legislator, accused of passing bad legislation, trying to defend herself by saying, "well, I didn't read it, so it's not my fault!"


That was Chris Dodd's argument.
9.24.2009 1:21am
CrimLawStudent (www):
Yeah, and Dodd is an incumbent in a Democratic state region; look at his polling numbers against Rob Simmons.
9.24.2009 1:24am
CrimLawStudent (www):
Oh, and just out of curiousity, since a CEO has a fiduciary duty to her shareholders, does that mean she should read every contract that her corporation enters into?
9.24.2009 1:27am
BGates:
If you refuse to even articulate what the position is, too, then I am doubly confused.

Orin, are you trying to discern his position by reading words that he wrote? Because I just found out the cool kids aren't into that anymore.
9.24.2009 1:27am
Rock On:
I wish some of you folks were a bit better at snark. The antecedents are so unclear at this point that I can't even tell who the snark is directed at anymore.

Back on topic, I'm with Prof. Kerr here, most people don't vote for technocrat legislators.
9.24.2009 2:03am
Mike& (mail):
Oh, and just out of curiousity, since a CEO has a fiduciary duty to her shareholders, does that mean she should read every contract that her corporation enters into?

You know that the Enron defense relied up on the "honest but ignorant CEO" defense. It failed. So, yeah, the law does expect CEOs to understand contracts - the important ones, at least. CEOs would be advised to read the important ones.

Presumably an enactment of Congress is "important" stuff. Similarly, we should expect Congress to read the laws.

Oh, and Orin: Dude, I am not going to read that text. Then again, I am not going to vote on whether or not someone will go to prison, based on the text.

With great power comes great responsibility. It'd be nice if Congresspersons took their jobs more seriously.
9.24.2009 2:13am
oc417:
Orin,

1. There is no rule that says Congress should write laws like this. Why not simply mark-up the old statute?

2. I can't help but think that human nature being what it is, government is essentially evil. We have managed to restrain it here in America through checks and balances and our democratic culture. But, this is an exception. But then again, I grew up in a Communist country and my experience informs my worldview. I suspect you grew up in the US, and so it is relatively easier to trust that government will always or most of the time act to your benefit. If such were the case, you would tend to discount the power of the electorate scrutinizing the laws being passed.
9.24.2009 3:59am
D.O.:
Because nobody mentioned it before I would like to through in the discussion the U.S. budget. Unlike all other laws, which you can demand to be brief, transparent, readily understandable or nonexistent the budget must be passed each year. Currently the begemoth weighs about $3e12. If you do not believe in such largess and want to shame legislators into smaller budget, you probably still want at least a robust defense. It will cost you ~$6e11.
Report of the committee of the House on appropriations stands at 476 pages, while the bill HR3326 itself is 147 pages of 25 lines each. Not much at all for the money. I am very very far from understanding the legislative process and might have missed a key piece of reading (it seems very slim). Still do we really want each and every legislator to read and understand it? This is assuming that they must personally understand what good or bad each provision does.

Now, make legislators think more about legislation and/or change their ways into composing more readable laws might be a worthy goal, but is "Read the Bill" movement a good way to achieve it?
9.24.2009 5:54am
K. Dackson (mail):
Yep, read every word. Means nothing, so I vote NO.

How about simply replacing the relevant portion of the statute with the new language? Or simply just rewriting the entire statute so it is comprehensible?

Of course, that would mean that the communication had to be CLEAR, and that's what lawmakers HATE.
9.24.2009 8:09am
Sarcastro (www):
3 steps to a better Congress:

1. Psychic Congressmen who can leave an imprint of their intent upon a bill, and not resort to these unclear words!

2. Because, plain language is always clearer than jargon, that's why experts in an area are always so clear, add 'Folks,' before every bill to increase readability.

3. Profit!
9.24.2009 8:36am
Pete Freans (mail):
Ok, then law professors shouldn't require law students to "read the opinion" or "read the statute" in toto. If we are lowering the bar for legislators (many of whom have J.D.), why not law students? To think of all the time I wasted in law school reading those opinions and statutes in their entirety.

If I don't read matters in their entirety now, it's only a matter of time before my state's ethics board would be chatting with me.
9.24.2009 8:49am
Hannibal Lector:
Professor Kerr, your post is very disingenuous. I'm not an expert in this area but I've commented several times on the difficulty of reading legislation as written and the remedy that is readily available to all Senators and Congressmen. The Congressional Research Service prepares completely non-partisan summaries of all legislation and their histories. On request, the CRS will also prepare sisde-by-sides comparing relevant sections of the USC as it is and as it would be were the legislation in question to be passed.

One reason why this issue has been raised recently is because the Democrats have been so obscenely anxious to get their legislative agenda rammed through Congress that they haven't even given the CRS time to prepare these summaries that Congressmen and Senators need to adequately fulfill their responsibilities.
9.24.2009 9:03am
Anderson (mail):
Between this chain of posts and the debate with Randy Barnett, my own powers of snark are feeble by comparison.

the remedy that is readily available to all Senators and Congressmen. The Congressional Research Service prepares completely non-partisan summaries of all legislation and their histories

Ah, so instead, we should be looking for promises to read the Cliff's Notes to proposed legislation?
9.24.2009 9:25am
jawats (mail):
I would like to see a requirement that all legislators WRITE the bills for which they are responsible. Seems reasonable, no? Forget the reading requirement - simply make it that all legislators who sponsor a bill be able to swear that they: 1. Wrote it; 2. Read it; and 3. understand it.

If they cannot, then they, simply put, are not legislators - just robots who figure out how to insert provisions sent by lobbyists and lawyers into bills. And why do we elect them, then?
9.24.2009 9:33am
Ben P:

If you're trying to make a point that it is hard to figure out what a bill does without reading the text, I have to ask you -- how were you planning to understand what the bill did WITHOUT reading it?

Obviously somebody has to read the damned thing. So find out who that guy is and make him the Congressman, because he's the one doing the Congressman's job.


That's probably the legislative aides job.

That's why this argument is at least a little bit silly. I don't think many people would argue against the principle that legislators ought to understand a bill before voting on it. the very point of this argument as a political tool seems to be try to goad people into arging just that.


But the answer to the above question is with some exceptions most of them already do "understand" the bill. They have party talking points and legislative aides and the congressional research service that provide them all with summaries and bullet points such regarding legislation.

It's certainly possible to argue that reading the cliffs notes, as it were, doesn't really allow one to "understand" the legislation properly. But then the solution is either better summaries or better bill writing.

But the overall problem seems to be the remedy wanted. So a congressman doesn't "do his job" and read every bill word for word. For better or worse he was elected. Is the answer to tell people they can't elect this person because he didn't do that?
9.24.2009 9:37am
plutosdad (mail):
Why can't they just write "strike the whole damn thing here is the new text" instead of all that search and replace sentence by sentence. wouldn't that be easier if you have a whole ton of changes? When we sign off on projects and contracts with vendors, we sure as hell don't sign an old version of the text, with amendments like this that amend it on a word by word basis. During the writing we'll have Word or Documentum or whatever track changes, but the final document is the final document after the changes amend it.
9.24.2009 9:46am
Calderon:
If the OP is just a joke, fine. If not, you've successfully proven that reading the bill alone doesn't help for bills that modify existing law. But all that is going to cause is for read-the-bill people to say that Congress members should read a text that shows current law with the additions and modifications made by the bill (much like a redline or Deltaview). So I'm not really sure the OP advances much of substance as to why Congress members shouldn't read the laws that they're passing.
9.24.2009 10:09am
ShelbyC:

As you realize, my view is that it is incredibly important for legislators to understand what they pass, but that having individual legislators sit down with the bill text is a terrible way to do that.


Maybe your missing the point of the "Read the Bill" folks, Orin. Having the legislators read the bill might be a terrible way to have legislators understand the bills in their current form, but isn't it a great way to force them to pass more comprehensible bills?

I can't be the only one who is sick of, after fielding conflicting assertions of what a bill means from folks like Orin, Steve, and others, I go to read the bill and find stuff like that posted above.

Hell, if Sarah Palin were to tell me that the above bill contained Death Panels that were going to kill my parents, and Nancy Pelosi were to say it didn't, I wouldn't be able to tell who was right.
9.24.2009 10:09am
Hannibal Lector:
Anderson:
Ah, so instead, we should be looking for promises to read the Cliff's Notes to proposed legislation?
Not even a good snark. If you'd read my complete post you'd see that the CRS also prepares "side-by-sides" which provide a complete printout of the portions of the USC that would be changed by the proposed legislation and exactly how it would be changed. "Side-by-sides" consist of a divided page. On the left is the text of the current USC. On the right the text as it would appear if proposed legislation were enacted. Shadings, boldings, and other techniques indicate deletions, insertions, and edits. "Side-by-sides" are usually prepared by lawyers familiar with the relevant federal statutes. Hardly Cliff Notes and easily read and understood by any decent legislator. But the Democrats wanted to ram this legislation through without oversight so no time for CRS "side-by-sides" for their current crap.
9.24.2009 10:15am
Sammy Finkelman (mail):
In the beginning, in 1789, there was a proposal in the U.S. Congress to do Constitutional amendments that way (write the exact changes that would be made, sort of like an old computer program) but it was decided tosimply put in the new language, without saying what had changed. That's why we can understand Constitutional amendments today, and also the history of the U.S. Constitution.

But legislation isn't usually written that way.
9.24.2009 10:20am
Sammy Finkelman (mail):
In the beginning, in 1789, there was a proposal in the U.S. Congress to do Constitutional amendments that way (write the exact changes that would be made, sort of like an old computer program) but it was decided tosimply put in the new language, without saying what had changed. That's why we can understand Constitutional amendments today, and also the history of the U.S. Constitution.

But legislation isn't usually written that way.
9.24.2009 10:20am
egd:
Just out of curiosity, Professor Kerr, how would you feel if a student came into your class one day and you started asking him about a case you had assigned, and his response was "I didn't read the case"?

Would you be upset? Would you let him know that if he wants to achieve a good grade, he should read and understand the case? Or would you respond, "Hey, that's OK, these cases are complicated and you can't be expected to understand every case in law school"?

What if instead the student answered most of your questions correctly, but when asked about a specific passage from the case, responded with "I never read the case, I read a summary prepared by another student"?

Again, do you expect your students to do their own work, or is it proper for them to rely on other students? Should they be expected to read the case, even if the understand the case based on the information provided by another student?

Personally, I think my lawmakers should be sufficiently familiar with legislation to have important discussions with constituents when the issue arises. They should be able to discuss the main points of the laws, but shouldn't be expected to quote the statute by page and paragraph.

Maybe you should revisit your expectations of your students if you think people who write laws shouldn't be held to such a high standard.
9.24.2009 10:26am
Jack R:
"Not even a good snark. If you'd read my complete post you'd see that the CRS also prepares "side-by-sides" which provide a complete printout of the portions of the USC that would be changed by the proposed legislation and exactly how it would be changed."

Why in the world should he have to read your entire post? He read a summary, which was plenty sufficient.
9.24.2009 10:27am
Steve:
Maybe your missing the point of the "Read the Bill" folks, Orin. Having the legislators read the bill might be a terrible way to have legislators understand the bills in their current form, but isn't it a great way to force them to pass more comprehensible bills?

Wouldn't it make a lot more sense to just lobby for bills to be written in plain English? Why obscure your point by going about it so indirectly?

Parenthetically, there are like a dozen commentors in this thread who have said "Orin, you're missing the real point," and they each seem to think the real point is something different. Again, an argument for campaigning for what you really want.
9.24.2009 10:37am
jrose:
Hannibal,

Does the CRS produce their summary prior to the legislative language? Do committees typically vote prior to the CRS summary? Do Congressional staffs typically produce their own summaries that suffice as a prerequisite for an informed vote?
9.24.2009 10:51am
The River Temoc (mail):
Just out of curiosity, Professor Kerr, how would you feel if a student came into your class one day and you started asking him about a case you had assigned, and his response was "I didn't read the case"?

Except that casebooks rarely reproduce an opinion in toto; they usually provide excerpts relevant to the point they're trying to get across. This suggests that summaries are perfectly adequate.
9.24.2009 10:56am
Brian Garst (www):
James Madison:


It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.
9.24.2009 11:02am
Dan Weber (www):
When it was explained to him that his concept of the bailout proposal wasn't correct, the president was momentarily speechless. He threw up his hands in frustration.

"Why did I sign on to this proposal if I don't understand what it does?" he asked.
From Style QC (might contain slightly NSFW images, but nothing pornographic)
9.24.2009 11:31am
CDU (mail) (www):
But in my experience, voters aren't normally that concerned whether legislators are experts in legislation.


If anything, being perceived as a policy wonk seems to be a negative for a lot of voters.
9.24.2009 11:34am
ShelbyC:

Wouldn't it make a lot more sense to just lobby for bills to be written in plain English? Why obscure your point by going about it so indirectly?


Maybe, but "read the bill" seems to be more effective. And of course, there are many points behind the "read the bill" movement, which is what makes it so appealing to many people. These range from encouraging more comprhensible bills to underscoring the fact that the congresscritters endorsing bills like the health care bill don't really know what's in them, that they've delegated the writing of these bills to staffers and special interests, and that they simply believe that voting yea will give them a better shot at being re-elected.
9.24.2009 11:47am
ShelbyC:
In fact, can someone please tell me, without guessing, whether or not the above bill contains Death Panels that will kill my parents? Show your work.
9.24.2009 11:55am
jrose:
ShelbyC,

How do you prove a negative?
9.24.2009 11:56am
geokstr (mail):
I would bet that every summary of the proposed democratic health care bills did not mention anything about either abortion coverage or illegal immigrants, because up until someone publicly accused Obama of lying, illegals were not mentioned in the bill. That is because if they are not specifically excluded, they will eventually be added in in practice. So a summary can be deceptive as to what the bill is going to do.

Now illegals are specifically excluded, but without any enforcement mechanism so that they'll eventually be covered in practice anyway. Wonder what the new summaries say about this issue?
9.24.2009 12:30pm
Displaced Midwesterner:

A congressman certainly is the CEO of his legislative team.

He might be, but that's not the job he was hired for. That's a job he opted for on his own.

The job he was hired for was to write, evaluate, and vote on legislation. Not to hire people to write and evaluate it while he sits back and waits to vote.


Really, it's an empirical question what most people are voting for when they vote for a congressman. But given what happens in campaigns and what you hear people talking about when they are deciding who to vote for, I would guess that the majority of Americans are, like me, not voting someone because they are a good legal draftsman. They are voting for someone to evaluate legislation and exercise judgment. But those functions are probably best served by the process of delegation, review of summaries, etc.

The Congressman/CEO example actually is right on the mark. CEOs are actually not the "boss" either - shareholders are, and typically the board of directors as well. Realistically, however, members of Congress, like CEOs, have a lot of discretionary power that they exercise somewhat in the shadow of their "bosses," be it shareholders or voters, who are a diffuse group whose influence over their "employees" is quite indirect.
9.24.2009 1:07pm
ChrisatOffice (mail):
(link)Vermando (mail) (www):
I must be the only one around here who found this post effective. Professor Kerr is arguing against people trying to get congressmen to read every bill. I think he effectively shows that that's inane. Answering that they could do something else to be informed - have a staffer read it and summarize it, read the committee report, etc - shows, to me, that Professor Kerr was right. What don't I get?

Beats me.
9.24.2009 2:13pm
ChrisatOffice (mail):
Nebuchadnezzar:

Orin, I have very little doubt that you've gotten the point and your future posts on this subject will reflect it.

Ugh. I have not encountered that childish move for years. Why not just say, "I know I am right; you should know I am right; I will pretend you know I am right."
9.24.2009 2:18pm
kimsch (mail) (www):
I said in another post that

I think that Congress should just stop writing unreadable bills. Make them short, sweet, and to the point. If amendments are felt necessary, rewrite the damn thing to include the amendment, don't just add more and more.

We don't need 1,000 plus page bills with hundreds of amendments. No one knows until too late that amendment DD-72 totally nullifies amendment B-625....

They should almost have to repeal an old law before they can write a new one.

To which another commenter said:

All this would end up in is bills that say, basically, 'we authorize the federal government, or a particular specific department, to accomplish the stated purpose of this bill. Now, guys, have fun.'

and I answered: Not necessarily...

The 1935 Social Security Act was ~42 pages. The US Constitution less than 20. If they don't put in a lot of crap, they could write bills that even a congresscritter could read.

If they insist on putting in verbiage such as "In paragraph 17 of Section 115aaa of the ThisBadLaw delete the word "and" and in paragraph 2079 in section 50,234aabbccdd add the word "and" before the word "is"." They should also put in a footnote to define exactly what that will do - or what they expect that to do...


Congresscritters were not meant to be "legislative experts". The House term of two years was meant to be a period of time that would be of the least disruption to the daily lives of the doctors, farmers, and shopkeepers who would represent their neighbors in the Congress. The six year term for senators (with ~1/3 up for election every two years) was meant to provide some continuity in the Congress. By the people, of the people, and for the people was meant to be just that. Not by the political class, of the political class, for the people they think are too stupid to understand anything and need "parents" to tell them what to do and when to do it.
9.24.2009 2:28pm
Devan B (mail):
Orin, even if we concede that reading the actual text of the bill may not be useful in all cases, can you admit that requiring a reading of the text could be useful in some cases?

Do you think that it would cause any actual harm, besides "wasting" legislator's time?

On a related note, I'm getting tired of your strawman arguments. Why should I keep reading your posts if that's the only rhetorical tool you use?
9.24.2009 3:31pm
govols:
"Why should I keep reading your posts if that's the only rhetorical tool you use"?

I'm sure he'll be heartbroken if you stop.

Look, this is one of those "principled" arguments that oddly only seems to arise with a change in the party of the president. In any case, there are several different problems flowing around out there. Here are three that caught my eye:

1. The legislator uses legislative complexity as an excuse when something embarrassing comes up. So? Do you think Chris Dodd got some love for his admission? We have elections so that if that sort of pathetic excuse shows up, you can fire your member of Congress. I don't care if Chris Dodd read the bill; I do care if he didn't take the time to find out what was politically important in it.

2. Our laws are too complicated. Agreed. Not sure what the solution is, though. We're not a young nation, our legal code is old, and we live in an increasingly interconnected society where complexity is a given. I know libertarians long for a wayback machine to take the country to a time where interstate commerce was rare, government didn't do much, most people were farmers, and our laws were simple, but the reality is otherwise.

Besides--the alternative--simpler laws--just transfers power to the executive branch and the courts. Is that really a superior option? Of course, if we lived in a libertarian society where government didn't address too many complex problems, that might work. Again, the reality is otherwise.

3. Legislators should be experts on the bill. This is silly. Specialization is a natural part of big organizations. Should every member of Congress be an expert on computer crime? And Iran? And health care? And intellectual property law? And military procurement? And so on? Should they just read the bill anyway? What if they don't get it--should they resign? Or if they ran their eyes over the text and then ask for help--does that satisfy?

Orin is correct--we should always hold MoC responsible for their votes, but the requirement of actually reading the bill seems like a horrible misuse of their time.

This is all really a moot point. The average citizen cares very little about doctrine, theories of interpretation, or precedent when it comes to Supreme Court decisions--they care about what is decided. Similarly, the notion that Republican voters would fail to vote for a Republican candidate simply because he or she did not take a "Pledge to Read All Bills" is nonsense.
9.24.2009 4:48pm
Foobarista:
This looks like badly formatted computer code, complete with calls to existing "subroutines".

One wonders when we'll simply give up and have "law generators" where we input high-level descriptions and templates and let electronic compilers output the actual rules? They'd probably be cheaper than Congressional staffers, and won't have their agendas.
9.24.2009 5:31pm
Deoxy (mail):
That this is an actual bill would shock most people. That is a useless pile of excrement, written so as to be as difficult to decipher as possible.

If they really had to READ THE BILL (as people are saying), they wouldn't WRITE useless crap like that.

The entire body of law that I am legally obligated to follow is larger than I can read in a year, even if I were able to read without any interruptions for food or sleep. In that year, the CHANGES to that law will likely be larger than I can read in that year, as well.

That is to say, no one can possibly know all the laws in this country, but we are supposed to follow them. Um, is it just me, or is "psychotic" the kind way to interpret that? ("Tyranical" would be among the less polite, for instance.)
9.24.2009 5:47pm
Laserlight (mail):
So... those of us who aren't lawyers may be required to pay heavy fines and/or do hard time if we happen to break a law which we can't reasonably be expected to understand.
9.24.2009 5:49pm
Bob Dole (mail):
@Laserlight:
"So... those of us who aren't lawyers may be required to pay heavy fines and/or do hard time if we happen to break a law which we can't reasonably be expected to understand."

Absolutely, Ignorance of the law is not an admissible defense.

We have a huge problem here, as its in the lawyers' best interests to make law complicated. They are also the ones who end up writing the law. This creates a terrible set of incentives that ends up with non-lawyers in a very bad position.
9.24.2009 8:03pm
SteveA (www):
I'm amazed that we don't require our congresscritters to use revision-tracking tools equivalent to the best that software engineering has developed. For example, the combination of SVN and Trac (link under name) shows each source code revision made, who made it, when, and why, in a convenient web-based format.

We should require this level of information for each word in each bill. And we should require that the bill be made public, as on the Trac system, for at least 15 days before a final vote is possible (in software terms, a "code freeze"). Amend the bill, and the 15-day clock starts again.
9.25.2009 3:35am
David M. Nieporent (www):
A congressman is not a CEO. A congressman is a programmer. He's not the boss; he's the employee.

A congressman certainly is the CEO of his legislative team.
No. Legislating is not a "team" activity. The congressman is the legislator for his district. He's no more a CEO because he has assistants than a first baseman is a CEO because he has trainers and coaches and batboys. Those people are assistants. They can fetch equipment for him, but they can't come to bat for him.
I gather you mean he's the employee in the snarky "you work for us" sense, but that's not a very effective argument.
No; I mean it in the utterly non-snarky sense. He's the guy we hire solely to vote on legislation.
You might hire your congressman primarily for his skill in legislative draftsmanship, but I doubt many other people do.
Not at all. I don't care whether he's a good drafter; only one person needs to draft a bill, not all of them. But they all need to vote on it, which means he has to know what he's voting on.
9.25.2009 11:08pm

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.