Opportunity Digs; Spirit Advances



If he has ever paid taxes, he is the owner of that data. Credentials enough for you? It is for me. It ought to be enough for us all. If it isn't, then who is quailfied to decide? And what divined hand annointed them to be a more worth citizen?

So do you have to get a clearance to read a book or newspaper he bought? or should he be free to do so, whether he could read or not. who is to stop him? It's his. He paid for it.
You see there's a principle of law involved here. He happens to be on the right side of the law. You are not. Check the 14th amendment some time.
Also http://www.law.cornell.edu/topics/equal_protection.html
Finally, something to think about.
http://www.kevingoebel.com/niemoller.html
When you hear someone cry "injustice!" and you want him to shut up, you should expect even more injustice to happen to you very shortly. We either care about each others rights, or we loose any hope of maintaining any for ourselves.
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Randy M. Dumse
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Randy M. Dumse wrote:

Randy,
    I rather think the situation is contractual, with the embargo built into the contracts. If so, your 14th amendment issue is moot, since you are not in the same situation and condition as they are.
    If you are unhappy with the situation, you have a legal recourse. Two, in fact.
    First, you can peacefully assemble to petition the government, probably best to begin with your Congresscritter and Senator, although petitioning the President might be fun, too.
    Second, you can bring an action in Federal court to enforce what you consider to be your rights. I suspect you won't get far this way, but at least it'd keep you off the streets and use up your life savings.
    Or you can wait like the rest of us, and begin development of your expose' when the stuff is released.
    All that takes time and effort. Will you do the hard work, or will you only bitch?
Tom McDonald
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You think your government can enter into a contract that allows others to violate your rights? Sorry, no. That would be an illegal act, and therefore an invalid contract.
Come on, now. Think. If a white contractor got paid by the government to build a bridge, would they have exclusive rights to use it, and prohibit blacks from using it for a year? Would having a clause written in the contract make any difference to the fact one class was getting special priveleges over another class, while using the money and resources from all?
Rights are never moot, or they never were rights.

I do work hard, and I pay for my own research. http://xxx.lanl.gov/abs/gr-qc/9811052
To quote Voltare, "I may disagree with what you have to say, but I shall defend, to the death, your right to say it." I guess the part where I don't care about the data didn't come through. What I care about is a citizen (Thomas Lee Elifritz) is being vocal about his rights being violated, and Keith Lehman and others dunning him for doing so. It is a shame no one seems to care if anyone else's rights get violated. The reason we should do it is because we hope to keep our own rights. Because, the only way we keep rights is by banning together and supporting each other.
Do I take it you only intend to bitch then? and I shouldn't look to you for any hard work when they take me away... and you would approve if I had the same attitude toward you?
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Randy M. Dumse
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Randy M. Dumse wrote:

    Wow. Just Wow. No rights are, in fact, being violated; the complaint that they are is not the fact that they are.
    So if you had a contract with the government to do research using government-funded facilities, with you doing the reseach yourself; and the contract included a clause that allowed you to use the results of the reseach for a period of time, after which the data would be released to the public; and the group that lost the contract to you because it was inferior scientifically and more costly; in that case, you would just hand over your research to that inferior competetor as soon as you'd done the work to develop it?
    Or if that's too hard, how about if you bought a car, signed the contract, took posession of it, and your neighbor used it as though it was theirs.
    Or if that's too hard, how about if the US made a treaty (essentially a super-contract) with an Indian tribe about their reservation, and you just moved onto the res because you are an American, and the contract (treaty) gave the Indians something that you wanted.
    Or how about if you just admit that you have no respect for someone else's rights when they interfere with what you want?
Tom McDonald
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Analogies, huh... The one offered is not appropriate to the situation. Let's see if we can get one closer to the facts.
How about if you bought a car, signed the contract, paid for it, but weren't able to take posession of it right away, and so you paid your neighbor, a professional driver, $1000 to bring it home for you. But your neighbor decided they could used it as though it was theirs for the first 50,000 miles. You get it after they're done with it. What if the car dealer gave them permision to do so in a contract you didn't approve? Make any difference? Now that is a closer analogy of what has been done here.

Treaties fall into a whole different category. Treaties are now the favorite way of bypassing the constitution. First used to create laws without a constitutional basis in the early 1930's. Also, gor instance, it doesn't take 2000 pages to describe "free" trade. But I haven't heard you have any respect for the law, so I'll assume you aren't interested in those details, unless I hear otherwise.

Strawman. I have no interest in the data. My motivation is entirely caring about someone's rights, and here you are accusing me of what you are doing. Tsk tsk. How about you apologize for implication to the contrary? Just a suggestion. Don't be offended just because I am.
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Randy M. Dumse wrote:

    This is pointless. I have great respect for people's rights. I have fought for them, and will again. This is not about rights, but about proceedures and contracts. If you want to call me names, please go ahead. I don't fear the judgement of folks here who know me, and I don't care about the judgement of folks who don't.
Tom McDonald
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http://www.nizkor.org/features/fallacies/straw-man.html
Good night.
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Randy M. Dumse

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You still haven't explained exactly what "right" you think is being violated. (The 14th Amendment just says that states have to treat everyone equally and cannot abridge their rights. This seems quite irrelevant here, since there is no action by a state involved, but in any case, you have yet to establish that anyone's rights are being so much as endangered.)

When was the last time you held a party in your Congressman's office in Washington? If you show up claiming that it's your property and you have a right to party there, you will be informed pretty damn quick that even if it was paid for by tax money, your Congressman and his staff have the privilege of using it, and you do not.

You have that exactly correct: they never were rights.

No, he's *alleging* that his rights are being violated. He has yet to establish that there is any actual legal right involved.

If you whine about every imagined infringement on nonexistent rights, nobody is going to pay any attention to you on that unhappy day when the rights and the infringements are real. If you hope to make a difference on that day, you have to refrain from crying "wolf!" until that day comes.
--
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since Oct; first surprises seen; papers pending. | snipped-for-privacy@spsystems.net
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Henry Spencer wrote:

He also has not demonstrated (nor does he have to to us) that he is a US citizen. Usenet is an international forum. We don't even know he is who he says he is.
Haranguing folks on Usenet (where none of us have the data he wants) is about as useful as trying to buy an airline ticket from the dustbunnies under the bed.
People in the USA do have a propensity for complaining about something to everyone except the person who actually could do something about it.
Maybe that provides evidence he a bonafide citizen after all. On the other hand, anyone who has ever gone through channels knows that 'real-time' in a bureaucracy can be anything from weeks to months to years.
It all started with the me-now generation, instant pudding, and CNN, and we've been spoiled ever since. *|;-)
Jo
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Which specific right was violated? Name the specific law. Your are arguing generically in a very specific situation.

Banning? Are you equally careful in your research?
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Uh, no, sorry, wrong. The government is. There are *many* things the government owns which it will not give copies of to a random taxpayer on request. (For example, you can't demand a copy of your neighbor's tax return, not even if you suspect he's cheating on it.)
Nor is this even unusual. Being a shareholder in a company makes you part owner of it, but does not entitle you to demand copies of its internal documents.

Your elected officials and their assistants, of course. The US is a republic, not a pure democracy; your power and ownership are exercised through representatives, not directly.
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since Oct; first surprises seen; papers pending. | snipped-for-privacy@spsystems.net
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FOIA.
The US Constitution, written by the our elected officials, is called the highest law in the land, says one group can not have special priveleges over another. And then our other elected officals pass a law called the "Freedom of Information Act" where the government must disclose information it collects...
http://www.nih.gov/icd/od/foia/efoia.htm
I don't see anything about mars data in the list of excluded items, unless they might be claiming this is "geological and geophysical information and data, including maps, concerning wells." They are looking for water after all, but I can't say this qualifies as wells.
So let me see if I understand your position. The constitution doesn't count, the law doesn't count, our elected officials don't count, but their assistants some how count. Some minor bureaucrat decides to deprive citizens of their rights and those protections under that law, and that's a good thing. That about cover it? Or haven't you looked at this in this light? Or are you one of those minor bureaucrats with special priveleges who think they're above the law?
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I'm not a constitutional scholar, so I have no comment on the Constitutional issues. Nor do I have any comment on the ethical/moral/libertarian issues. However, on a purely legislative note, it appears that the FOIA has been interpreted in a way that allows temporary data embargoes:
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname 99_register&docid-26264-filed
    Congress included a two-sentence provision in OMB's appropriation for FY 1999, contained in Public Law 105-277, directing OMB to amend Section __.36 of the Circular ``to require Federal awarding agencies to ensure that all data produced under an award will be made available to the public through the procedures established under the Freedom of Information Act.'' The provision also provides for a reasonable fee to cover the costs incurred in responding to a request. The Circular applies to grants and other financial assistance provided to institutions of higher education, hospitals, and non-profit institutions, from all Federal agencies.     In directing OMB to revise the Circular, Congress entrusted OMB                          ^^^^^^^^^^^^^^^^^^^^^^ with the authority to resolve statutory ambiguities, the obligation to address implementation issues the statute did not address, and the discretion to balance the need for public access to research data with ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ protections of the research process. In developing this revision to the ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ Circular, OMB seeks to implement the statutory language fairly, in the context of its legislative history. This requires a balanced approach that (1) furthers the interest of the public in obtaining the information needed to validate Federally-funded research findings, (2) ensures that research can continue to be conducted in accordance with the traditional scientific process, and (3) implements a public access process that will be workable in practice. ....     During the revision process, many commenters expressed concern that the statute would compel Federally-funded researchers to work in a ``fishbowl'' in which they would be required to reveal the results of their research, and their research methods, prematurely. They argued that this could prevent researchers from operating under the traditional scientific process. As in many other fields of endeavor, scientists need to deliberate over, develop, and pursue alternative approaches in their research before making results public. When a scientist is sufficiently confident of their results, they publish them for the scrutiny of other scientists and the community at large. Accordingly, in light of this traditional scientific process, we have ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ not construed the statute as requiring scientists to make research data ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ publicly available while the research is still ongoing. ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
There's a lot more, also at:
http://grants.nih.gov/grants/policy/a110/a110_guidance_dec1999.htm
The term, Research Data, is defined as the recorded factual material commonly accepted in the scientific community as necessary to validate research findings.
It does not include:
    ...     * materials necessary to be held confidential by a      researcher until publication in a peer-reviewed      journal     ...
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http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname 99_register&docid-26264-filed
Very interesting link, Ken. But I want you to notice what this says at the top.This is in the Federal Register, not the Federal Code. http://www.gpoaccess.gov/fr/ In other words, some minor bureaucrat took it upon himself to claim he was tasked to write law. In actuality he is writing policy. Policy is required to follow the law, not change or modify the law, not be the law.
Clearly they knew there was a problem with the policy as violating the law, or the law wouldn't have been named .
Public Law 105-277, directing OMB to amend Section __.36 of the Circular ``to require Federal awarding agencies to ensure that all data produced under an award will be made available to the public through the procedures established under the Freedom of Information Act.'' You see the law is clear. The policy intends to sidestep the law.
Here, some minor government employee is saying, "In directing OMB to revise the Circular, Congress entrusted OMB with the authority to resolve statutory ambiguities, the obligation to address implementation issues the statute did not address, and the discretion to balance the need for public access to research data with protections of the research process".
Whoa! This ought to alarm us greatly! There is no provision under the Constitution for Congress to entrust anyone to write law. First Congress cannot delegate their elected status to non elected officials concerning the making of law. There is no provision under the Constitution for Congress to entrust anyone resolve statutory ambiguities. Secondly, how can Congress delegate authority resolve statutory ambiguities given specifically to the judiciary? and specifically prohibited from the Congress?
It doesn't take a Constitutional expert to see what is going on here.
What I am complaining about, is we citizens can read well enough to know a violation of Constitution, and the FOIA, for ourselves. The founding fathers counted on us as the last hope to keep the new government they created honest. That's why we sit on juries as the final defense against government abuses and usurpations, which they greatly feared. I am amazed and disheartened to see I live among so many who would disappoint the founders so easily.
George Washington upon leaving the White House, said: "Government is not reason. It is not eloquence. It is a force, like fire: a dangerous servant and a terrible master."
Ultimately my freedom and your freedom, depend on living among those willing to defend it, not mock it. When someone says they are incorrectly treated at the hands of government, such that it is the master and he is the slave, and no one defends them, or thinks deeply enough to see a problem, or can't read a few lines of law, or instead talks of alleged rights that don't exist... it is a sad, sobering day.
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Randy M. Dumse

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True, though note that the FR does have the force of law, though it is not a law.

Sorry, I don't know what you are trying to say here. You are saying that the fact that they named the law means that they knew they were violating the law?

That seems to be a matter of interpretation. My interpretation is that Congress intended to allow OMB a certain amount of flexibility. If they didn't, I think that Public Law 105-277 would have just said:
That the Director of OMB amends Section l.36 of OMB Circular A 110 to require Federal awarding agencies to ensure that all data produced under an award will be made available to the public after 2 weeks through the procedures established under the ^^^^^^^^^^^^^ Freedom of Information Act:
Instead, they left out an exact time.
At any rate, if Congress was unhappy with it, they would just pass a bill stipulating an exact time period, right? Write your Congressman!

Okay, but now we are moving far afield. You are essentially saying we should do away with the regulatory process (Federal Register). Each bill would have to include every single last detail. This sounds ideal, but it's impractical within our current system of government. Legislators already have a hard enough time understanding bills.

Well, like I said, I'm not a Constitutional scholar, but I didn't see anything in the 14th Amendment that requires immediate release of scientific data.
At any rate, I think a much bigger issue is that government-funded IP may not be in the public domain.

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the
Have you read Public Law 105-277? or just this snippet from the OMB Federal Register posting? If not, I finally found it here.
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname 5_cong_public_laws&docid=f:publ277.105
The part applying to "Office of Management and Budget
" For necessary expenses of the Office of Management and Budget (OMB), including hire of passenger motor vehicles and services as authorized by 5 U.S.C. 3109, $60,617,000, of which not to exceed $5,000,000 shall be available to carry out the provisions of chapter 35 of title 44, United States Code: Provided, That, as provided in 31 U.S.C. 1301(a), appropriations shall be applied only to the objects for which appropriations were made except as otherwise provided by law: Provided further, That none of the funds appropriated in this Act for the Office of Management and Budget may be used for the purpose of reviewing any agricultural marketing orders or any activities or regulations under the provisions of the Agricultural Marketing Agreement Act of 1937 (7 U.S.C. 601 et seq.): Provided further, That none of the funds made available for the Office of Management and Budget by this Act may be expended for the altering of the transcript of actual testimony of witnesses, except for testimony of officials of the Office of Management and Budget, before the Committees on Appropriations or the Committees on Veterans' Affairs or their subcommittees: Provided further, That the receding shall not apply to printed hearings released by the ommittees on Appropriations or the Committees on Veterans' affairs: Provided further, That the Director of OMB amends Section __.36 of OMB Circular A-110 to require Federal awarding agencies to ensure that all data produced under an award will be made available to the public through the procedures established under the Freedom of Information Act: Provided further, That if the agency obtaining the data does so solely at the request of a private party, the agency may authorize a reasonable user fee equaling the incremental cost of obtaining the data: Provided further, That OMB is directed to submit a report by March 31, 1999, to the Committees on Appropriations, the Senate Committee on Governmental Affairs, and the House Committee on Government Reform and Oversight that: (1) identifies specific paperwork reduction accomplishments expected, constituting annual five percent reductions in paperwork expected in fiscal year 1999 and fiscal year 2000; and (2) issues guidance on the requirements of 5 U.S.C. Sec. 801(a)(1) and (3); sections 804(3), and 808(2), including a standard new rule reporting form for use under section 801(a)(1)(A)-(B)."
Now if you can find support for "In directing OMB to revise the circular, Congress entrusted OMB with the authority to resolve statutory ambiguities, the obligation to address implementation issues the statute did not address, and the discretion to balance the need for public access to research data with protections of the research process." you're a magician. There's not "entrusting" there. None.
Look how the whitehouse describes Public Law 105-227
http://www.whitehouse.gov/omb/egov/about_leg.htm "Government Paperwork Elimination Act of 1998 (GPEA) Public Law No: 105-277 The Government Paperwork Elimination Act (GPEA) requires Federal agencies to allow the option of submitting information or transacting business with them electronically. Agencies must implement this electronic option by October 21, 2003.
"GPEA is intended to help citizens gain one-stop access to existing Government information and services, provide better, more efficient service, and increase Government accountability to citizens. Also, the law encourages Federal agencies to use a range of electronic alternatives"
You have to read the FOIA, which is what Congress wrote, to know what Congress meant.
http://www.usdoj.gov/oip/foia_updates/Vol_XVII_4/page2.htm (6)(A) Each agency, upon any request for records made under paragraph (1), (2), or (3) of this subsection, shall--
(i) determine within ten days twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination; ...
You see what I mean? Congress did give a very exact time.

Don't have to. Congress is way ahead of you. Now, how about we all write our Federal Judges? and the U.S. Attorney General? and insist on an investigation. Follow your own conscience. For my part, I've written NASA FOIA PO for clarification of the situation as a starting point.

No. I am not essentially saying what is suggested.
I am essentially saying regulations must follow the law as written, and failure to do so amounts to a usurpation of authority and stands in violation of the Constitution, as well as rule of law and democratic principle.
The 14th Amendment provides all citizens must be equal under the law, which is an amplification of the original 5th Amendment and extention to the States as well. On the principles of equal protection and equal access, the Freedom of Information Act requires the government to deliver information to requesting citizens, the only possible exception is when it falls into one of nine clearly listed categories.
http://www.fas.org/sgp/foia/citizen.html
"With the passage of the FOIA, the burden of proof shifted from the individual to the government. Those seeking information are no longer required to show a need for information. Instead, the ``need to know'' standard has been replaced by a ``right to know'' doctrine. The government now has to justify the need for secrecy."
Not one of those 9 categories of exceptions applies the OMB Federal Register publications suggesting anything to the contrary,
"In developing this revision to the Circular, OMB seeks to implement the statutory language fairly, in the context of its legislative history. This requires a balanced approach that (1) furthers the interest of the public in obtaining the information needed to validate Federally-funded research findings, (2) ensures that research can continue to be conducted in accordance with the traditional scientific process, and (3) implements a public access process that will be workable in practice."
This looks to me to be "color or law" "cut from whole cloth", rather than any empowerd body with legistlative authority.
Now to reiterate my position, while I have lost respect for Elifritz as a person and find his behavior immature, repugnant and personally insulting, I do say, if he is a citizen, he has rights that are violated. If our government has collected data (even having paid someone else to do it for them) they must share that data equally with all citizens, now, not later. To do otherwise gives unequal access, which is prohibited by law.
If we don't care about the rights of all, we shouldn't expect our rights cared about at all either.
--
Randy M. Dumse

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This time limit applies to records under paragraph 1, 2, or 3. I don't see mention there of scientific data obtained under federal-funding.
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On Sun, Feb 22, 2004 at 07:34:35PM -0600, Randy M. Dumse wrote:

&docid=f:publ277.105
My hat is off to you, Randy! My eyes turn glassy after about 100 words into that winding, nearly 400 word!, run-on sentence. But somehow you are able to decipher the meaning of that linguistic abomination! Not to mention the fact that you probably had to wade through a seemingly endless quagmire just to find that "juicy" tid-bit :-)
I'm at home with the most technical of microprocssor data sheets, but this stuff makes those seem like children's early reader books. I understand that they are written as they are to attempt to convey an unambiguous meaning. But frankly, how's anyone supposed to know what their rights are without first going to law school?
Thanks for digging this up. I don't know if it applies or not, but it sure makes for interesting reading :-)
Cheers, -Brian -- Brian Dean, snipped-for-privacy@bdmicro.com BDMICRO - MAVRIC & MAVRIC-II ATmega128 Based Dev Boards http://www.bdmicro.com/
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The FOIA specifies a number of exemptions, and specific statutes have authorized more.

Do let me know how your plans to hold a party for your friends in the Oval Office go. I think you'll find that the normal occupants of that office do in fact have special privileges over you and your friends, and that no court is going to seriously entertain a Constitutional challenge to that.
You have a remarkably exaggerated idea of what the US Constitution says. Have you read it? Which clause, exactly, do you think is relevant here? (The 14th amendment is not, since no state law or action by a state is involved.)

I believe you'll find that most forms of proprietary information are normally held to be covered by clause (b)(4).
Moreover, I don't believe anyone involved in this discussion has made an FOIA request for this information. Just haranguing people about it in a Usenet newsgroup doesn't constitute such a request, you know. If you actually try making such a request, you might learn something.

Only in your imagination. Rights and protections have to exist before you can be deprived of them.
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You have demostrated terminal stupidity here. That's about it for you.
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