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Comment by the_watcher | Hacker News Reader

Ex post facto laws are unconstitutional, and something like this (where millions would instantly be in violation) would absolutely, 100% end up in front of the Supreme Court.

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Some examples of when a law can be retroactively applied:

When the Securities Exchange Commission decides that something is a security, it retroactively applies the civil and criminal compliance back to 1934 because it was always a security. I mean, you can argue it in front of a judge if you want, but thats how they established jurisdiction.

Same goes for discretionary tax law at the IRS

or any regulatory agency

I agree its a problem, but if you live your life under your version of reality it is easy to get railroaded in the dragnet

That just goes to show that the Constitution, while imperfect, is better than what we have now.

I'm not sure what you mean, all of those agencies are formed under the constitution and the systems that support them are also abiding by the constitution

The Constitution states, 'no Bill of Attainder or ex post facto Law shall be passed'; to the extent that those executive agencies' enabling legislation permits ex post facto regulations, that legislation is unconstitutional.

The Government can simply ban the use of that software without a license set at a future date (i.e. 1/1/2017).

New Regulation -> Future Date -> Ex post facto claims don't happen.

That is the process my original comment intended to imply.

They're definitely not. They've resisted due process for some time. NSA's reps even argued in Jewel case that judicial branch shouldn't be allowed involvement at all. Which is sort of the status quo for intelligence agencies and courts. Prosecutors similarly have a combo of broad powers, immunity in common abuses, and virtually no accountability. The government as it exists certainly doesn't run in the framework of the Constitution except in a partial way.

Not quite, SEC and other regulators do not really have the force of law, more the force of licensing and permissions

If you are a vast major bank and don't like the SEC you can try not being allowed in the doors of the private buildings of the NYSE, LSE etc.

They have the power not of law but of losing billions

> When the Securities Exchange Commission decides that something is a security, it retroactively applies the civil and criminal compliance back to 1934 because it was always a security.

That's not a retroactive application of the law. If they are correct in their interpretation of the law, it was already the law. If they are incorrect, the courts will not allow it (whether the enforcement concerns acts before or after the determination by the SEC.)

The issue is that they, and other administrative organs, often change their interpretation of what the law "has always meant". Particularly irksome when they issue private letters with differing interpretations and then override all of them with subsequent administrative rulings.

The ATF is particularly notorious for this.

Just a note, there is a possibility that the person you replied to is comfortable with circular logic about why the behavior is not controversial under the supposition that "the law is the law." This may be a semantical discussion about why it is not "retroactive" in a legally damning sense, despite the similarities of the distinct ability to civilly and criminally sanction somebody for something they did in the past. Long before representatives of the government decided that person's prior actions would fall under their jurisdiction.

> The issue is that they, and other administrative organs, often change their interpretation of what the law "has always meant".

Yes, and if that conflicts with what the courts believe the law has always meant, those decisions won't survive contact with the legal system. An ex post facto law is a law creating (or enhancing) criminal penalties for acts that exist before the law is passed. Changing administration interpretations are like changing prosecutorial priorities (and the former comes with a lot more notice and specificity than the latter) -- they only have effect so long as they are within the bounds of what the courts will accept was covered by the law when it was passed.

The courts will accept a hell of a lot, due to Chevron deference. Statutes will use a term (eg, "readily convertible" or "replica"), and the administrative agency will decide this term means different things depending on the day of the week and which party is in power. All it has to be is "plausible", not consistent, and the courts will defer to their interpretation.

https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natura....

But they can instead make it illegal to use such software, which would not be an ex post facto law (it would only apply to uses of said software after the law was enacted).

IANAL though, so I digress.

Except for when they aren't. There are several examples of ex post facto laws that have been upheld. The Supreme Court would definitely get involved.

It isn't ex post facto if it has an effective date of 1/1/2017, regardless of what came before.

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