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You Are Not a Lawyer
Paul Ohm is starting a new "very occasional" feature on the Freedom To Tinker blog called You Are Not a Lawyer — "In this series, I will try to disabuse computer scientists and other technically minded people of some commonly held misconceptions about the law (and the legal system)." In the first installment, Ohm walks through the reasons why many techies' faith in the presence of "reasonable doubt" is so misplaced. "When techies think about criminal law, and in particular crimes committed online, they tend to fixate on [the 'beyond a reasonable doubt'] legal standard, dreaming up ways people can use technology to inject doubt into the evidence to avoid being convicted. I can't count how many conversations I have had with techies about things like the 'open wireless access point defense,' the 'trojaned computer defense,' the 'NAT-ted firewall defense,' and the 'dynamic IP address defense.' ... People who place stock in these theories and tools are neglecting an important drawback. There are another set of legal standards — the legal standards governing search and seizure — you should worry about long before you ever get to 'beyond a reasonable doubt.'"
Here's my summary:
"Beyond a Reasonable Doubt" may get you acquitted in the end, but that doesn't apply to all the things that happen to you BEFORE the trial: Cooling your heels in jail while charged, having every piece of technology you own seized as evidence, incredibly high legal fees, yada yada.
So, I guess the summary of the summary is:
Keep yer nose clean.
I suppose if you look at all the RIAA cases that routinely pop up here on /. you can easily see what he's talking about: look at all the costs and hardships those accuesed have to go through... The old lady who had probably never even listened to an mp3 in her life could probably attest to the pain. No reasonable jury would ever have convicted her, but that didn't stop the RIAA from causing her a big bunch of trouble.
The Digital Sorceress
A couple of considerations:
(1) the attorney author comes from the DOJ's Cymbercrime division -- the DOJ may have one interpretation of the law but the courts might have another;
(2) Academic lawyers generally have a slanted view on the world; and
(3) the facts and circumstances of your given situation are very important, blanket generalizations are risky. Facts can sometimes be fluid a good lawyer, can setup the playing field to the benefit of his/her client.
IANAL but I know some Law facts.
1 - dont trust cops.
2 - Dont trust judges.
3 - Dont trust lawyers.
4 - assume that everyone is trying to shaft you.
5 - Once you are in the legal system THEY OWN YOUR BUTT.
6 - If you are going to do something illegal, make sure you CANT GET CAUGHT.
7 - Dont do anything illegal.
Honestly, Judges hate you, cops hate you, everyone on a jury if you get that far hates you. you are considered Guilty until proven innocent. Dont even believe the Bullshit given to you as a youth that it's the other way around. It's not and never has been that way.
Finally, you cant talk a cop out of arresting you. You can make him think it's more bother than it's worth and let you go if it's not worth it and you're being a nice guy. They will let a nice guy in Abercrombie that says yes sir, no sir, thank you sir go with a warning way before the dont touch me pig screaming hoodie wearing blacked out eyesocket head shaved like the damned pincushion for a head guy. It blows my mind how stupid many criminals are, if you dress and look like a punk, the cops will treat you like a punk.
I never got in trouble as a kid. but then I was aware of my location and had a scanner in my pocket with a earphone in all the time. Friends learned that if I left a party or gathering, they need to as well.
Do not look at laser with remaining good eye.
... than techies trying to play lawyer are lawyers who dismiss the contributions of their technical staff.
For the record IAAL (though not your lawyer) working in house at a company. Our "techies" are engineers, builders, power system analysts, traders, etc. Another word for these people is "clients." The legal department exists to further the interest of the company and enable our techies to do business. Sure, criminal prosecutions are different than commercial contracts, etc., but the principle is the same -- the lawyer exists to aid his client in getting the best possible deal. I think the difference in outlook often results from the fact that criminal defendants tend not to be those in society best equipped to aid in their own defense, but good attorneys do their best to bring their clients along.
If fact, the best thing about being a lawyer is helping your clients execute our common goals. Really, lawyers really provide the same service as good tech support -- except we help clients navigate the twisted corridors of the law instead of technology or computer code.
Actually yes, a whole lot of people who call themselves techies are stupid. They also think they are far more intelligent then they are. On top of that, many who call themselves techies believe they are so far above blue collar 'mouth breathers' that with very little work they can completely confuse them. I mean, hell, you just did something similar here. You assumed that the article writer must be an idiot because, well, you said so. Go ahead and rethink your logic and consider that perhaps something happened, maybe even several times, that prompted the writer to write what he did.
Most people are idiots, that they call themselves a techie doesn't change that.
"I use a Mac because I'm just better than you are."
I don't think the point is getting involved, it is that many tech types, and more likely self proclaimed techies, will stray into gray areas and they need to know that their short sighted, I can't be punished theories aren't all that strong outside of their mind or circle.
I have seen this in the past where people on IRC serve ip copyrighted materials and think a simple warning "if you are a law enforcement or affiliated with them, you are not allowed in the server" will get any evidence thrown out if they are busted. It's stuff like that which people think justifies behavior or removes possible penalties from it that is being addressed. It's the I'm using Lime wire but I have an open access point which I will blame everything on, just to have your computer taken by warrant before you can delete the lime wire program or any of the files your sharing.
(1) you are not a lawyer.
(2) Lawyers think differently depending on the situation they are in. A "DOJ" lawyer might have completely opposing viewpoints to his employer when writing on a blog.
(3) The DOJ cybercrime division is not known for producing academic lawyers.
(4) Situations have common facts and courts often analogize.
It's sort of fascinating that you've posted the exact sort of response TFA expects. I'm tempted to think you're being ironic.
Here's the thing: a lot (i.e. the majority, actually) of these technical arguments you've referred to here are just silly. For example, you complain that the RIAA evidence links only to the computer, not the user. This is, of course, true. However, in the case of a family home that means the prosecution can narrow it down to the household members, so your argument would merely be "Well, you don't know if it was the dad or the son, so you can't sue", and that'll end up just bumping into group liability (which I won't bore everyone with here).
In the case of a shared computer, you'd have more of an argument, e.g. one a library computer or whatnot. But realistically, how many prosecutions have involved such a machine? So far, as far as I know, all the prosecutions have involved machines in private homes or apartments, so what exactly are you arguing?
"Stumble before you crawl"
Part of the problem is that "the geeks" got hold of economics and constructed their big, deterministic, agent based models. Models can be illuminating true, but in the case of economics, when reality and models parted company, the economists bemoaned the inability of the real world to match theory.
What is desperately needed in economics is a more reality based outlook that attempts to truly deal with the social and economic problems of wider society, rather than a bunch autistic, antisocial, arrogant geeks who don't even realise they're only allowed to keep doing what they're doing because it serves the interests of the powerful (and they're not getting in the way too much).
IAAE
Who's with me?! I SAID... WHO'S WITH ME!!??
Thank you for that. It's an interesting read but, for anyone who wants to save some time, here it is in a nutshell:
If your computer is targeted in a police investigation, your life is going to be a huge pain in the ass for a while even if you somehow manage an acquittal.
IANAL.
He's getting rather old, but he's a good mouse.
I basically agree with you, but I think your description of the problem is oversimplified and misleading. People are not monolithically "smart" or "stupid". Everybody's smart and stupid about different things. Like those wizards in the Harry Potter books that can master complicated magic spells, but can't mail a letter. What turns smart people into assholes is when they assume their smartness in one field automatically transfers to another.
I think computer techies are particularly bad this way because they tend to be self-taught. Often the most effective strategy for learning a technology is to just sit down and fiddle with it. Or they read a book that was probably written by another self-taught techie that often gets details wrong (how many of you can correctly define "ASCII"?) but gets enough essentials right to get the job done.
What techies don't get is that this style of learning just doesn't work with the law. Even if you understand a legal principle (and when techies try to understand something as abstract as a legal principle they often get it wrong) you don't have a practical understanding of its proper application in every context. Lawyers spend years studying and arguing about this stuff, and even so they have to specialize in order to develop any real expertise.
Smart people make mistakes too. More often in areas where they lack expertise. Even though in an abstract way you know all these things, in practice, they elude many people who really ought to know better. Just ask Hans Reiser how well his cunning plan worked out in practice.
As a techie, have you ever run across an otherwise intelligent person who wants to argue with you about why their network/computer/whatever doesn't work the way they think it should? Did you ever get frustrated because, despite the fact that this is what you studied to do, spent the last five (ten, thirty) years doing, etc., etc., they think they know more about networking/programming/computer security than you?
Now, as a techie, did it ever occur that some times, in arenas other than tech, it is *you* (and me -- I'm not pointing fingers) that is the know-it-all who just doesn't get it?
MCSE? No, sir...I don't do Windows. Yes, I am an idealist. What's your point?
I wouldn't shut up until the Supreme Court had heard the case.
Best of luck. There are a great many people that would love to get in front of the Supreme Court. Something tells me that your "There is no password on my WAP - Anybody could have downloaded that. I just didn't bring it up during trial to make a point." defense, although perfectly valid, will be your last words if you really keep repeating it until either getting through to the Supreme Court or dying of old age.
And I'd want enough money to be set up for life from the jurisdiction that was stupid enough to let their public officials have search warrants when there was still reasonable doubt as to innocence.
Good luck with that too. It's up to the jury to decide whether or not there's "reasonable doubt as to [your] innocence". Are you suggesting that we re-work our system so that the police can only collect evidence after conviction?
He's getting rather old, but he's a good mouse.
His point was that long before you ever get your day in court for "reasonable doubt", you will be arrested, jailed, your friends & family will be questioned about you, your stuff searched, etc... all with a much lower burden than "reasonable doubt".
So while you may ultimately prevail with "reasonable doubt", the police/prosecutors can your make you life a living hell until you get your day in court.
"I'd rather be a lightning rod than a seismometer." -Ken Kesey
You left out expensive - A huge expensive pain in the ass.
Here is one more: (4) If you are not in the US, US law does not apply.
I wished that was true :/
--- "When you gotta do something wrong. You gotta do it right. (Fighter)"
Here is one more:
(4) If you are not in the US, US law does not apply.
Tell that to Gary McKinnon and Hew Raymond Griffiths.
When information is power, privacy is freedom.
Ok, lets rephrase that: "If you are not in the U.S., your rights under U.S. law do not apply."
For real.
To use the open wireless access point as an example. If someone sits outside your house and downloads kiddie porn, or starts running brute force attacks against NSA through your connection, the feds will show up and confiscate every electronic computer and storage device in your house so they can run forensics on it, which may take them 2-3 years to get to. Meanwhile all your stuff is sitting in an evidence room depreciating.
Sure you might not get into trouble if there's no evidence on any of your gear or storage, but by the time you get it all back, it will be useless and way out of date.
If you factor this depreciation, and you have a lot of gear and storage, the cost is huge. Then you have attorney bills and your reputation to worry about. You will never fully recover your reputation even if you are 100% innocent.
Leaving that default password on your router has a lot of potential to screw your life up in ways you wouldn't expect.
-Viz
Don't kid yourself. It's the size of the regexp AND how you use it that counts.
Pretty much, yes. I am unaware of any laws in Sweden that prevent you from having your stuff seized and searched and your reputation ruined if you are suspected of a crime (and they can gather enough evidence). This isn't an "the American Government are all Nazis" article it's a "Being investigated for a crimes sucks almost as much as being convicted" article. It's pretty much true anywhere. The Police in more "civilized" countries still search for evidence, they still arrest you before you are put on trial, and good attorneys still cost lots of money. The man's argument is undeniable. If the Police suspect you of a crime, they can make your life hard. If they can get enough evidence to search your premises, they can make your life VERY hard. If they can get enough evidence to arrest you, they can make your life MISERABLE. Even if you wind up getting acquitted, It will cost you time, reputation, and money. In Sweden, the United States, Canada, or the North Pole.
I don't need a million points of light, just two points of multi-mode fiber and a 10 Gig-E router.