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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.'"
Only yesterday I read an article (found through Reddit) called (paraphrasing) "You are not a macroeconomist - you are a geek" - about all the Reddit/Digg/whatever people that think they understand the economy and how to fix it.
-Daniel
You Are Not a Technologist for lawyers. That would be especially educational on intellectual property where lawyers are often absolutely clueless as to what a "technology" or "invention" actually looks like and how easy it is to make something that they thing is super cool, which we actually know is pretty mundane.
A few years ago, I went into put-up-or-shut-up mode with a lawyer over DRM. She kept saying that we needed the DMCA because it would protect a growing market for "interchangeable, competitive, open DRM" or something to that effect. It basically boiled down to a pipe dream about DRM that is open to competition, not locked down to one vendor and that doesn't balkanize the marketplace. Yeah, I know. I should have asked her if she wanted a cherry on top and for me to add a pony to her list while she was at it.
When I asked her **how** that would happen, when so far, no one has accomplished that, she had no clue. None. I pointed out that it is absolutely ridiculous to think that you can just weave DRM into an OS, and that if you leave it in application space a la iTunes, no one else is forced to use it. Again, no clue.
Hopefully she and her colleagues got that pony...
The conviction rate in the the US above 98%
The conviction rate during the Spanish Inquisition was 96%.
Therefore, either we're really good at identifying people, or "reasonable doubt" has become unreasonably weak defense.
Slashdot's rate-of-post filter: Preventing you from posting too many great ideas at once.
How irksome that judges, juries and lawyers should have to learn how technology works in order to do their jobs properly.
Yes, people do have to use an ounce of cation online. Installing virus-checkers and securing your Wi-Fi are very important security measures.
However, if we are entering an era where the justice system simply can't be bothered learning anything about the most basic computer technology, we're entering an era of wrongful convictions.
I remind everyone of the schoolteacher who was fired over spyware popups. It's time for the justice system to educate itself, not bury its head in ancient jurisprudence.
Basically what it seems this article is saying is "despite all the technical 'doubts' you may throw against the charges, your live will already be ruined by the seizure of your equipment and the trial-by-media that ensures various charges"
And sad as it is, that's probably a fairly true statement. Even here on slashdot I remember that when some guy stated that the kiddiepix on his computer came from a trojan that had massively owned his machine (and it was shown it had been fairly owned), many still believe that the possibility was too low.
From my own experience, it's not that impossible. Where I used to work, we had a contractor setup a machine in a horribly insecure way. The box was owned over the weekend, and when I got back to the office it was pretty much unfixable short of a full format. In addition, the filenames I did see before I wiped it were fairly disturbing.
So when you think about it, if your machine is owned, what is somebody going to do with it? The answer would be, "all sorts of things they wouldn't want to be caught doing with their own machine."
Now fast-forward to another event in my own life. I was at one time accused of shoplifting from a video store. The cop on the phone told me it was on camera, gave a description that could have well enough been me, and gave my license plate # as the vehicle identified. After a few days of trying to get things sorted out, and being constantly threatened by the police, I contacted the video store in question to see if the tape-in-question had been misplaced and not stolen. After talking to the manager, I found out that no tapes had been stolen at all, and that they never carried a tape by the name given (oh, and their cameras actually only monitor, not record). However, there was a file with the police, which I can only guess originated from somebody calling in a fake complaint.
It took the video-store owner calling the police dept up to get them to stop threatening me, and after that the calls just stopped (no apologies). If I hadn't called into the store to check on things myself, who knows how far it might have gone.
So if you're trusting the thoroughness of the legal system or the good sense of a jury to save your ass, think again. Even if you're innocent your life could still be ruined by a false accusation, a suspicion, or bad luck. When the police believe that you're guilty, they will come after you heatedly and often without regard for your potential innocence. The can lie to you, they can make your life miserable, and they aren't going to stop just because of some obscure "open wireless" defense.
I read this as a warning that such and such ironclad defenses are not the complete picture of how a prosecution would go, and to listen to your lawyers legal advice.
True, smart people would have thought this through. There is no shortage of dumb criminals, the newspaper is full of them. Particularly so for teenagers, I can't count how many times I've heard "ironclad" loopholes for smoking pot, carrying drugs, getting away with shoplifting that any reasonable person would know has to be BS. Living in California for most of my teenager years, you can't imagine how many times I've heard the "minors cannot enter into contracts" law used as a defense in ways that couldn't ever work. Everyone was a lawyer...
I think it's healthy to point out that this isn't a game, that there is no magic pixie dust to escape you from criminal activity. The subtext might be, if you're going to commit a crime, assume big brother is watching and think through how he's go about proving you guilty. Assume he's competant.
I suspect that in most of the cases this guy is writing about, the people caught never expected they'd be investigated. The likely compounded their problem with lame defenses after the fact, because they're shocked/outraged/scared, and not listened to their lawyers advice, assuming he/she was too stupid to understand the technology. It comes across a bit weak that because one lawyer writes about the issue and clearly understands it, that should assume all lawyers would...but then I think he did a good job of explaining why it doesn't matter anyway.
[And no, I don't think "troll" is the right moderation for parent, although it could have been more civil]
No, he concluded that the article writer is an idiot because the writer made stupid assumptions.
Oh, I read the article as "technological arguments, though sound, won't stop the legal system being 100% broken."
FGD 135
That a lot of times people (judges) simply DON'T UNDERSTAND THE IMPLICATIONS OF A TECHNICAL ARGUMENT and rule the way they want anyways. This is why patent suits were always held in west texas
Because people from Texas are mouth-breathing retards who wouldn't understand a technical argument?
Actually, no. Patent suits are frequently held there because the law, being federal, is the same everywhere, and that particular district has a docket almost completely free of other cases. Not much interstate fraud, racketeering, large-scale drug importation, etc., the way there is in New York.
Did you know that plaintiffs are actually less successful in the E.D.Texas than elsewhere (and yes, it's Eastern, not Western where the majority of patent suits are filed)? No, you couldn't know that, or you wouldn't be making this argument.
... seems to be something that people (lawyers, judges) IGNORE shows they don't actually care about the FACTS.
Facts like eastern vs. western district, the availability of space on the docket, the fact that patent cases get fast-tracked through the system resulting in lower costs...?
And then they blame the legal system when they mess it up.
They claim that ignorance of the law is no defense. This requires that the law be accessible to the average person. However, if I were to read all laws (and regulations with force of law, as many electrical "laws" are a national book that isn't actually published law, but carries the force of it, as is the FCC and many other such sub-laws), I would die of old age before I could read them all. So, I'm not allowed to claim I didn't know it was against the law, and it's impossible for me to know all the laws. That alone sums up "law" as a profession. Sure, as a mechanic, I could be good with Mercedes and not know about Fords. But if I own a Mazda, I can get the Chilton's or such and have a good bet at figuring out most I'd need to know, and have a good idea when I'd need to call in support. For the law, you are expected to call in support before you ever start. Asking your neighbor for help with your Mazda is perfectly fine, but illegal in Law.
And lawyers also have 7 years of school to pay for.
So anyone that can get through an MBA program at 6 years should be able to charge about what a lawyer does? It's not just supply and demand, it's that the law creates a monopoly. Only Bar members may practice. Then, the lawyers got together and made laws to protect their racket, driving up prices. Lawyers making laws don't make them as simple as possible. Ever read a law? It's impossible. The law was passed in the 1800s. Then it was amended once every 5 years for the past 100+ years. And many of those amendments were to amdendments. So you have to spend hours per line figuring out what the law actually says now. And yes, I've seen them done this way. However, now it's more common to have an "unofficial" recording of the law with it written as amended, as opposed to written as written/stricken/overwritten/repeat.
And you got that from the judge. The joke goes, "What do you call the person that graduated last in his class in medical school? Doctor. What do you call the person that graduated last in his law school? Your honor."
Learn to love Alaska
So, let's assume you've discredited Ohm to some degree. But, is that degree relevant? The general points you've made to do so have some merit. However, Mr. Ohm is probably a lot closer to having the pulse of the US legal community that you or I. Therefore, even if he's done work for the RIAA, Exxon/Mobil, Altria, SCO, *and* Lord Cheney himself, his legal insights are going to carry more weight than ours. Why? Because he (probably) has much more extensive experience in how DAs, courts, and Federal/State/Local law enforcement work than we do.
Hell, even a law professor at Liberty University - of all places - has a leg up on 99.007% of the citizens when it comes time to decide: 1) am I about to step into the kimchee, and 2) if I do, what my odds are of keeping my okole and my assets out of harms way.
Luke, help me take this mask off
I have to wonder - how much does an average lawyer retainer cost? I can see $1,000 a year vs $20,000 a year making a big difference between what a middle class person would be able to do. Any recommendations for finding lawyers for handling general stuff a normal person would go through (basic contracts, etc)?
The problem I have is finding a lawyer has got to be like finding a doctor - you almost have to be one to do anything better than pin the tail on the lawyer!
What do slashdotters do who have lawyers?
Opera, Proxomitron-Grypen,GPG 0x0A1C6EE3
mod parent up. I want answers to BOTH those questions.
Everyone says 'get a lawyer'. How much is this going to cost.
I've always assumed they were expensive, and paying a lot just to have someone to call is quite frankly, too expensive. In the last 10 years, I've never needed one. How much would have having one, even just a basic, "starter model" someone competent and cheap, but no frills... what would that have cost me?
And the second question... how does one find a competent one? No one in my social circle has one... so a friends referral is out.
You never need to turn to unofficial sources for the current law.
That's untrue, unless you consider the NEC an "official" legal body. My local codes state something to the effect that "all electrical work must conform to the NEC." Thus, if you violate the NEC, you break the law, and if you don't, you are following the law. So you must pay a private organization for a copy of a book to figure out if you are breaking the law. However, I think you were talking about my reference to the laws being accessible, and that is based on the laws being available online first by private organizations that charged. If you wanted them for free, you went to the library, which had the oldest possible copies, and then years of amendments, rather than a re-publish of the entirity every year. Now, it is common to find most places put the actual laws as applied online. But that's very recent. So, between regulations like the EPA regulations, the FCC regulations and laws that give legal power to private organizations like the NEC, coupled with case law, I stand by my statement that the laws are unknowable. If they weren't, then why is it necessary to even have a lawyer? And ever notice how lawyers specialize? Try asking a lawyer about something outside their speciality. "I don't know about that, I can barely keep up with the law in my one very small specific part of the law I work with 40+ hours per week."
"An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. An assault is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or by both the fine and imprisonment."
As stated by someone else, the first clause alone could take hours to decipher. "An assault is an unlawful attempt..." Well, it wouldn't be illegal if it were a lawful attempt. That's what we are there to look up. So does that mean that lawful striking is not assault, while unlawful striking is? And if so, what is the manner in which unlawful is defined? Can you spank your child, but not a neighbors? Can the cops strike someone in the course of arresting them? What about a regular person making a citizen's arrest (which in Texas, is nearly indistinguishible from a real one)? Wouldn't boxing be an assault? Or is that excluded by the "unlawful attempt" exclusion?
If you think that is all perfectly clear and that there exists no case law on those first 6 words, then we can look at the rest, but I'm guessing that there have been hundreds of hours of official time spent on those 6 words alone. But, with "case law" being as official as the written law and completely inaccessible to the average person, how could anyone ever know?
Learn to love Alaska