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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.'"
Sounds like the piece should be called "Ohm's Law".
Disclaimers: I am a "techie" (whatever the hell that means). I do not pirate or violate copyright or IP laws to my knowledge. I am not a lawyer.
Why do I care about this? This confusingly assuming post is trying to say that techies are so stupid that they can only comprehend there being one piece of evidence in a trial and they think that if they cast doubt on this one piece of evidence then the accused is in the clear. I know this isn't true. If I prove that a screenshot of an IP address could be photoshopped yet there are logs upon logs provided by the ISP backing this up, I have done little if anything.
So draw a Venn diagram of all evidence (shadow-of-a-doubtable evidence unioned with unshadow-of-a-doubtable evidence) and show that if there exists any evidence outside of the shadow-of-a-doubtable circle than you're boned. That was essentially the only point you had in your windy post, correct? What else was there? A lesson on how police can opt to legally collect information regarding a case?
Thank you for the world class revelation, Paul. And also thank you for the imagery of "techies" being bumbling buffoons aping Perry Mason in their dreams. Perhaps my father was on to something when he tried to teach me that for all lawyers that exist none of them have any interest other than money and sucking the blood out of other people.
My work here is dung.
You mean the ones the Florida Highway Patroll pioneered ignoring back in the 80s, and which are now routinely ignored by law enforcement agencies nationwide? Trust me, I worry about those legal standards all the time...
Difference between them and us?
If you were blocking sigs, you wouldn't have to read this.
IANAL
YANAL
then who the hell is a lawyer?
TWTHIAL?
WWJD?
JWRTFM!
*I post because I care
If Slashdot were chemistry it would look like this:Cadaverine
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
Y not?
I came here for a good argument
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.
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
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.
... 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.
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]
The problem I have with any grouping is that it always degenerates to stereotypes. And before you know it, you are the stereotype, simply because you're grouped with those people. I'm not saying that there are not lawyers that are not sharks, and that there are not techies that teach, but that because of these assholes in each camp along with the stereotype, everyone in that group carries the blame.
This is all fine if made in good humor, but when it gets personal, or taken too far, the result is enemies and flaming rather than meaningful discussion. Simply put, there is no discussion if either side or both sides choose to close their minds to criticism.
Keeping your nose clean doesn't always work. If they have enough suspicions the police (or the RIAA, whatever) will do their best to nail you to the ground, which includes all the above.
As you mentioned: "the old lady who had probably never even listened to an mp3 in her life could probably attest to the pain"
Innocence is no defense against having your life ruined by invasive investigation, reputation-destroying accusation, and many other such things.
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"
(Shameless plug for my own GPL paper. With good examples! I send it to my clients all the time. Bottom line: the GPL is not simple. And this doesn't even include the v.3 stuff.)
Today's Sesame Street was brought to you by the number e.
OK, i'll bite.
I'm not a lawyer, I'm a computer scientist, but you can be damn sure that I'm going to give MY lawyer all the ammunition I can to defend me.
I'm going to have logs that "prove" I didn't do the crime.
I'm going to have "forensics" that "prove" my computers did not have the offending data in question.
I'm going to have hidden encrypted volumes 12-ways to Sunday - good luck getting to those without the NSA's help, or after my attorney tells me not to incriminate myself.
What most of my friends, who are attorneys, tell me is that law-enforcement is generally incompetent when it comes to investigating a case. Collecting evidence in a LEGAL manner is a complex and difficult process. These guys that barely made it out of the academy aren't lawyers and they will fuck it up. A good attorney will find a way to make the prosecution's evidence inadmissible.
Unfortunately, law is a complex thing. Gone are the days when the common man could defend himself. Today it's fight fire with fire.
-ted
No, he concluded that the article writer is an idiot because the writer made stupid assumptions.
Doing some simple math with those statistics, they tell us that if you don't plead guilty, there is a 70% chance you will get off. (Either the charges are dropped, or the DOJ loses in the courtroom.)
From those stats, I'd say it is possible our justice system is fairly healthy.
SirWired
I'm a lawyer, and I'm getting a kick out of these replies, etc.
A technique that defence lawyers use is to attack the legitimacy of the gathering of the evidence. Succeed there, and it all becomes inadmissible, and the prosecution fails.
Never mind your fucking Venn diagrams.
That, I believe, settles the matter.
I hate my flatmate
The JD is a doctoral degree.
how to invest, a novice's guide
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.
Do. Not. Talk. To. Cops.
Part 1: http://www.youtube.com/watch?v=i8z7NC5sgik
Part 2: http://www.youtube.com/watch?v=08fZQWjDVKE
This takes an hour to watch, but well worth your time. In these videos a lawyer and then a cop explain very clearly why talking to cops never works in your favor. Watch it. Learn it. Live it.
As far as the article is concerned: He is bringing up old news that being put through the legal wringer will cost you time, money, and reputation in the community that you can not get back - even if you are innocent and/or found innocent. The best bet is to not do the crime (though if you watch the videos you will see that it is just about impossible to avoid breaking all laws).
Good luck.
Never mind your fucking Venn diagrams.
!?
*squints his eyes*
You just made a powerful enemy.
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...?
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.
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
Two of the Roman Catholic priests in the town I used to live in were Father John Lennon and Father Michael Jackson. To their credit, they never did put on the seemingly inevetable and ultimately disappointing fundraising concert double-bill.
Quidnam Latine loqui modo coepi?
While what you say is consistent with the rules of formal logic, that really doesn't matter. The question is, is it reasonable to believe that someone else put that file on your computer, or that a file named "Sympathy For The Devil.mp3" is not the Rolling Stone song. At first glance, I'd say that those assertions are not reasonable. Therefore, your defense will need to show that they are reasonable explanations, by providing evidence that there was an intrusion or that you have a time stamped copy of the file that has something other than that particular song.
You are proving the article author's point - geeks tend to focus on the problem as if it was a formal logic problem, when it is much more.
"As God is my witness, I thought turkeys could fly." A. Carlson
As always, XKCD has already covered this. ;)
And I'd like to be the king of all Londinium and wear a shiny hat.
PROTIP: Memorizing Latin phrases doesn't actually mean you didn't manage to completely miss the point of the post by quoting the example of his point, then reiterating the point he was trying to make.
It's been a long time.
So it's not reasonable to believe that "Sympathy For The Devil.mp3" is an audiobook of Holly Lisle's novel by that name? The title enough, combined with the fame of the song, is sufficient to convict beyond reasonable doubt? That's harsh.
All this persecutor in the YANAL blog is saying is that there ain't no justice, and it doesn't matter how much evidence there is, innocent or guilty they can fuck up your life. That's true, but it doesn't really take a lawyer to know it -- or a non-lawyer not to.
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.