There's a Problem In the Silk Road Trial: the Jury Doesn't Get the Internet

sarahnaomi (3948215) writes "The trial began this week for Ross Ulbricht, the 30-year-old Texas man accused of being the mastermind behind the dark net drug market, Silk Road. But as the jury began hearing testimony in the case, it was clear the technological knowledge gap would impede the proceedings. Judge Katherine Forrest said right off the bat when the case began that "highly technical" issues must be made clear to the jury. "If I believe things are not understandable to the average juror, we will talk about what might be a reasonable way to proceed at that time," she said. After the first day of proceedings, Forrest told the prosecution to be more clear with explanations of concepts central to the case, noting she was unhappy with its "mumbo-jumbo" explanation of the anonymizing service Tor. She also requested all readings of chat transcripts include emoticons."

Comments

Peers?

[Anonymous Coward]

If we're to believe that Ross Ulbricht is really a internet and tor mastermind surely a Jury of his peers would require some sort of technical experience. While this might not require someone to be a professional, it should require some level of subject matter experience. It does make me wonder, what other "for cause" jury selection criteria was also avoided?

Re:Peers?

[bws111]

Everyone in the US is a peer of everyone else. It has NOTHING to do with your 'profressional' status or any other such bullshit. Or do you think a banker accused of stealing from his customers should only be judged by other bankers? An accused rapist should only be judged by men?

Jury of your peers

[mbone]

Maybe, in cases like this, the notion of a "jury of your peers" should be extended to include technical competence. In other words, instead of asking the prospective jurors about their views on the death penalty, they could ask about their knowledge of DNS or BGP.

Re:Jury of your peers

[Enry]

So who serves on juries of those who are mentally unstable, or politicians (or am I repeating myself?)

Re:Jury of your peers

[ledow]

Don't think of the easy solution, think of the worst-case scenario.

For instance, now you have gun-cases juried only by people knowledgeable about - and presumably pro - weapons. Or finance cases juried only by people who work in finance. Or cases against the judiciary juried by the judiciary themselves.

The idea of a jury is to be "the man on the street". If you can't explain the crime committed to the man on the street, when he's forced to do nothing BUT listen to you for weeks on end, then maybe that law is too complex to enforce anyway.

Juries are, and always have been, required to understand things way out of their normal scopes. Any half-decent defence/prosecution will get them to the level of knowledge they need quickly. Imagine juries on complex financial fraud cases, or in cases steeped in the interpretation of thousands of separate by-laws. It has to be done, it can be done, and if you can't do it then you won't find much of a career as a lawyer.

If you can't explain the crime committed in simple enough terms for average people to get their head around within a matter of weeks, how do you expect average people to stay on the right side of the law in their daily lives?

Tor can be explained quite quickly. I could get a bunch of schoolkids to understand it in an hour, with zero computing knowledge at all. To get that into the heads of a bunch of non-computing 60-year-olds will take longer but not THAT much longer.

And, at the end of the day, even the judge has to understand what case they are trying. If they don't, they can't possibly guide the jury if they are ever required to.

If you or your opposition can't explain why what you did was, or was not, illegal in a matter of weeks to the majority of a bunch of average people, then the case is so grey-area that it's likely to collapse anyway.

Re:Jury of your peers

[Richard_at_work]

There is currently a big debate within legal circles in the UK as to what to do about juries in complex fraud cases, where its near to impossible to explain to a lay person actually was, and how it was conducted, because they have no understanding of major international financial markets.

One proposal is to have a board of judges which are well versed in the financial profession sit in such cases without a jury, which understandably makes some people uneasy.

Jury-less cases have been heard in the UK as far back as the 1970s when related to terrorism offences, where the offence was of a complex type (eg, financial in nature - funding and money laundering for terrorist groups in Northern Ireland) or where there has been a history of proven jury tampering.

A proposal gathering speed is to include level of education and area of employment in jury selection, so rather than a completely random jury you do indeed get a jury which has a greater understanding of the specifics involved.

Re:Jury of your peers

[Anonymous Coward]

where its near to impossible to explain to a lay person

If there is a law that the majority of people do not understand - either because it is too complex to understand (unlikely) or because nobody is good at explaining it (more likely) - then there is a problem with the law. I'd go further an argue that if a person of reasonable intelligence cannot defend themselves, i.e. if a person has a better chance of winning a case depending on the lawyer they pay for, then the law cannot deliver justice.

The exceptions to jury trial that have existed in the UK are usually for the sorts of cases where either the prosecutor (e.g. "national security") or the defendant (rich banker) has an especial interest in keeping the general public out. They use the excuse that Mere Mortals Cannot Understand, but the excuse is bullshit, and is more about Mere Mortals Must Be Shielded From Reality (Because Otherwise They'd Get Pretty Fucking Pissed).

Re:Jury of your peers

[Richard_at_work]

If there is a law that the majority of people do not understand - either because it is too complex to understand (unlikely) or because nobody is good at explaining it (more likely) - then there is a problem with the law.

You are assuming the problem is with the law, when in many cases the problem is not with the law but rather with what the defendant did to break the law.

Its very well to say "trying to gain monetary reward through dishonesty is illegal" rather than having complex fraud laws - but you still have to explain to a jury just how that ponzi scheme that spans 15 shell companies, 8 futures markets, 4 currency markets and 32 bank accounts and involves moving pennies around several million times a day or purchasing 30 million shares in various companies for 6.25 seconds on the hour constitutes an illegal financial construct which results in fraud.

Re:Jury of your peers

[Chris Mattern]

In fact, "jury of your peers" is British, not American. It means commoners get tried by a jury of commoners, whereas a lord is tried by jury of lords--usually the entire House of Lords convened as a jury, in fact. That happened very rarely; one can see a fictional account of how such a trial would be conducted in Dorothy Sayer's Clouds of Witnesses. Even in Britain, this is now obsolete, as the old legal distinctions of subject, commoner and lord are largely abolished; one is simply a British citizen, now.

Re:Jury of your peers

[anagama]

Your thinking is what fuels the divide in punishments between the thug who mugs a person for $63, and the Wall Street bankster who mugs the nation for trillions. Your inner-chimp can understand instinctually why mugging a person is wrong, and why the law should be against it -- the complex multi-layered fancy suit wearing type of mugging however, is completely incomprehensible on that instinctual level.

Emoticons make sense

[Enry]

They help go toward intent and mood of the conversation. There's a difference between "I'll kill you" and "I'll kill you :)" as part of a conversation.

Re:Jurors

[bluefoxlucid]

It's not that hard to explain this shit to people. I explain asymmetric encryption and routing to accountants all the time; it just takes some 20-30 minutes. Knowledge transfers surprisingly quickly.

Re:A lot of circumstance and some suspicious exper

[houghi]

I know a lot about Linux, but I do not work with Linux. However if there would be an issue at the department where I work and it would need some knowledge of Linux, I would be the go-to guy.

For all I know he used to work as an IT person and used TOR against the will of his employer and the only job he could get was as a border control person.
Or he hinks doing IT as a job sucks. Or ...

I know a LOT of people who have knowledge of other things outside their field of work. That does not mean anything by itself.

ah the thomas acquinas offense.

[nimbius]

The idea being if its complicated enough, the prosecution can just gloss over to the fireworks like 'terror' 'drug' 'kingpin' 'murder' and insist the jury just have faith because the whole damn thing is too hard to understand. to think that the united states government would be so contemptuous of its own rule of law that it would be willing to overtly insult the intelligence of not only a jury but a judge is nothing new. Ferguson jurors have a lifetime ban on ever discussing the details of the trial, for example. And the reason guantanamo bay still exists is because we demanded its closure, and legislated its perpetual existence by preventing the incarceration or trial of prisoners in american courts.

The general idea is this: admit defeat and go to jail, but fight against injustice and youre now waging a war of dissent against an ideological construct. Expose too many glaring flaws in the rule of our law and the arbitrary if not meaningless nature of our criminal justice system becomes too apparent to sustain. The prosecution at this point is a hail mary, and suggests that if the defense dissects the argument too much the prosecution may not have a leg to stand on for lifetime offenses like kingpin and RICO charges which are arguably being pursued as a form of biblical retribution. the notion that someone who once bested the FBI can walk after 6-10 years, and doesnt exist as a member of the cloistered plutocracy, flies in the face of American justice.

Re:Jurors

[DarkOx]

Nobody outside of IT is going to have a clue how tor works.

Plenty of people have hobbies and interests outside of work. Lots of tor knowledge would be hard but you probably don't really need that you just need someone who knows about ip and routing, and tunneling which are common. The litigators should be able to explain the necessary elements of tor to someone with at least that much background. If they can't I'd say they don't understand themselves and therefor haven't got a case.

Should you limit the jury selection to IT professionals?

Limit to IT professionals no but I think a "jury of your peers" really ought to mean people with some knowledge about the tools used in the crime at least as much knowledge as the defendant is supposed to possess. Rather than what most voir dire process seem to do to day which is select for people who know nothing about the issue involved.

If you ran a construction firm and we being prosecuted for fraud or something after a bridge collapse don't you think the jury should have members that know somethings about materials science and masonry? I think that would be fair.

Re:Jurors

[jythie]

Well, they only need to understand it to a certain degree. One can grasp the basic ideas without needing in depth technical understanding. There are probably half a dozen videos on youtube that explain it in lay terms well enough for trial purposes.

Asked That All Chat Transcripts Include Emoticons

[Greyfox]

And the DA was like :-\

Re:Jurors

[TWX]

Ambiguity is safer for the defense, not the prosecution. The prosecution has to demonstrate that a crime occurred and how that crime was carried out, beyond a reasonable doubt. If the prosecutor cannot describe, beyond a reasonable doubt, how the crime was conducted then the prosecutor will probably fail to get a conviction.

Lots of recent trials that required expert witnesses or forensic investigtators to ask the jury to believe them simply because of their credentials fell flat. The Casey Anthony trial is an example- the pathologist described the unique smell of death in the defendant's trunk, but obviously as she was acquitted they did not find his testimony compelling enough.

By contrast there's no real-world analog in this case; they can't have an investigator describe their gut feelings at smelling death. They have to demonstrate how, despite a service meant to help anonymize people, they found him, and the processes through which they were able to do so.

Re:Jurors

[Archangel Michael]

A lot of IT people don't know how IT works. Because a lot of IT people aren't really in IT, but are managers of change. Very few IT people follow enough of the IT world to be able to have divergent conversations spanning various IT related issues.

Hell, I've met "Networking" professionals who don't have a clue about the OSI model and what it means. To them networking is plugging a bunch of switches together. These people couldn't build a patch cord to save their life.

And quite frankly, a jury of his peers doesn't really mean high school dropouts.

Re:Jurors

[ShanghaiBill]

But it doesn't help when the other side benefits from obfuscation and ambiguity and essentially trying to screw up your understanding.

If the prosecution tries to obfuscate, the judge can sanction them, and the jury can see they are being treated like fools. The basics of this case are not even technical:
1. Some people set up a marketplace where consenting adults could exchange goods and services.
2. The government thinks that should be a crime.

not just the jury

[cellocgw]

It's always seemed to me that it is critical that the judge be, if not expert, at least well-educated in areas of science, philosophy, religion, etc. which are pertinent to the case. How can a judge properly rule on admissibility of evidence (e.g. all those cases involving data sent through an open home router) or validity of objections if he doesn't comprehend the technological or cultural situation?

The Only Concept Juries Need To Understand

[Tokolosh]

Jury Nullification

http://www.vocativ.com/underwo...

Re:The Only Concept Juries Need To Understand

[Richard_at_work]

... Jury nullification seems to be massively overstated here on Slashdot - another meme that just wont die?

Re:The Only Concept Juries Need To Understand

[Anonymous Coward]

No, we're just more logical. I'm not a libertarian, per se, but I understand that jury nullification is a check on abuse of power. It has downsides (see the history of the South), but it also is an escape hatch for an draconian government. Our constitution guarantees you a trial by your peers (i.e. you are supposed to be judged by the community, not the government) and if that community finds you innocent then away you go. We swept jury nullification away because trials by "peers" weren't working so well with race issues and because the government was unhappy when the community decided their overzealous laws weren't happy.

The right to nullify still exists, but juries are not allowed to be informed of it. Instead, they are told they must follow the law regardless of their feelings. The net result, sadly, is that bad laws passed by an ignorant legislature, corporate interests, jailhouse employers, etc. have no check or balance other than repeal or a court striking them down. If you've ever been to a federal courthouse, you would understand why that's funny. Federal prosecutors get a 98% conviction rate for a reason -- and it's not because they're just that good. I can promise you that.

Re:Jurors

[bws111]

They don't just 'draw names at random'. The lawyers, in front of a judge, get to question the prospective jurors. Someone with an IQ of 50 is not going to be selected.

Re:Jurors

[bluefoxlucid]

An accountant has no frame of reference for this shit. Education doesn't magically make you understand things; you have to have something to attach it to. Accountants are not mathematicians and do not have any theoretical basis to understand the security concepts behind any form of encryption (plaintext and ciphertext analysis, key exchange protocols, etc.) or routing protocols.

What education do you think an accountant has which makes it easier for them to understand that, for example, a computer doesn't really use the IP address of the default gateway, but rather just sends a message out on the local segment asking what MAC address the interface using that IP address has, and then puts that MAC address on packets addressed to things outside of the network? That's how routing works. Computer 192.168.150.28 is not on 192.168.100.0/24, so 192.168.100.30 writes a packet to 192.168.150.28 and puts the MAC for the router on it. The router receives the packet, looks at the IP, says, "That's not me," and checks its routes to see where to send it. Hijacking a MAC involves just spamming out ARP responses telling the local segment that your MAC is associated with the router's IP, so those packets are sent to you--then you forward them on with the router's MAC.

You can go over this slowly with someone--anyone--and catch where they're struggling, and work through it with them. It's universally easy, if you're patient. It works well on small groups; less well on large groups, but well enough that entire books are written on technical subjects to teach the uninitiated to be skilled professionals. Many of us learned computer programming from books. Dealing with 12 people face-to-face is easier: you can go slowly, and pause for questions when someone seems confused.

Re:Jurors

[Geoffrey.landis]

Ambiguity is safer for the defense, not the prosecution. The prosecution has to demonstrate that a crime occurred and how that crime was carried out, beyond a reasonable doubt. If the prosecutor cannot describe, beyond a reasonable doubt, how the crime was conducted then the prosecutor will probably fail to get a conviction.

No, that's not true-- formally, they have only to show that a crime occurred. (That's called corpus delicti-- which, despite popular misconception, does not require a corpse.)

However, what they do have to show is how they know that the defendant is the one who did the crime. If understanding how they know this means they need to explain an internet investigation unmasking Tor anonymization, they may very well need some technical explanations.

Re:Jurors

[DNS-and-BIND]

Have we considered that the Casey Anthony jurors were total fucking idiots? To have perverted justice in this way?

(obviously I don't mean this if they were people of color

Re:firsts

[fisted]

You don't "get the Internet" when you get to access it. You don't "break the Internet", when your POS home "router" fails. Finally, you don't "delete the Internet" when you remove the shortcut to your web browser.
Have I forgotten something else you're likely to say?

English noobs

I'm not sure whether it's okay by /.'s terms of use to share an account between multiple persons, but anyway: Pleased to meet you.

Re:Jurors

[FacePlant]

Probably at Monoproce.

Re:Jurors

[locofungus]

It's very hard to explain "this shit" to people when there's someone else equally knowledgeable as you determined to explain why your explanation is wrong.

Asymmetric encryption. Do you explain P vs NP, why NP-Complete is almost certainly not in P but the problems that asymmetric encryption are built on aren't known to be either NP-Complete or P.

NP is a decision problem - but encryption isn't a yes/no problem. How can problems that only have yes/no answers be used to encrypt?

Muddy the water some more - PRIMES is in P. Do you really want to have to explain the difference between constructive and existential proofs while someone is interrupting every time you say anything that isn't 100% accurate.

You've only got to look at the climate change "debate" to see this effect in force. Climate scientists are playing a game of whack-a-mole and the general public cannot tell which side to believe. There are always questions and doubts that can be raised - the mark of a good scientist is asking the questions for which the answer is interesting. The mark of a good defense attorney is raising questions for which cast doubt on the reliability of the witness. The role of the judge is to make sure that the questions that the lawyer asks is relevant to the case - and that's where it gets hard when you've got two experts in their field debating something and one (or both) has an agenda.

Re:Jurors

[Registered Coward v2]

If you ran a construction firm and we being prosecuted for fraud or something after a bridge collapse don't you think the jury should have members that know somethings about materials science and masonry? I think that would be fair.

Not necessarily, it would depend on your defense. You may not want someone who understands civil engineering because they may disagree with the facts you present and be able to convince the other jurors to ignore them or to downplay them. You have weakened your lawyer's ability to tailor the narrative to your advantage and thus increased the risk of you losing. Having a jury your expert can educate and whose testimony supports your lawyer's narrative would be more beneficial. As anecdotal evidence, I was on a jury where the defense's main point was that roadside sobriety tests are wrong 25% of the time and thus there was reasonable doubt whether her client was guilty of DUI. Unfortunately he failed several different tests a total of 8 times and .25**8 is a very small number indeed. Had she kept the jurors who actually knew how to calculate probability off the jury she may have won. As it was, she lost before we even started deliberations, all we had to do was explain to our fellow jurors what she had really proven by questioning the test's accuracy. Lawyers want to educate the jury, not have an educated jury.

Re:Jurors

[HornWumpus]

Been counters just decided there was no material difference between actually understanding and faking it so you would stop babbling at them.

Did you test them?

Re:Jurors

[Actually, I do RTFA]

What education do you think an accountant has which makes it easier for them to understand that, for example, a computer doesn't really use the IP address of the default gateway, but rather just sends a message out on the local segment asking what MAC address the interface using that IP address has, and then puts that MAC address on packets addressed to things outside of the network?

Well, accountants by trade are:

1. Comfortable with identifying things by numbers instead of names
2. Familiar with the use of numbers to denote things increasing specificity as you approach the ones place (so the /24 is syntactically different, but not conceptually)
3. Able to pay attention to a solid block of information on procedures without getting distracted.

Re:Jurors

[i work on computers]

What education do you think an accountant has which makes it easier for them to understand that, for example, a computer doesn't really use the IP address of the default gateway, but rather just sends a message out on the local segment asking what MAC address the interface using that IP address has, and then puts that MAC address on packets addressed to things outside of the network?

I'm claiming that an accountant with a 4 years of college and possibly a masters degree has a better chance of understanding a complex mathematical system than someone that did not graduate high school. One of the major reasons you go to college is to become a more critical thinker in and out of your field. Or do you think people become less able to understand complex concepts because they went to college?

Re:Jurors

[phantomfive]

Limit to IT professionals no but I think a "jury of your peers" really ought to mean people with some knowledge about the tools used in the crime at least as much knowledge as the defendant is supposed to possess.

If you take this idea to its logical conclusion, you would have only police officers on the jury for crimes committed by police officers. Do you see any problem with that?

Re:Jurors

[lister king of smeg]

this is why slashdot needs a +1 sad but true tag

Re:Jurors

[idontgno]

That's the secret: the side that uses a car analogy secures the victory.

Re:Idiocracy Rules.

[Whorhay]

Your explanation leaves something to be desired, it never points out what the crime was, who the victim was and how the perpetrator escaped punishment.

Jury nullification happened when a white person was brought to trial for a crime against a black person, that the jury of white people then refused to find the accused guilty, or actaully acquitted them.

I'm sure there have been other more positive instances of Jury Nullification, but the racially charged and obviously unjust misuse is what gets trotted out as to why it shouldn't be allowed. If I am not mistaken a judge can rule a mistrial when very obvious jury nullification happens in a case, but historically the judges were just as prejudiced as the juries they oversaw.

Re:Jurors

[Ingenium13]

The best explanation of asymmetric crypto (not taking authentication into account) that I've seen is mixing two colors of paint to create a third color. Each party can derive the other party's color by "subtracting" their color from the shared mixture. But an intermediary has no way of determining which two colors were mixed. This is an example that pretty much anyone can understand.

Re:Jurors

[omnichad]

Limit to IT professionals no but I think a "jury of your peers" really ought to mean people with some knowledge about the tools used in the crime at least as much knowledge as the defendant is supposed to possess

I don't think you know how messed up our courts are. You're not supposed to rely on your pre-existing knowledge of what tor is or how it works. You are supposed to work with the definition given by the expert witness.

Re:Jurors

[HornWumpus]

Sigh. Twisted pair ethernet is limited to 100 meters per cable run.

Somebody wanting to run a 900 foot patch cable through conduit is going to be unhappy if he succeeds.

A competent IT person would save him/her from shooting themselves in the foot. Have you ever pushed cable down conduit? How about more than an eighth of a mile of conduit?

Please stop using 'meme' for everything. It's too new a word to have its definition decimated.