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You Are Not a Lawyer 693

Posted by kdawson
from the help-in-thinking-like-one dept.
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.'"
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You Are Not a Lawyer

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  • Ohm's Law? (Score:5, Funny)

    by loshwomp (468955) on Tuesday February 10, 2009 @01:45PM (#26800855)

    Sounds like the piece should be called "Ohm's Law".

    • Re:Ohm's Law? (Score:5, Insightful)

      by Anonymous Coward on Tuesday February 10, 2009 @02:05PM (#26801249)

      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.

      • by FalseModesty (166253) on Tuesday February 10, 2009 @02:23PM (#26801645)

        (2) Academic lawyers generally have a slanted view on the world

        As opposed to ACs?

      • Re:Ohm's Law? (Score:5, Insightful)

        by Anonymous Coward on Tuesday February 10, 2009 @02:24PM (#26801659)

        (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.

      • by Roger W Moore (538166) on Tuesday February 10, 2009 @02:57PM (#26802421) Journal

        A couple of considerations...

        Here is one more:
        (4) If you are not in the US, US law does not apply.

      • Re:Ohm's Law? (Score:5, Insightful)

        by winkydink (650484) * <sv.dude@gmail.com> on Tuesday February 10, 2009 @03:01PM (#26802483) Homepage Journal

        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.

      • Re:Ohm's Law? (Score:4, Informative)

        by Beardo the Bearded (321478) on Tuesday February 10, 2009 @03:03PM (#26802509)

        As part of an engineering education, you take one course in law. Basically, it's an overview of contract law, the legal system, various appeals you can go through, etc. The idea is to make you realize that lawyers go through as much or more schooling as engineers do (often more), they go through an articling phase, and they're professionals at what they do.

        You wouldn't get a lawyer to design a bridge, so don't try to get a "techie" to answer legal questions.

        If you've got a legal question, ask your attorney. If you don't have one, get one on retainer.

        If the police ask you questions, the only appropriate answer is "My lawyer's name is ____."

        • Re:Ohm's Law? (Score:5, Interesting)

          by jp10558 (748604) on Tuesday February 10, 2009 @04:16PM (#26803847)

          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?

          • Re:Ohm's Law? (Score:5, Interesting)

            by vux984 (928602) on Tuesday February 10, 2009 @04:28PM (#26804043)

            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.

            • Re:Ohm's Law? (Score:5, Informative)

              by snspdaarf (1314399) on Tuesday February 10, 2009 @05:28PM (#26805047)
              You do the same thing you do when you need a doctor and are new in town. You ask people, you look at the specialty of the professional in question, and you call for an appointment. You do not have to have a lawyer on retainer at all times. Many times a first visit is free, so if you get a bad vibe from a lawyer, or don't feel like they are listening to your concerns, try another. While I would not want a patent lawyer defending me in criminal court, if I was arrested and the only lawyer I knew was a patent lawyer, I would call him and ask for help getting the right kind.
      • by cmholm (69081) <cmholm AT mauiholm DOT org> on Tuesday February 10, 2009 @03:19PM (#26802783) Homepage Journal

        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 [hackaday.com] at Liberty University [wikipedia.org] - 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.

      • Re:Ohm's Law? (Score:4, Insightful)

        by Ironica (124657) <pixel.boondock@org> on Tuesday February 10, 2009 @04:59PM (#26804545) Journal

        A couple of considerations:
        (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.

        ...which is relevant in the trial. What he's talking about is BEFORE that, the investigation has a much lower bar on what they need to prove that they can go rifling through your stuff.

        "A good lawyer" isn't going to do you any good at 10:00 on a Tuesday night when the police knock on the door with a warrant in hand, ready to arrest you if you don't cooperate right then.

    • by lastchance_000 (847415) on Tuesday February 10, 2009 @02:08PM (#26801335)

      I'll start a feature called "You are not a techie."

      My first entry? Make sure your webserver/webhost is up to snuff before letting /. loose on it.

      • Re:Ohm's Law? (Score:5, Informative)

        by TheRedSeven (1234758) on Tuesday February 10, 2009 @02:14PM (#26801463) Homepage
        Since it's already /.'ed, here's the Google Cache [209.85.173.132] so you can at least read the text.
        • Re:Ohm's Law? (Score:5, Insightful)

          by gnick (1211984) on Tuesday February 10, 2009 @02:41PM (#26802049) Homepage

          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.

          • Re:Ohm's Law? (Score:5, Insightful)

            by b4upoo (166390) on Tuesday February 10, 2009 @03:09PM (#26802625)

            You left out expensive - A huge expensive pain in the ass.

          • Re:Ohm's Law? (Score:5, Insightful)

            by rgviza (1303161) on Tuesday February 10, 2009 @03:46PM (#26803297)

            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

    • by Sponge Bath (413667) on Tuesday February 10, 2009 @02:18PM (#26801539)

      Years ago I saw a US Air Force training document refer to "Ohm's Three Laws".
      V=IR, I=V/R, and R=V/I. :P

    • Re: (Score:3, Funny)

      by 3dr (169908)
      I think he's going to get a lot of resistance fighting the current of Techie Law Knowledge.
  • by eldavojohn (898314) * <eldavojohnNO@SPAMgmail.com> on Tuesday February 10, 2009 @01:46PM (#26800883) Journal
    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.
    • by 0racle (667029) on Tuesday February 10, 2009 @02:07PM (#26801329)
      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.
      • Re: (Score:3, Interesting)

        by Anonymous Coward
        No, he concluded that the article writer is an idiot because the writer made stupid assumptions.
      • by fm6 (162816) on Tuesday February 10, 2009 @02:45PM (#26802129) Homepage Journal

        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.

    • by Austerity Empowers (669817) on Tuesday February 10, 2009 @02:11PM (#26801403)

      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]

    • by TenDollarMan (1307733) on Tuesday February 10, 2009 @02:44PM (#26802109) Homepage

      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.

    • by LrdDimwit (1133419) on Tuesday February 10, 2009 @02:54PM (#26802355)
      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.
      • Re: (Score:3, Funny)

        by russotto (537200)

        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.

        Hans's plan:
        1) Kill wife
        2) Hide body where cops can't find it
        3) Throw up smokescreen in court
        4) Don't testify at trial in such a way that makes me look like a murdering loon.

        You'd have thought 1, 2 and 3 were the hard ones, but sometime

    • Re: (Score:3, Insightful)

      (shadow-of-a-doubtable evidence unioned with unshadow-of-a-doubtable evidence)

      In case you haven't noticed, the standard for a criminal trial is "beyond a reasonable doubt and to a moral certainty." In a civil case, it's "the preponderance of evidence," which is an even lower standard. Nowhere in American law is there a standard of "beyond the shadow of a doubt." I'm not saying your idea is wrong, just that you're not expressing it correctly.

  • by Max Threshold (540114) on Tuesday February 10, 2009 @01:46PM (#26800885)

    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...

    • by Lumpy (12016) on Tuesday February 10, 2009 @02:05PM (#26801275) Homepage

      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.

      • by FalseModesty (166253) on Tuesday February 10, 2009 @02:31PM (#26801815)

        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.

        Wow. Just seriously paranoid, or did you commit lots of crimes?

        • by Lumpy (12016) on Tuesday February 10, 2009 @02:50PM (#26802267) Homepage

          Friends that got nailed a LOT and watched their pain. Also I had a brother that got nailed and was ground up through the system.

          when you see it happen and pay attention, you know what happens and what to do to stay away from it. I also was a big protester in college.. I was never arrested because I would not be stupid and dress like the others protesting. I always looked like a innocent bystander on purpose..

          Once when asked by a cop why I was holding a sign I said, "some cute chick over there gave it to me, I dont want to drop it and litter" He took the sign as a favor to me.

          • Re: (Score:3, Insightful)

            by Anonymous Coward

            Once when asked by a cop why I was holding a sign I said, "some cute chick over there gave it to me, I dont want to drop it and litter" He took the sign as a favor to me.

            Glad to see you're standing by your convictions.

      • by Paracelcus (151056) on Tuesday February 10, 2009 @02:48PM (#26802221) Journal

        Encrypt everything, hide everything, obfuscate everything, always assume that THEY are out to get you. Keep your bags packed at an alternate (undisclosed) location, keep some cash hidden and have an extra passport ready (always lose the first one they send you) in case they confiscate your first. Always pay cash, wear a broad brimmed hat and large dark glasses in public, grow a beard (you can quickly change you appearance by shaving). Use anonymous pay as you go cellphones or be careful what you say over the phone, keep your phone turned off and the battery removed.

          Remember it ain't paranoia if they really are out to get you!

      • by MegaFur (79453) <<moc.nzz.ymok> <ta> <0dryw>> on Tuesday February 10, 2009 @03:34PM (#26803079) Journal

        Note to Lumpy: In the following post, anyplace that I used the word "you", this is not meant to apply to you, Lumpy. I agree with what you said. I just wanted to "mee too" with my own version. I agree with you, and with the original "You Are Not A Lawyer" guy that there are far too many folks out there that don't get how the legal system really works.

        I wanna make a few points:
        1. It's not that the police/judges/lawyers hate you, it's just that they really *don't* care about you *at all*. I mean you really are just another number to them. The good ones out there, they care that you get the legal definition of a "fair" trial, but that's all. And, btw, it's entirely possible for you to have a legally defined "fair" trial and for you to still get totally screwed over and railroaded. If you don't believe this, you're living in a fairy land. I hope fairy land is still working for you when you get locked up in Oz.

        2. On point 5: yes, I totally agree.
        3. On point 6: If you're going to do something illegal, first BEFORE you start, find out exactly what the consequences and eventualities will be for if you *do* get caught--because it's impossible to be absolutely sure that you can avoid being caught. See my earlier point about fairy land.
        4. On point 7: I agree. This almost, but not quite, guarantees that you won't be going to jail for anything. (You could still get falsely accused and wrongfully imprisoned. Please don't talk to me about how that doesn't bother you because then, in the end, you'll make a fortune off the movie rights or something. The plain fact is that spending five years in prison is going to fundamentally change who you are and what you're like for the rest of your life.)
        5. If the police ever bring you in for questioning on anything, don't talk to them without a lawyer present. I don't care how innocent you are, and I don't care how polite the police are. If something really bad happened, it is the police and prosecutor's job to eventually hold someone accountable for the bad thing that happened. If no other more "worthy" suspects pop up, they might just choose to put it on you. This can happen even without the police being corrupt, and that's why there's that pesky rule about you being allowed to have legal council present. Of course, even that is no guarantee that you won't get falsely accused and wrongfully imprisoned, but if you go talking to the police sans legal council you are seriously screwing yourself over. Don't be a dope. Demand a lawyer.

        In summary: The legal system isn't really out to get you, but it's much bigger than you are and it tends to be capricious and merciless--kind of like an uber-deity tripped out on mescaline and crystal meth. You really don't *ever* want to be on the wrong side of it. Because of all this, even though it isn't out to get you (most of the time), you'll be safer if you act as though it is.

  • by Rogerborg (306625) on Tuesday February 10, 2009 @01:48PM (#26800917) Homepage

    Difference between them and us?

    • Techie: If you don't know how to do what I do, then learn.
    • Lawyer: If you don't know how to do what I do, pay me $500 an hour or your children will die penniless in the gutter.
    • Re: (Score:3, Insightful)

      by Lumpy (12016)

      WE would be driving more mercedes and BMW's if we did the same thing.

      Problem is IT guys are whores. we give up our craft for free at the drop of a hat. Lawyers simply grin and make you supply the lube.

      • by JustinOpinion (1246824) on Tuesday February 10, 2009 @02:42PM (#26802071)

        Problem is IT guys are whores. we give up our craft for free at the drop of a hat.

        Whores don't give anything away for free. Sluts do.

        Techies are sluts. Lawyers are whores. Personally I prefer sluts to whores, but YMMV.

      • Re: (Score:3, Insightful)

        by jmorris42 (1458) *

        > WE would be driving more mercedes and BMW's if we did the same thing.

        Lawyers don't hide any secrets, it's all in lawbooks and much of the stuff can be found for free on the Internet. The difference is they have a trade guild that enjoys a government granted monopoly. Non members cannot practice law without the threat of prison so non lawyers quickly lose interest in expending the time required to learn the dark arcana since it can only be of passive interest. On the other hand anyone with the curios

    • Stereotypes (Score:4, Insightful)

      by tknd (979052) on Tuesday February 10, 2009 @02:15PM (#26801485)

      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.

  • IPBIC* (Score:5, Funny)

    by paiute (550198) on Tuesday February 10, 2009 @01:55PM (#26801047)

    IANAL
    YANAL

    then who the hell is a lawyer?
    TWTHIAL?

    WWJD?
    JWRTFM!

    *I post because I care

  • Talk about timing (Score:4, Interesting)

    by drhamad (868567) on Tuesday February 10, 2009 @01:56PM (#26801069)
    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.
  • YANAL (Score:5, Funny)

    by shma (863063) on Tuesday February 10, 2009 @01:56PM (#26801077)
    Y not?
  • by ruin20 (1242396) on Tuesday February 10, 2009 @01:58PM (#26801103)
    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 and this is why the RIAA will withdraw losing cases only to forum shop in an effort to push the suit again.

    The fact that all the evidence the RIAA offers shows a link to the computer AND NOT THE USER seems to be something that people (lawyers, judges) IGNORE shows they don't actually care about the FACTS. Until you start taking photos of people through their webcams as they do naughty things, or come up with a way to show exclusive use of a devise or connection, then this still happens to be evidence wrongly taken into consideration.

    • by The Only Druid (587299) on Tuesday February 10, 2009 @02:24PM (#26801665)
      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?
      • Re: (Score:3, Insightful)

        by nog_lorp (896553) *

        Well, GP has a point, considering the RIAA has made the leap from "Pirating -> Computer" to "Father's Computer -> Daughter who doesn't live with father anymore", deciding to sue the cancer patient rather than the deadbeat dad.

    • 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...?

  • Let's start our own (Score:5, Interesting)

    by MikeRT (947531) on Tuesday February 10, 2009 @02:00PM (#26801161) Homepage

    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...

  • Reasonable Doubt. (Score:5, Interesting)

    by scorp1us (235526) on Tuesday February 10, 2009 @02:02PM (#26801201) Journal

    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.

    • by elrous0 (869638) * on Tuesday February 10, 2009 @02:10PM (#26801387)

      At least people expect the cops to break down your door in the U.S. Nobody expects the...

      Oh, forget it.

    • by Darundal (891860)
      Can I get a link to where you are getting that number for the conviction rate in the US?
      • Re:Reasonable Doubt. (Score:4, Informative)

        by ya really (1257084) on Tuesday February 10, 2009 @02:33PM (#26801853)

        From the DOJ:

        Cases were terminated against 86,680 defendants during 2005. Most (90%) defendants were convicted. Of the 78,042 defendants convicted, 74,226 (or 95%) pleaded guilty or no-contest.

        • by sirwired (27582) on Tuesday February 10, 2009 @02:43PM (#26802087)

          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

          • Re: (Score:3, Interesting)

            by swillden (191260)

            Those numbers also don't show the cases in which formal charges are never actually filed, not because the cops and prosecutors don't think they're guilty, but because the prosecutors aren't sure they can establish a case "beyond a reasonable doubt".

            So, a part of the 98% conviction rate is undoubtedly due to prosecutorial conservatism. The 70% acquittal rate for non-pleaders that you cite is arguably the result of prosecutorial incompetence -- not that they failed to put everyone away but that they failed

    • by The Only Druid (587299) on Tuesday February 10, 2009 @02:27PM (#26801715)
      That logic doesn't follow. It assumes, among other things, that: (a) we ever had a lower rate (i.e. that it has 'become' anything), and (b) we're not just better at dropping cases before they go to trial where the person is innocent (which would be a good thing).
    • Re: (Score:3, Informative)

      by Firethorn (177587)

      Could be worse, Japan's [wikipedia.org] is 99.97%.

      Conviction rate comparison [wordpress.com]

      China is 98%

      The USA is listed as 65-80% because statistics are mostly state level.

      Therefore, either we're really good at identifying people, or "reasonable doubt" has become unreasonably weak defense.

      Or you're using made up statistics.

  • by DigitalSorceress (156609) on Tuesday February 10, 2009 @02:02PM (#26801209)

    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.

    • False charges (Score:3, Insightful)

      by phorm (591458)

      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.

    • by Anonymous Cowpat (788193) on Tuesday February 10, 2009 @02:36PM (#26801931) Journal

      Oh, I read the article as "technological arguments, though sound, won't stop the legal system being 100% broken."

  • LEARN (Score:4, Interesting)

    by geekmansworld (950281) on Tuesday February 10, 2009 @02:06PM (#26801279) Homepage

    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 [go.com] over spyware popups. It's time for the justice system to educate itself, not bury its head in ancient jurisprudence.

  • by sampson7 (536545) on Tuesday February 10, 2009 @02:07PM (#26801319)
    ... 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.
  • by Anonymous Coward on Tuesday February 10, 2009 @02:10PM (#26801369)

    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.

    • Re: (Score:3, Insightful)

      by evanbd (210358)
      The easier way to deal with that? Just stop talking on the phone with the officer. They'll give up pretty quickly. If they don't, just tell them that on advice of your lawyer, you don't want to talk with them without an attorney present and then hang up. If you make it take work to talk to you, they'll do a little work to make sure the evidence looks plausible first. They're just being lazy -- if getting you to confess is easier than checking out the evidence, they'll try to do that. Once it becomes c
  • they both work in a complex technical language

    a programmer worth his salt knows most of the important classes and functions and syntax in a given language needed to get a programming task done, whether serving webpages or making an operating system run. a lawyer does exactly the same thing: he knows certain important case points, the usual range of legal maneuvers in case law, and the prevailing legal opinions, and he applies them to the given legal task at hand, whether criminal or civil

    an ASP.NET C# programmer wouldn't jump in and start telling a C++ device driver how to do his work. with the same sort of humility in mind, techies really should learn a little more about the law before shooting their mouths off

  • by PolygamousRanchKid (1290638) on Tuesday February 10, 2009 @02:24PM (#26801669)

    . . . you won't be among the first against the wall when The Revolution comes.

    Hard skills, like hacking Perl scripts to keep The Leader supplied with porn, will trump soft skills, like litigating about microwaving poodles.

    Beware . . . it IS coming . . .

  • Hans Reiser (Score:3, Interesting)

    by jjohnson (62583) on Tuesday February 10, 2009 @02:33PM (#26801863) Homepage

    Reiser is an excellent example of someone who should have had this explained to them. He thought he could get up on the stand and wave away a mountain of circumstantial evidence with implausible arguments that created (un)reasonable doubts.

    "I removed the passenger seat so I could sleep in my car, not because it was covered in my wife's blood."

    "But Mr. Reiser, after removing the seat, there's still a metal bar three inches off the floor that crosses the space. Are you telling us that you slept on that?"

    "... Yes. Yes, I am."

    "In a pool of water an inch deep?"

    "I didn't say it was comfortable."

    "Why was there water in the car?"

    "I hosed out the interior."

    "Why?"

    "It was dirty after removing the passenger seat so I could sleep there."

  • by zerofoo (262795) on Tuesday February 10, 2009 @02:34PM (#26801875)

    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

  • My best advise (Score:5, Informative)

    by Mr_Blank (172031) on Tuesday February 10, 2009 @02:53PM (#26802321) Journal

    Do. Not. Talk. To. Cops.
    Part 1: http://www.youtube.com/watch?v=i8z7NC5sgik [youtube.com]
    Part 2: http://www.youtube.com/watch?v=08fZQWjDVKE [youtube.com]

        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.

  • Perspective (Score:5, Insightful)

    by element-o.p. (939033) on Tuesday February 10, 2009 @02:55PM (#26802377) Homepage
    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?

The sooner all the animals are extinct, the sooner we'll find their money. - Ed Bluestone

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