You Are Not a Lawyer 693
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.'"
Re:IANAL (Score:1, Interesting)
Talk about timing (Score:4, Interesting)
Comment removed (Score:5, Interesting)
Reasonable Doubt. (Score:5, Interesting)
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.
Thank You!!!!! (Score:1, Interesting)
Yes, I'm an engineer, but I also studied law. I have thought about becoming a patent attorney, but I haven't taken the bar exam yet in my state. I'm so tired of people who stand on a soapbox and proclaim how much they had to learn about [CS|IT|other technical field] while simultaneously spouting blatant lies when it comes to law. Guess what? Lawyers aren't stupid, they have doctoral degrees, and most of the people on slashdot in the CS/IT fields who pretend to know the law do not.
LEARN (Score:4, Interesting)
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.
Reputation VS incarceration (Score:5, Interesting)
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:Wow! Who ever would have guessed that!? (Score:5, Interesting)
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]
Re:IANAL (Score:3, Interesting)
What about hiding something for wireless NAS in a less than obvious place and just let them take the machines? Keep the things you want hidden on the disk in the wireless NAS and don't log your transfers.
If you think it's to hard to hide it what about hiding it at the neighbors apartment? Good luck with happening to bring that back for investigation ..
Re:Reasonable Doubt. (Score:2, Interesting)
most defendants never get to defend themselves at all. the cops arrest you, seize whatever is within reach, prosecutor brings a set of charges, and you get offered a plea deal. no one ever looks at the legality of the search and seizure of evidence.
i taught for a year in a school for kids that had been expelled from the regular school system. there was a senior there, never got in trouble, really nice kid. he was standing in his front yard playing with his niece. 2 cops jumped the fence 'in the course of an investigation' on his block. if i remember correctly there was an altercation across the street. they grabbed the kid, threw him on the ground, searched him, and found 2 nickel bags of weed. he was arrested on the spot, and eventually charged with possession with intent to deliver, a felony. there goes your right to vote, etc.
he ended up getting a plea deal down to simple possession, a misdemeanor with a couple hundred dollar fine. he couldn't afford an attorney and the public defender convinced him to plead. i had a friend who got caught with about 10 times as much weed in the same city. he was issued a ticket for possession and was free to go. difference? my friend was white and out at the bars, the kid was white and lived in the ghetto.
now, i am not a lawyer (of course) but i think that he would have had a pretty good chance of getting the case dismissed. they had no reason to search someone that was across the street or down the block from a fight. unless he was reported to be involved (he wasn't) they had no reason to even be in his fenced off yard. just another successful prosecution for the DA, and no one cares how the evidence was gathered.
How about a series to help lawyers understand (Score:2, Interesting)
I will try to disabuse computer scientists and other technically minded people of some commonly held misconceptions about the law (and the legal system).
What about writing a series to explain to lawyers they are not technical. How many times do lawyers misunderstand technology? Furthermore, I would argue it is the fault of lawyers that common folks cannot represent or understand the legal system. Doesn't it make sense to write laws the majority of common people can understand? A better use of time would be a series for lawyers that explains why the importance of spending the time and energy to draft clean and clear laws.
Hans Reiser (Score:3, Interesting)
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."
Re:Wow! Who ever would have guessed that!? (Score:3, Interesting)
Re:Summary for those who didn't RTFA (Score:4, Interesting)
Oh, I read the article as "technological arguments, though sound, won't stop the legal system being 100% broken."
Re:Wow! Who ever would have guessed that!? (Score:1, Interesting)
I mean, hell, you just did something similar here. You assumed that the article writer must be an idiot because, well, you said so.
Uhhh, where the hell did I say that? Technically, I thanked him!
Re:Thank You!!!!! (Score:1, Interesting)
Where're YOU from?
In the US (and we all know the rest of the world doesn't count. having the biggest club and hitting people with it is not practicing law. oh wait.), lawyers need JDs. That stands for juris doctor. That basically means while everyone else slaves away forever for their masters, the lawyer has their JD after three years of postgrad study. Incidentally, for one year more, they can pick up an LLM, which is a master of law. Yeah, we switched our order just to screw with you.
Re:Wow! Who ever would have guessed that!? (Score:3, Interesting)
Burden of evidence can be a killer.
Sure, you're running an Open AP and your computer's been rooted. But they found the CP neatly categorized in a non-hidden folder on your desktop named 'fun stuff', CP on your work machine and logs showing you downloading it from your home machine and elsewhere, the same sorts of sites as at work. Said downloading occurs when you're at home or at work for the appropriate machine.
What are the odds that some outside party would do all that?
Even if I was trying to frame somebody*, I'd have a hard time faking all that even WITH the box rooted. Then there's always the chance they'll also have the control packets for the rootkit logged, which a competent lawyer with techie support would be able to argue.
*discounting that I don't really know how to find CP in the first place, much like I'm sure that if I went looking for dope/illegal guns/hooker I'd run into a police sting first. There are positives and negatives to running on the right side of the law my entire life. Got a good job; don't really know how to 'get away' with crimes. Then again, my 'street smart' cousin hasn't been too successful at the 'get away with it' part. I've never seen the inside of a jail or prison cell, I consider that something of a success.
Re:No, I think the converse is true (Score:4, Interesting)
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...?
Re:Legal standards of search and seizure (Score:3, Interesting)
You obviousally dont understand anything about a scanner and ear plug.
I had a real one, it was thin, it fit inside my pockets (I started the baggy pants thing, all of you copied me!) hidden. And I ran the wire up my shirt to my earpiece that was flesh colored. you could not see it under my long hair. Two reasons, I did not let party-ers know I had it, 2 cops get PISSED if they see you with a scanner. It was easy to ditch it if need be.
Proud of it? yup. it's smarter than simple fool that get's the name of the jail tattooed on them to be proud of their arrests. I have no record because of it.
Re:Wow! Who ever would have guessed that!? (Score:3, Interesting)
And there is a problem that reasonable people can be convinced by a good lawyer to think an I.P. address is equivalent to a fingerprint and a DNA sample combined when in reality, anyone can take on my I.P. address.
Likewise, the presence of a file called "Sympathy For The Devil.mp3" does not mean that I actually have the song. And likewise, the presence of the song on my computer doesn't mean that I put it there (give me 2 minutes access to your windows computer and I can put stuff on there that would ruin your life-- especially with the new ruling that a cartoon of bart simpson screwing marge simpson is child porn).
People are really ignorant of computers. Computers, and now photographs, and increasingly, video tapes, and just about any kind of evidence can be fabricated. It's amazing to me that they can put Oliver Reed's face on another actor in a movie, yet people still take a video tape as gospel.
It's hard to believe anything any more since DNA tests have shown how often human witnesses are wrong.
It's a good reason for jury nullification (which you should never admit you will do- they'll just strike you- killing your right to jury nullification).
Re:Pfft, lawyers (Score:5, Interesting)
They claim that ignorance of the law is no defense. This requires that the law be accessible to the average person. However, if I were to read all laws (and regulations with force of law, as many electrical "laws" are a national book that isn't actually published law, but carries the force of it, as is the FCC and many other such sub-laws), I would die of old age before I could read them all. So, I'm not allowed to claim I didn't know it was against the law, and it's impossible for me to know all the laws. That alone sums up "law" as a profession. Sure, as a mechanic, I could be good with Mercedes and not know about Fords. But if I own a Mazda, I can get the Chilton's or such and have a good bet at figuring out most I'd need to know, and have a good idea when I'd need to call in support. For the law, you are expected to call in support before you ever start. Asking your neighbor for help with your Mazda is perfectly fine, but illegal in Law.
And lawyers also have 7 years of school to pay for.
So anyone that can get through an MBA program at 6 years should be able to charge about what a lawyer does? It's not just supply and demand, it's that the law creates a monopoly. Only Bar members may practice. Then, the lawyers got together and made laws to protect their racket, driving up prices. Lawyers making laws don't make them as simple as possible. Ever read a law? It's impossible. The law was passed in the 1800s. Then it was amended once every 5 years for the past 100+ years. And many of those amendments were to amdendments. So you have to spend hours per line figuring out what the law actually says now. And yes, I've seen them done this way. However, now it's more common to have an "unofficial" recording of the law with it written as amended, as opposed to written as written/stricken/overwritten/repeat.
And you got that from the judge. The joke goes, "What do you call the person that graduated last in his class in medical school? Doctor. What do you call the person that graduated last in his law school? Your honor."
Re:If you don't plead, DOJ only has a 30% rate (Score:3, Interesting)
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 to drop charges they couldn't prove.
Sure, You've Discredited Ohm, But... (Score:4, Interesting)
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:5, Interesting)
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)
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:Pfft, lawyers (Score:4, Interesting)
That's untrue, unless you consider the NEC an "official" legal body. My local codes state something to the effect that "all electrical work must conform to the NEC." Thus, if you violate the NEC, you break the law, and if you don't, you are following the law. So you must pay a private organization for a copy of a book to figure out if you are breaking the law. However, I think you were talking about my reference to the laws being accessible, and that is based on the laws being available online first by private organizations that charged. If you wanted them for free, you went to the library, which had the oldest possible copies, and then years of amendments, rather than a re-publish of the entirity every year. Now, it is common to find most places put the actual laws as applied online. But that's very recent. So, between regulations like the EPA regulations, the FCC regulations and laws that give legal power to private organizations like the NEC, coupled with case law, I stand by my statement that the laws are unknowable. If they weren't, then why is it necessary to even have a lawyer? And ever notice how lawyers specialize? Try asking a lawyer about something outside their speciality. "I don't know about that, I can barely keep up with the law in my one very small specific part of the law I work with 40+ hours per week."
"An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. An assault is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or by both the fine and imprisonment."
As stated by someone else, the first clause alone could take hours to decipher. "An assault is an unlawful attempt..." Well, it wouldn't be illegal if it were a lawful attempt. That's what we are there to look up. So does that mean that lawful striking is not assault, while unlawful striking is? And if so, what is the manner in which unlawful is defined? Can you spank your child, but not a neighbors? Can the cops strike someone in the course of arresting them? What about a regular person making a citizen's arrest (which in Texas, is nearly indistinguishible from a real one)? Wouldn't boxing be an assault? Or is that excluded by the "unlawful attempt" exclusion?
If you think that is all perfectly clear and that there exists no case law on those first 6 words, then we can look at the rest, but I'm guessing that there have been hundreds of hours of official time spent on those 6 words alone. But, with "case law" being as official as the written law and completely inaccessible to the average person, how could anyone ever know?
Re:Wow! Who ever would have guessed that!? (Score:2, Interesting)
I reckon this is quite an unfounded statement but it's what I deal with on a daily basis... The thing is, I'm not happy at all with the idea that I'm going to be defended and tried by someone who can't grasp boolean logic basics and calls it "chinese" or "code". As of law being abstract, what about, say, the Command Processor design pattern for abstraction?
Seriously, have you ever read their books? Their teacher's writings? I've never read US law school material, but around here? There are words in it I don't even think can be translated. There is no discussion. Teachers (they have to be addressed as Mr. Professor Doctor - literal translation) are complete masters of the student's fate. There is no scientific discussion. Enough rant though. Bottom line is: law is complicated because most people making laws and applying laws are perfectly ignorant of the most basic principles of logic and they don't have the slightest clue of what critical thinking and scientific method is. Combine the awareness of these principles with the internal know-how of how courts, investigations and police works and, there, you have a top lawyer. This works really easy for doctors too (M.D.'s)...
Re:Ohm's Law? (Score:1, Interesting)
Hey, whatever man.
We all know about that stuff in the article. Its sort of a mashup of the 4th Amendment and the Patriot Act. We've all read it and understood the implications (unlike most of the senators and congress membersthat passed it), and have been talking about it on Slashdot (and Boingboing, and Ars, and pretty much everywhere else for that matter) for years.
That doesn't mean it isn't fun thinking up all the implications of widespread, bug-ridden software that opens up a huge unsuspecting audience to running bot-nets and fueling their own spam problems, and how many ridiculous ways to put a file onto a computer because of all the bugs. I remember doing that to my lab partners via NFS holes back in college. I even exploited the Code Red virus to shut down computers that kept trying to infect my network (that thing let you run pretty much anything you wanted on a windows machine.. it was ridiculously dangerous)... now you have to pay to get access to those sorts of things... crazy... but I digress...). It was all fun and challenging in an academic sort of way. It's like a geekier version of "Who would win: Batman or Superman?"
These days I just use a Mac and pretend that it can't happen to me. :)
Re:Pfft, lawyers (Score:3, Interesting)
So, I'm not allowed to claim I didn't know it was against the law, and it's impossible for me to know all the laws.
That is a VERY important point. While some laws are obvious, many more are not. To make matters worse, if you're unsure and ask for advice from a relevant government agency, they take no responsibility for giving you bad information. That is, you can do exactly as they instruct and then have the very same agency come after you for it.
Civil law has gotten even worse. You can actually do absolutely nothing wrong at all and yet the court will still happily compel you to appear and go to great expense defending yourself to answer the patently absurd claims of any nut case that decides to sue you. Often, judges and various officers of the court will act as if they can't imagine why taking a week or more off from work without pay would be a problem. They seem equally unable to imagine why someone making $8-$40/hour finds $200 or more per hour for a lawyer to be a hardship or just plain impossible. That is certainly NOT an example of the courts using their extraordinary legal power responsibly.