Category Archives: Law: Criminal Law

The Witness Perspective

Anyone who is, or is thinking of becoming, a prosecutor ought to read Life Inside the Aaron Swartz Investigation for Quinn Norton’s account of what it feels like to be a witness in a prosecution, including in a grand jury proceeding. I doubt that much of it, especially the run up to the grand jury, was an unusual experience, which will make it all the more instructive to participants in the legal system.

I haven’t written about the Aaron Swartz story because I don’t have much to say that hasn’t been said well and often elsewhere. What’s publicly available does suggest that prosecutors took a surprisingly tough line with Aaron Swartz (whom I believe I only met once, briefly, but who left a comment here once). This tough approach is consistent with an attitude I think is common to a lot of law enforcement and, sadly, judges, in that they see “hackers” as evil creatures akin to Tim May‘s ‘four horsemen of the Infocalypse‘.

I’m not, by the way, a fan of the ordinary grand jury, which I think has strayed far beyond what it was and should have been, and has become a too-pliant tool of the prosecution. Interestingly, Florida does it better: as well as using local grand juries to hand down first degree murder indictments, statewide grand juries here investigate social problems and come up with frequently sensible reports and recommendations often aimed at spurring legislation or administrative reform.

And it’s more than clear that we need to reform the Computer Fraud and Abuse Act, along the lines of the “Aaron’s Law” proposal making the rounds.

All that said, and assuming the most noble of motives on Aaron Swartz’s behalf, it also seems to be the case that breaking into a server closet at MIT and inserting a machine there that availed itself of the data stream isn’t nice and wasn’t legal. There was at least petty crime, and perhaps more depending how one valued the data acquired. What is at issue to me regarding the feds (as opposed to, say, MIT) is not so much the fact of a prosecution but rather the means used to go about it. Then again, I suspect these means were standard operating procedure, which is the real issue.

(Spotted via Cory Doctorow, Inside the prosecution of Aaron Swartz.)

Posted in Law: Criminal Law | 1 Comment

350 Wrongly Convicted People Cleared by DNA Evidence

Massive infographic based on data from 1989-present from the Innocence project.

(Overlarge graphic seems fine, but author of graphic is a weird site promoting online criminal justice degrees. Run away.)

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US Incarceration Rates Are Out of Control

I knew it was bad, but not this bad:

(Spotted via Ian Welsh, Justice is not Law, Law is Not Justice.)

I admit the graph is a tiny bit misleading — it uses absolute numbers rather than percentages of population, which would be better. But even making that correction doesn’t change much: US population grew from 226.5 million in 1980 to 308.7 million in 2010, a 73%36% increase. Meanwhile, however, the number of persons incarcerated almost quadrupled.

Our incarceration rate is by far the highest in the world. The United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners. However you draw it, we need to change the shape of this curve. Drug laws are probably the place to start. Three strikes rules would be next. Preventing the privatization of prisons — which creates a lobby for more incarceration — is another good move. Similarly, changing the electoral rule that counts prisoners as (usually non-voting due to felony disqualification) residents of the district in which they are incarcerated rather than their last regular address would also decrease the incentive for state and congressional representatives from those rotten boroughs to push for more rules that create more prisoners.

Ian Welsh argues that plea bargaining should be eliminated also. Civil law trained ethicists tend to agree, however, that the plea bargaining system is immoral since it empowers the prosecutor at the expense of the neutral (the judge) thus producing outcomes we have less faith are just, and puts the defendant to a terrible choice in which he is threatened with punishment — more charges, no deal on sentence — for exercising his right to mount a defense. I’ve long thought there’s something to it but one has to admit that as things stand eliminating plea bargaining would drive the system to a halt unless we first cut down on the number of things we call crimes.

Keep all this in mind while you enjoy thinking about the beneficial effects on the crime rate caused by removing lead from the environment.

Posted in Law: Criminal Law | 19 Comments

Domesticating Airport Dragnet Searches

Two articles examining the legality of the airport screening regime so many have come to take for granted appear in the online supplement to The Northwestern University Law Review: Revisiting “Special Needs” Theory Via Airport Searches by Professor Alexander Reinert of Cardozo and The Bin Laden Exception, by Professor Erik Luna of Washington and Lee.

The Reinert article treats the judicial acceptance of the airport screening regime as a foregone conclusion, and labors to limit the fallout:

[T]he TSA’s new search regime is more difficult to square with fundamental Fourth Amendment principles than the FAA’s initial airport screening procedures. Therefore, precisely because of the pressure on courts to adjust Fourth Amendment doctrine to meet the perceived needs of the TSA and the traveling public, it is all the more important that new doctrinal limitations accompany any judicial acceptance of the TSA’s new search regime. Specifically, I argue here that if courts are to give the TSA’s new search regime constitutional approval, it must be limited to its justifying purpose—safe air travel—and it must be grounded in the special needs exception to warrantless and suspicionless searches. Making explicit what has been implicitly required by most of the Supreme Court’s special needs jurisprudence, I propose a special exclusionary rule for searches like those conducted by the TSA that will best limit the ex post utility of such searches to their ex ante justifications. Under my proposal, the use of evidence discovered as a result of mass suspicionless searches like the TSA’s screenings should be limited to prosecutions for offenses that relate to the asserted justifications for the search regime. This link between justification and permissible use is one novel way to limit the reach of a special needs justification for these airport searches. In a way, then, the TSA’s new search regime offers an opportunity to revise and revisit special needs jurisprudence to minimize the risk that the exception will ultimately swallow the Fourth Amendment’s traditional preference for searches based on warrants and individualized suspicion.

The Luna response is even more pessimistic about the vitality of the incredible shrinking 4th Amendment:

In effect, TSA agents may now search any and all items in one’s baggage, given the sweeping claim that explosives “may be disguised as a simple piece of paper or cardboard, and may be hidden in just about anything, including a laptop, book, magazine, deck of cards, or packet of photographs.” Moreover, evidence of an agent’s impermissible motive—for instance, searching a bag for contraband wholly unrelated to terrorist threats—will be ignored so long as the TSA’s “programmatic motive” is airline safety. …

In the end, I just wish everyone would be a bit more honest. What is at play here is not a previously recognized exception to the Fourth Amendment—consent, good faith, special needs, and so on—but instead an entirely new exemption from otherwise applicable requirements, driven by an abiding fear of al Qaeda and its now-deceased kingpin rather than a reasoned assessment of terrorism-related risks. Let’s call it what it is: The Bin Laden Exception to the Constitution. If nothing else, putting a name to the systematic evasion of the nation’s most hallowed legal text might force some to face their own irrationality and question the wisdom of bending the Constitution, as well as spilling vast amounts of blood and treasure, all for the sake of one evil man and his outlaw organization.

Spotted via Pogo Was Right, On the Colloquy: The Fourth Amendment and Airport Screening Issues.

Posted in Law: Criminal Law, Law: Right to Travel | 1 Comment

11th Circuit Rules that Full Immunity Is Required for Compelled Decryption

The 11th Circuit just decided In re Grand Jury Subpoena Duces Tecum March 25, 2011, USA v. John Doe.

Doe was ordered to decrypt his hard drive, and given limited immunity (use immunity) regarding the act of production of the unencrypted contents. He refused, claiming that the immunity was insufficient, and also that he was not in fact able to decrypt the hard drives.

We turn now to the merits of Doe’s appeal. In compelling Doe to produce the unencrypted contents of the hard drives and then in holding him in contempt for failing to do so, the district court concluded that the Government’s use of the unencrypted contents in a prosecution against Doe would not constitute the derivative use of compelled testimony protected by the Fifth Amendment privilege against self-incrimination. This is so, the court thought,because Doe’s decryption and production of the hard drives would not constitute “testimony.” And although that was the Government’s view as well, the Government nonetheless requested act-of-production immunity.13 The district court granted this request.

For the reasons that follow, we hold that Doe’s decryption and production of the hard drives’ contents would trigger Fifth Amendment protection because it would be testimonial, and that such protection would extend to the Government’s use of the drives’ contents. The district court therefore erred in two respects. First, it erred in concluding that Doe’s act of decryption and production would not constitute testimony. Second, in granting Doe immunity, it erred in limiting his immunity, under 18 U.S.C. §§ 6002 and 6003, to the Government’s use of his act of decryption and production, but allowing the Government derivative use of the evidence such act disclosed.

It’s a well-argued opinion and could be influential.

Posted in Cryptography, Law: Criminal Law, Law: Internet Law | 1 Comment

Mediate Our Dispute

My office neighbor Caroline Bradley and I are having a mild disagreement over her incredulity that greek doctors are “foreign government officials” for Foreign Corrupt Practices Act purposes.

My take is that if they are state employees, and if they have authority to buy stuff, and if the bribes are to get them to buy the stuff in particular ways, then why not?

Please direct any comments to the original post.

Posted in Law: Criminal Law | Leave a comment

Here We Go

Inevitably, here comes the test case:

A U.S. federal judge has ordered a defendent to decrypt her laptop.

Schneier on Security: Federal Judge Orders Defendant to Decrypt Laptop

Posted in Cryptography, Law: Criminal Law | Leave a comment