"When we get into things like this," [Judge William Downing] said, "anonymizing stuff, that’s well over my head technologically, then it becomes very murky and hazy."
That sounds to me like the judge likely wouldn't have known what a TOR node was if the police had told him these guys were running one.
Technology isn't slowing down, so how can we make sure the law keeps up?
The biggest problem isn't judges who doesn't know everything - they have to deal with cases covering every possible discipline and can't possibly know everything about everything put before them. The problem is when they believe they do, or don't care, or don't want to admit it and decides to just trust law enforcement blindly instead.
I'd like to think that a judge that readily admits what he doesn't know will make sure to learn or seek suitable advice when necessary.
The point of this article is given the fact that they left that off then he can't reasonably ask for more information.
In these expedited judicial-request hearings, there isn't an explicit defendant, so there's no oppositional counsel to bring in. Maybe we need to bring back the concept of a "devil's advocate"...
http://www.nytimes.com/2014/01/05/opinion/sunday/rampant-pro...
http://www.prosecutorintegrity.org/wp-content/uploads/Epidem...
(I wouldn't trust either the defense nor the prosecution to provide me with neutral information via their selected experts.)
Only half joking.
And this thinking is, in practice, what the vast majority of a judge's every-day job is: to Do The Research—to become experts in the things they're asked to rule on, to build up the context necessary to discriminate between assertions made to them by opposed parties. Judges are already experts on the law; but that only helps when the law is already so well-established that a judge isn't even necessary. In most cases, the law is vague: it doesn't already have the answer for what should happen in this particular case, with these particular facts. The point of the judge is to decide what the law should be—to gather facts about the world, and use them to answer a question in a way that sets legal precedent going forward.
Everyone else in the court's job is, then, to feed the judge all the necessary facts about the case, on both sides, so that the judge can know just what subjects must be made clear—must be researched, or questioned, or followed up on—before the case can be decided.
(Even the irrelevant statements; the judge is the one expected to know what the law must blind itself to, so the judge wants to hear everything, and then cull the pile of statements themselves. When a jury is present and must be the one to decide, the judge will attempt to moderate the jury using this same legal-blinding... but with mixed results. In jury trials, you'll see judges trying to keep attorneys from making certain assertions that might irreparably bias a jury; but in non-jury trials, judges just want all the information they can get.)
In short: as long as judges are doing their jobs, the law keeps up. That's what we pay judges to do. If the law isn't keeping up, we've just hired some bad judges.
Judges do rule on pretrial proceedings including warrant applications; although in federal and some state jurisdictions grand juries still return indictments on felonies.
That said it is wrong that judges do not decide criminal cases. Besides ruling on evidence and instructing jurors, they can also acquit, dismiss, or declare mistrial without the jury.
N.B. Right to jury may not apply to so-called "petty" and/or non-criminal offenses which can carry as much as 6 months jail.
The real problem is that we can't ever fire them, no matter how bad they are (see FISC)
Judge Bowman, who authorized the warrant, said he could not talk about the case and referred me to his colleague Judge William Downing, who spoke about some of the underlying issues. "When we get into things like this," he said, "anonymizing stuff, that’s well over my head technologically, then it becomes very murky and hazy.
A good judge who is not an subject matter expert should be good at asking the salient questions and stopping a rambling jurist in their tracks. The whole idea isn't to become an expert, it's to find the right questions, and provide the opportunity to expediently arrive at conclusions and solution to them. And it often is just one question.
The singularity has come in the sense that technological progress has been accelerating and the rate of legal adaptation to it is constant. The rate of technological change outpaced legal change 20-30 years ago and now the difference is really starting to hurt.
This problem will only get worse. Can we build new laws that handle the ever growing expanse between the capacity of technology and the legal system and cultural expectations?
Maybe one day running Tor will be routine and not a cause for suspicion. Until then, there is nothing wrong with investigating the origin of illegal activity, with appropriate measures, and requiring Tor to be raised and proven as an affirmative defense.
[0] http://www.yourarticlelibrary.com/law/3-kinds-of-legal-syste...
Logic is fun, kids.
That depends on what you me by "the law". Paper based systems simply can't keep pace with the speed of information flow in electro-magnetic systems.
Yes it is a disservice to themselves and others that non-technical people zone out as soon as someone starts talking about technical issues.
But it is also a disservice to themselves and others when technical people don't even try to simplify (in a non-patronizing way) high level concepts for consumption by the general public.
Both sides aren't actually "trying". Both sides should be. Someone has to take the first step toward a halfway point, and history shows it ain't gonna be "joe/jane public".
To be fair, I rarely understand what they do even if it's rather mundane. I do like to hear passionate people talk and see them work, but I admit that my curiosity is higher than most.