Homeland Security Proves It Knows Little About The Internet - Or The Law | Hacker News Reader

Homeland Security Proves It Knows Little About The Internet - Or The Law

techdirt.com

158 pointsjulian3738 comments

The problem here is not so much with a judge or magistrate being ignorant of technical issues but rather with a set of laws or procedures that allows a prosecuting authority to come in with a heavy hand to get onerous remedies without affording the affected party a proper opportunity to respond, at least at the first step in the proceeding.

As long as the affected party gets a fair opportunity to respond, that party will put contrary evidence and arguments before the judge or magistrate, including affidavits of experts who explain the relevant technical issues. Once a full record is before the court, issues tend to be fairly and properly decided.

Obviously, at the warrant stage in this proceeding, everything was one-sided. In such cases, at least at the ex parte phase, things will tend to be "rubber stamped" by an official, such as a magistrate, who probably has all of 10 or 15 minutes to devote to considering this particular item as one among what might be dozens of items presented to that official in a given day.

The key is always one of due process. If all sides get to present their case, judges and magistrates will tend to conscientious and well-supported decisions. They do not need specific technical training to be able to do this, as they will usually be well-educated by the affected party on whatever technical deficiencies might exist in the prosecutor's position. That obviously did not happen here because this particular step appears to have been decided based on a one-sided presentation only.

Would you advocate making a conviction necessary for a dns takedown, or letting defendants make their case before a warrant is issued?

Your comment seems to imply that the latter is not the case at the moment; if so, do you have any idea why not?

Although your argument stands up for situations under normal due process the special exemption cases like this shift the burden of education and responsibility to the judge. In a case where no due process is given the judge needs to be held to a much higher standard. In this situation the judge’s order is a tremendous exercise of power which needs to be balanced with comparable responsibility and accountability.

"Equally troubling is that magistrate judge Margaret Nagle signed off on the warrants (literally, with a rubber stamp) without questioning any of this, from the look of things."

When judges sign off on stuff like this, do they consult at all with independent technical experts on the implications of the evidence, or do they just take the conclusions at face value? I sure hope they consult because even if they're good at what they do, how can they be expected to be any sort of check on the process when they haven't the technical background to interpret the evidence?

I think even beyond not having the technical knowledge to identify problems, there were a lot of pretty obvious problems (pointing to an article that demonstrated piracy helped sales, etc) here that the judge should be able to identify.

I would have thought (without any legal training or local US knowledge) that the purpose of having a judge need to sign the warrant was to ensure the people writing the requests do appropriate research and fact-checking. I'd guess what this guy has done is technically perjury. At the very least I'd call it contempt of court...

I bet he never gets charged with it though.

I wonder if a judge would be willing to shut down this site simply because it's titled "Hacker News." It doesn't seem to be out of the realm of possibility considering the processes followed in this case.

In a previous job I was told to stay away from any "hacking" web sites because they watch everything. I didn't read Hacker News at work for 3 months.

Thankfully, I got laid off from that job and now have a much better one where I'm encouraged to read all the hacker stuff I can. :)

Yeah, I hear this from time to time. My guess is that it is too much work to read every site every employee reads. When it comes time to fire them, though, then they go through your browsing history so they can fire you for reading "hacking web sites" instead of "not doing any work". Just speculating, but I'm having trouble imagining a department where the reading habits of 300,000 employees are analyzed in real time.

Homeland Security is an auto-immune disorder.

DHS should really be focusing resources on domestic terrorism rather than shutting down a few websites. If even one American civilian dies because DHS was busy shutting down blogs instead of shutting down a terrorist group ho will they feel then? Obviously they won't care like usual but still.

DHS is an umbrella organization that includes many organizations that were formerly under the DOJ. Not defending this action, just pointing out that the mission of the DHS is broader than just "fighting terrorism".

>DHS should really be focusing resources on domestic terrorism rather than shutting down a few websites.

Sadly, DHS itself is probably a far greater source of domestic terror than any currently operating independent group.

> DHS should really be focusing resources on domestic terrorism rather than shutting down a few websites.

What domestic terrorism?

> how will they feel then?

They'll yell that they need more money and legal authority.

Yup, all those TSA agents instilling fear and loathing at the airport are expensive.

The Electronic Frontier Foundation is a 501 (c) (3) charitable organization. You can still get some last donations in before the close of 2010.

How did past generations deal with the problem of idiot and/or old law enforcers misunderstanding technology? And as technology improves more quickly, are we at risk of having even more of a problem of disconnect between the technologically proficient and the (often confused) government bureaucrats?

In court, cops are always right. Juries/judges almost always take the law enforcment's words at face value.

This is because criminals lie; the role of the defense attorney for a guilty client is to wrap a plausible story around this lie. The prosecution and law enforcement is playing an iterated prisoner's dilemma and the accused is only there for a single game. If law enforcement or the prosecution lies then they may get away with it, or they may get caught. If the latter they can face fines, loss of the status that allows them to practice their profession, loss of pension, and even imprisonment. If the accused lies and gets caught they are unlikely to face any additional charges beyond the ones that brought them before the court in the first place. The accused has a strong incentive to lie and the prosecution does not, judges and juries know this and that is why they weigh testimony differently given the source.

You're reasoning as though the prosecution and police officers have no incentive to lie when they do. They are under pressure to make arrests and make them stick. That's their 'job'.

So, both sides have an incentive to lie. Juries give credence to law enforcement testimony out of deference to authority.

maybe we need better incentives

and I think we used to have better incentives, back when enforcement was local and directly responsible to the parents of those whose heads they might crack. Of course, they weren't always fair to people just passing through.

The community relationships of the past have been weakened and/or replaced with relationships to politicians and unions. I see no reason why the police should not be subjected to rule of law like the rest of us.

Local law like this?

>> For fifteen minutes the Long Beach Police watched Douglas Zerby sitting on an interior courtyard stoop playing with a toy gun. They never announced their presence. There was no danger to anyone. They never announced their presence. There were at least five police officers there. Then, after fifteen minutes, two or three of them opened fire with shotguns and pistols. There was no warning, and no command to drop the weapon. Apparently his first notification that the police were present was to be shot dead.

This, according to the LBPD, was to protect the citizens and make certain no one got hurt.

Heroic. <<

From http://www.jerrypournelle.com/view/2010/Q4/view653.html#Frid...

That story is messed up for sure, but I really doubt Long Beach is the kind local small-town law enforcement the grandparent post is talking about.

I think you were misread by whoever downvoted you. I agree that the incentive structure for LEOs needs to change dramatically; and that the incentives for Barney Fife were more conducive to effective and non-abusive police work than today's.

Unfortunately, I doubt fixing LEO incentives will be as simple as rewinding the USA to Andy Griffith.

yeah, but there is a big kernel of truth there.

I think part of the problem is the fact that cities really don't care about people that are unhappy with their governance. If parts of the city could withdraw from the legal arrangement if they are unhappy, cities would try a lot harder.

I really doubt that the now ridiculous pensions many government workers have would be possible if governments were subject to more discipline than "Oh, shit, we've run out of money."

Which is why I like the Swiss cantons. The people of any given part of a canton can vote to leave, join another, or start a new canton.

Government needs competition just like the rest of us. We have traditionally thought of competition as impossible or requiring violence, but that does not have to be the case.

...the role of the defense attorney for a guilty client is to wrap a plausible story around this lie...

No, the role of a defense attorney for a guilty client to demand that the state actually prove the client's guilt.

Lying to the court is the dumbest strategy. Any competent defense attorney will not organize their case around a lie but rather around making the state actually prove their case beyond a reasonable doubt. It is important that guilty people be proven guilty, not simply be "likely guilty".

Also, cops caught lying face little-to-no-repercussions.

(This is paraphrasing an attorney friend of mine).

I don't know if this varies from location to location but it is pretty common here in the UK for a criminal defense not to lead any evidence - it is for the prosecution to prove their case beyond a reasonable doubt, not for the defense to prove the innocence of the accused.

There are also enough high profile cases where police have lied and/or fabricated evidence - not something that happens a lot, but it has happened.

Except that policemen and prosecutes only ever interact with a jury once, and judges are often former prosecutors making them sympathetic to what prosecutors have to do to win cases. Have you been following the "Videotaping the police" meta-story thats been coming up these last couple of years? Even when video evidence laters shows that a police officer was lying on the stand there are seldom any consequences, and those are usually just a period of paid leave.

They went ahead and broke the law and then were called heretics or worse. Kepler's mother was imprisoned, threatened with torture and called a witch. I'm sure you could find many more examples, it's basically the whole history of science.

http://en.wikipedia.org/wiki/Kepler#Epitome_of_Copernican_As...

I'm reminded of the old adage: Science. If you aren't pissing someone off, you aren't doing it right.

Incredible that people with power have a real lack of understanding in their field

Once one has power, what do they need understanding for? From our perspective, we would like the powerful to use their power wisely. From the perspective of someone with power, they are very unlikely to consider themselves unwise and in need of more understanding. And who is going to tell someone with power that they are unwise and lack understanding?

The head of ICE should be shacked over this - not because of the way it was done, but because homeland security should concern themselves with nothing except stopping terrorist attacks until the present war on terror is over. With all the urgency politicians have put in to it, we can afford to waste time on trivial issues of copyright. Unless punished, they will never learn.

What does ICE stand for?

US Immigration and Customs Enforcement

Immigration and Customs Enforcement: http://en.wikipedia.org/wiki/U.S._Immigration_and_Customs_En...

Sorry folks - that was really a rhetorical question directed at the grandparent.

If you effectively make the law, then ipso facto you can't be clueless about the law... maybe clueless...

The questions remains whether this will wind-up being Homeland Security making the law...

Reply on news.ycombinator.com