Michael Eriksson's Blog

A Swede in Germany

Follow-up: The danger of neglecting civil rights / absurd events in Canada

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In a positive development of the events discussed in a previous post, it appears that the charges have been dropped. (Cf. e.g. [1], [2].)

On the negative side, it seems that 11 other downloaders might have been similarly harassed (and similarly without justification).

Ditto that the confiscated computers absurdly have not been returned—and might not be so for quite some time. Confiscating computers is an extremely dubious practice in almost all cases; not immediately returning them after charges have been dropped is simply inexcusable. (That I use “inexcusable” again and again with regard to this case is not a sign of lacking vocabulary—but of how gross the mishandling of this case has been.) This mainly because of the added, now entirely unjustifiable, disadvantage for the victims of the confiscation, but also because it opens opportunities for abuse. Consider e.g. a scenario where someone is suspected of some real and serious crime where there is too little evidence to get a warrant: Create or distort a scenario* which pseudo-justifies a temporary confiscation, quickly back-pedal with something along the lines of “honest mistake”, “we were given false information”, “seemed like a crime; turned out not to be”, whatnot, but keep the computers for another two weeks to unofficially search for evidence concerning the original crime**, to plant spyware or back doors, or even to plant evidence outright.***

*Such scenarios are obviously possible, seeing the immense reaction to the absolute non-crime discussed in my original post. Generally, there seems to be a strong law-enforcement opinion that a bad enough crime warrants a drop of due process and citizen’s rights—I have myself been the victim of a late night, warrantless, police search of an old apartment, based on lies by a third-party, and my several written complaints were basically ignored. See also an excursion on due process at the end.

**Many jurisdictions have rules that forbid the use of illegally obtained evidence. However, not only is it not a given that these would apply here (especially, should the investigators later claim to have discovered the evidence when the charge was still present), but even illegally obtained knowledge can be used to further investigations in other regards. To boot, such laws, when at all present, will do precious little to protect against the other problems mentioned.

***In fact, if this ever happened to me, I would likely do a full system re-install after I got the computers back, trying to manually inspect and secure relevant changes since my last backup. I might even go as far as sending the computers to recycling, depending on the risk of hardware manipulation and other circumstances. Obviously, none of the involved effort and cost would be remunerated; obviously, this relies on backups being available. (And, no, I would not see this as paranoid: Firstly, someone in this position knows that the police has been gunning for him, only leaving the question of whether it still is—this is a very different situation from the stereotypical homeless wearer of a tin-foil hat. Secondly, in Germany, law enforcement is very keen on the grossly unethical “Bundestrojaner”-malware, and an attempt to smuggle it on board a suspect’s computer is not the least far fetched. (In both cases, bear in mind that someones officially becoming a non-suspect does not necessarily mean that he is of no interest to the investigation or that he will never become an official suspect of the investigation again.)

Excursion on due process and size of the crime:
Due process, etc., must not be made contingent on the crime being sufficiently small*. Consider e.g. that

*Measured by e.g. the maximal punishment or the degree of typical societal condemnation. Words like “worse” are used in the same manner, and do not necessarily reflect my personal opinion of any specific crime.

  1. The worse the crime is, the more negative the consequences of being convicted, often even accused—implying that due process is more important when the crime is worse.

    Note that the negative effects of an accusation are not limited to the scope of the investigation, having to pay a higher bail, whatnot—it also includes a greater mental anguish, a greater risk of social stigmatization, etc. Men wrongfully accused of rape and child molestation have seen their entire lives ruined, being fired from their jobs, their wives/girl-friends leaving, having to move to avoid aggression, … Being declared innocent months after the damage does precious little to undo that damage.

  2. One of the largest reasons for due process is to protect the citizens from (deliberately) false accusations by others (potentially including a hostile government), and when these others merely have to replace the lesser accusation with a greater one, this protection is severely reduced in value.
  3. Police incompetence, juror prejudice, whatnot does not magically grow immensely smaller because the crime is greater. A truly absurd example is Sture Bergwall, who was convicted of eight (!) individual murders in individual trials, only to later be declared innocent. (It is true that this was only possibly through his own false confessions; however, the case has been reviewed extensively in Sweden and it appears that any reasonable investigation would have found too many flaws in his stories and/or the overall evidence for a single conviction to take place. Notably, neither his extensive history of mental problems, nor his thin and partially far-fetched* stories appear to have diminished his credibility.

    *He confessed to more than thirty murders in total, starting at age fourteen, several that he could not geographically have committed, and at least one in which the “victims” were still alive. In a partial defense of the justice system, some problems only grew obvious over time.

  4. In some cases, notably with the U.S. system of elected DAs, the risk of wrong-doing against someone accused of a greater crime can be greater than for a smaller. Sending someone, even be it someone innocent, to jail for a murder that made the front pages can make a career; sending someone to community service for stealing a candy bar will not. Again, the need for due process is larger with the worse crime.

Written by michaeleriksson

May 10, 2018 at 11:42 am

One Response

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  1. […] a statement. Having run this through my head a few times since then, especially while writing [2], a few additional […]

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