Michael Eriksson's Blog

A Swede in Germany

Posts Tagged ‘civil rights

American Vandal

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I have just watched the first season* of “American Vandal”—another proof that it is possible to do something original and worth watching even today, and that there is no need to just dust of every old franchise**, hoping that the “brand value” outweighs the lack of quality and originality.

*Whether this terminology reflects reality remains to be seen. From the closed character, I suspect that the series will remain at one season, and considering its shortness, it might be better labeled as a “mini-series”.

**Something I have spoken negatively of in the past, e.g. in [1].

It is not the best made series ever—not even close. However, it does bring something new to the table, and it does so while giving food for thought. This most notably in the area of due process, but also concerning privacy, the benefits and dangers of social media, press ethics, and organizations sweeping their problems under the rug—all areas where I have considerable concerns about current developments. (Cf. a number of older posts.) Some of these areas are discussed below.

!!!Here be spoilers!!!

A particular disturbing part, obviously, is how one character, Dylan, was originally expelled from school based on scant* evidence, by an entity that served as judge, jury, and prosecutor in one, and how his “conviction” was almost a foregone conclusion based on his previous behavior**. While this example is fictional, it does reflect common practices in the U.S., where there, for instance, have been cases of colleges expelling people under similar circumstances, often in word-against-word situations, using “preponderance of evidence” (or another too weak standard). Considering the effects of a college*** expulsion and the damage than can accrue through e.g. social media and reputation damage in today’s world, the consequences are potentially horrifying—often far worse than the alleged crime or even “crime”. When it comes to actual crimes****, it is vital that proceedings follow a level of due process, rights of the accused, whatnot, that is comparable to that of a real criminal trial—better yet, leave this to the actual justice system, and then make decisions, e.g. regarding expulsions, based on what the results of the justice system were. Even when no crime is present (e.g. with a pure behavioral matter), it is vital that the (real or virtual) roles of judge, jury, and prosecutor are sufficiently separated from each other, and that the “accused” is given sufficient opportunity to defend himself.

*The only evidence against him that was not, at best, circumstantial was a testimony by a witness, which was offset by conflicting testimony by an alibi giver. Neither witness had any obviously superior credibility.

**Dylan was a highly problematic student, and I do not rule out that his past behavior might have been enough for an expulsion. However, he was, as eventually transpired, innocent of the vandalism for which he actually was expelled.

***However, note that the series deals with a high-school expulsion. This is bad enough, but less disastrous both because there are more opportunities to gain back ground and (usually far, far) less money invested at the particular school. To boot, people who are expelled from high-school are rarely among those likely to do well in college, implying that the career effect is considerably smaller: We are still typically talking unemployment and/or low-wage, dead-end jobs, considering the low value of a modern high-school diploma.

****As was the case here, specifically the spray painting of 27 cars with stylized penises.

A somewhat tricky question in the series is that of false accusations—paralleling the considerable problems in the real world with especially, rape, child-abuse, and domestic-violence accusations: While Dylan was originally expelled and facing (real) criminal and/or civil charges*, the “witness for the prosecution”**, who seemed*** to have lied outright, did not face such repercussions—his sole fear being a beating from Dylan. It is possible that any attempt at action against him would eventually have failed due to problems of proving intent; however, it appears that an attempt was not even made. Similarly, in the real world, women who make false rape accusations are often let go with a slap on the wrist, while their victims could have faced many years in jail—and often see their lives ruined even when acquitted. Under such circumstances, there is a severe risk that the system is abused e.g. to maliciously hurt personal enemies who have not committed a crime.

*He was proved innocent by video evidence before the real trial in the real justice system started.

**Whether he should be considered the accuser or just a witness can be disputed, but from the details of the show, the difference is likely uninteresting for the current discussion. (However, in most other cases, witness and accuser are quite different things.)

***At least for some time: A later hypothesis involved a suspect with some similarity in looks, and assuming, as was claimed, that the perpetrator wore a hood, an honest mistake is conceivable. However, this hypothesis only arose some time after the “acquittal”, was not necessarily presented to the school, and certainly remained a hypothesis. To boot, the witness had originally spoken with considerable certainty. (I do not recall the exact formulations used, but it was on the level of “I saw Dylan do it”—not e.g. “I saw who did it; he looked like Dylan”.

As a counter-point, we have the question of witness pressure: The “witness for the prosecution” later spoke of having been under a lot of pressure to say the right things. If that was the case, and if he modified his statements to comply with the pressure, someone of his age should be seen in a more forgiving light. However, we then have to condemn the proceedings even more: Witnesses are unreliable enough as it is and when they additionally face pressure to give the “right” answers, testimony is worth very little. It is vital that witnesses are induced to say what they actually remember—not directly or indirectly moved to say what the prosecution wants to hear. Here we again see the importance of dividing the roles of the “court” appropriately, so that the prosecution is neither judge nor jury. Further, where there is a prosecutor to exert pressure on witnesses, there must be a defender to press back. In this specific case, we had the additional complication that the witness was another student, and therefore in a dependent role visa vi the school staff making the decisions, implying that thoughts like “I must keep Mrs. X happy, or she might give me a poor grade!” could have crossed his mind. Such problems could have been alleviated by hiring external specialists to handle the investigation and decision. Consider as comparison a real trial where a witness is employed as a house-keeper by the DA handling the case…

The problem of organizations sweeping their problems under the rug, has probably not featured in my previous writings to any notable degree. A few words on the topic*: There are many types of problems that can arise when there is too little distance, objectivity, self-criticism, whatnot, present in how an organization deals with complaints and internal problems. The most obvious is that it might be so keen on preserving its imagine towards the outside world that it deliberately does not address problems in the appropriate manner. However, we also have to consider constellations like a superior receiving a complaint about an employee with whom he has developed a friendship, an investigative board containing people with personal ties, a biased treatment due to the feeling that that the target of a complaint is “one of us” and the complainer is “one of them”, the target of the complaint being able to influence the proceedings through inside connections (e.g. through giving someone false verbal information that the complainer never even knows of, let alone has an opportunity to refute), etc.

*Since I am filling a deficit, I will remain mostly abstract. If we look at events in the series, I can point to e.g. the illegal failure to upload certain complaint acts to a public server, an attempt to shut-down an independent investigation/documentary, when it threatened to put the school and/or some staff members in a poor light, suspensions (detentions?) being handed out for potentially (depending on interpretation) having critized the principal, …

A particular disastrous example from my personal experiences, where problems were almost guaranteed and remedies highly unlikely due to a massive conflict of interest: Being faced with a blatant breach of contract, I simultaneously sent a bill to the perpetrator and contacted its trade association with a complaint and a request for intervention. In a horribly misguided system, this trade association on the one hand provided arbitration, certifications of quality, and similar, on the other legal service to its members. The result was that the perpetrator took the bill, sent it to the legal branch of the trade association, which immediately gave the opinion that the bill was void and all related claims baseless*—and thereby tied the hands of the rest of the organization with regard to my complaint and any chance of intervention—if another branch had given support to my complaint, it could have caused severe credibility problems for the legal branch, had I taken legal action to receive payment.

*Beware that such “opinions”, by their very nature, have no actual legal value, give little information on the true estimation of the involved lawyers, and cannot, seeing that the lawyers at this juncture only know a fraction of the information, be a complete legal evaluation. To act in his client’s best interest, a lawyer will have to officially side with said client in a near blanket manner, even when the facts at hand, relevant law, and his actual opinion would go in the other direction. There are cases where the situation is so clear, that he is forced to chose another first official stance than a (real or metaphorical) “not guilty”; however, this is rare. The result is that irrespective of how well or poorly founded the complaining party’s claims are, the legal branch would have started with a blanket rejection, and the hands of the trade association would be tied. The complaining party is, almost by necessity, wasting time by approaching such a trade association.

Correspondingly, any organization who wants its complaint management to be taken seriously, must take steps to minimize such problems (a complete prevention is likely not possible). This could include e.g. making sure that there is a special complaints branch, that supervisors/investigators/whatnot with too strong ties to the target of the complaint recuse themselves, that external helpers are brought in (especially when larger amounts of money are concerned, the heads of the organization are involved, or the matter is otherwise unusually important), … While the presumption of innocence must be preserved in terms of treatment and consequences, the potential guilt must also be kept very clearly in mind during any investigation.

(A more specialized post on the misbehavior of German governmental institutions and their blanket rejection of any type of criticism might follow, especially with an eye on the IRS, the incompetence of which is currently again costing me a load of time. It appears to be a universal law that the more incompetent an organization is, the less willing it is to accept criticism.)

A few words on the final scenes of the series:
After his acquittal, Dylan goes through a brief high and then faces repeated disappointments, including that a very hostile* teacher, who had pushed heavily against him, and even (very incorrectly) attributed the crime as directed mainly against her, personally, failed to give the type of apology that he had pictured. He now misguidedly does commit an act of vandalism against her, by painting a penis on her drive-way.

*Her hostility is not unreasonable, considering their previous history.

It follows a brief sequence on how the expectations of others, the roles we have been pushed into, and similar, can lead to poor decisions, even deliberate attempts to fulfill negative expectations—Dylan thought that others saw him as a villain and correspondingly behaved like a villain. While this is likely only partially true, there are at least two thought-worthy aspects to this issue. Firstly, that we should be careful with our expectations of others and the effects they can, at least sometimes, have. Secondly, that we should beware of potential influence from others through expectations, that we should deliberately counter such expectations (at least when negative), and that we ultimately must take responsibility for our own actions, even if they arose under such influence.

In a disturbing parallel to a recently discussed real case, it is claimed that the police brought him away in handcuffs in the middle of the night, over something as trivial* as a this. Now, I do not know whether this could have happened in the real world; however, I re-iterate how important it is that law enforcement act in proportion to the crime. Not only could this easily have waited until the following morning, it might even have been prudent to just ask him to come to the station at a given time. While I do not agree with the practice of some law enforcements** of letting all crimes below a certain level just slide, this is one case where the main issue might even be considered a civil matter between the two: He pays damages, apologizes, promises to never do it again, and we call it a day.

*To be contrasted with the original vandalism, were a figure of a hundred thousand dollars of damages was mentioned. In the act he actually committed, the cost of cleaning or repairing the drive-way is unlikely to exceed a few hundred dollars, possibly being far smaller.

**Including, in my impression, the German police.

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Written by michaeleriksson

May 30, 2018 at 5:26 am

A few more thoughts on lies under oath

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A recent post ([1]) of mine contained a brief discussion of lies under oath and similar circumstances*, especially with the claim that the accused** should be given some leeway to lie, not just to refuse a statement. Having run this through my head a few times since then, especially while writing [2], a few additional points:

*There are plenty of cases in various jurisdictions where telling a lie is punishable even with no oath present. For the sake of simplicity, I will speak just of “oath” below; however, most of what is said will apply with no, or very little, change to such other situations. Similarly, I will focus on criminal trials below, but at least some of the contents will generalize to other contexts. Notably, if someone is sued for civil damages over a killing (as e.g. OJ Simpson), he must have sufficiently similar rights, lest the civil case forces an incrimination that makes his rights during a criminal trial moot. (However, a more general right to lie during a civil suit should not be inferred: The clear majority of civil suits will give no defensible reason for a lie.)

**I stress that this is not extended to the accuser, be he a claimed victim or a prosecutor, who is in a very different position. Further, that an extension, if any, to witnesses would be restricted to the protection of the accused and others (including the witness, himself) who might be quasi-accused through a truthful statement, with very considerable other restrictions applying. For instance, a mere “he is my friend and I want him to go free” would not be enough motivation to justify a lie; in contrast, the “Jewish friend” example from [1] would. An example like “I did not do it; Y did” shows why I do not give even the accused free reign, just “some leeway”. (But I have not thought this area through sufficiently to give a suggestion for an explicit set of rules. A particular complication is that such rules would likely involve the “justness” of laws involved; with the secondary complications that this area is somewhat subjective and that the justice system will typically consider all laws just or to-be-obeyed-irrespective-of-justness in a blanket manner—even when it comes to e.g. violations of international norms or commonly accepted human rights.)

It is tempting to take the view that if lying is not allowed, trials become that much easier: Confront the defendant with a point-blank question and he will now either confess and we are three-quarters done, or he will reject the accusation and, should he have lied, face harder punishment than if he had told the truth. With sufficiently harder punishment, the guilty will have a strong incentive to tell the truth. There are several problems with this, however, including:

  1. That a confession is not necessarily truthful. For one thing, we have situations like Sture Bergwall (cf. [2]); for another, we replicate the problems around U.S. plea bargains*, if the additional punishment for lying under oath is severe enough (and if it is not, the system will not work anyway): Some, possibly many, innocents will proclaim themselves guilty in order to reduce the potential punishment, especially when they know that the risk of conviction is large**.

    *These come quite close to the above situation, the main difference being that a “rebate” is offered to those who confess, rather than a punishment extended to those who do not.

    **Note that this can be the case even for the innocent, be it through misleading evidence, a prejudiced jury, or some other circumstance.

  2. That a question could be (deliberately or accidentally) constructed to remove the possibility of expressing mitigating circumstances, be misunderstood by the accused through an imperfect understanding of legal terminology or the laws involved, or otherwise be causing a misleading answer. Consider e.g. the question “Did you in cold blood put the gun against the victim’s head and press the trigger? Yes or no!”: If that is what happened, the answer must be “yes”; however, central points of the longer answer “yes—but he told me that the gun was not loaded” are lost. Even if someone deliberately tried to construct a fair question, or even set of questions, chances are that he would fail.*

    *I am beginning to suspect that similar complications have contributed to the plea system: We start with an abstract plea of “innocent”/“guilty”/whatnot and use the trial to elaborate on the defense’s view (as well as the prosecution’s, etc.), because it is not normally realistic to present this view as the response to a single question. (In my first draft, I listed an “almost invalidation of the plea system” as one of the items speaking against the type of “point-blank question” discussed here, the two being similar in general principle but potentially very different in details and implications. However, by now I suspect that if the “point-blank question” was tried, it would actually, over time, evolve into some variation of a claim of “innocent”/“guilty” with an ensuing interactive elaboration, which basically brings us back to a plea system or something very similar.)

  3. This would severely reduce the possibility for citizens to cope with unjust laws and unjustly large punishments, say regarding a ban of certain political opinions.
  4. The question of who determines the truth grows even larger than it is today, with ample room for abuse, be it through incompetence or malice. View the courtroom scenes from “Pleasantville” for a good example of the potential problems.
  5. Not every faulty claim is actually a lie, and a rule like this could lead to punishment for accidental errors: If the matter seemed too unimportant at the time (e.g. because it did not occur to the perpetrator that his actions could be illegal), if too much time has passed, if the original situation was too stressful, or similar, it is quite possible that someone would be honestly unaware of, or have honestly misunderstood the implications of, an act that he actually committed.

On the other hand, we could have a possible credibility* issue: The point of taking an oath to tell the truth is the implied greater credibility, ideally to the point that whatever is said can be taken to be truth. Allowing lies would obviously reduce this credibility, doing more harm than good to the actually innocent. However, outside of times where people honestly feared divine punishment for violating oaths*, the actual gain in credibility is likely quite low as it is. To boot, it is well-known that memory imperfections and influenceability make most people poor witnesses—even when they do try to tell the truth: No oath can make up for a flawed memory. As a juror, I would almost certainly give less weight to oaths than to the consistency and plausibility of the claims themselves. Possibly, also to perceived credibility, impartiality, whatnot of the witness. (My reservations arising from the knowledge that it is very easy to misjudge people, especially when having no individual base-line for comparison, and the relatively weak correlation between apparent confidence and e.g. being truthful or being factually right, between apparent and actual friendliness, etc.)

*Indeed, in my impression, the taking of oaths is a legacy from a time where trials needed to be settled mostly through the credibility of the involved parties and their witnesses, due to factors like a complete absence of forensic science, the need to wait for months until a traveling court came by, whatnot. (As an aside, with the growing means of manipulating evidence and the near uselessness of digital evidence, we might eventually move back in this direction.)

A way to partially resolve these issues, without allowing lying, is to strictly forbid a certain type of question (e.g. “Did you shoot him?”), and, going by TV, this might actually partially be the case in the U.S. However, I am skeptical as to whether this would allow the same degree of protection.

As an aside, some of the above discussions and [2] also point to why I strongly believe in statutes of limitation*, even for e.g. murder, and that the common trend to increase or abolish them is a sign of barbarism, not civilization: To, say, put someone in court for a murder that took place fifty years earlier more-or-less guarantees that memories will have been distorted or lost—for instance, what accused can say what he did at a certain day fifty years earlier, let alone at what time. Outside of the main topic, it also severely increases the risk of physical proof being destroyed or contaminated, alibis and other witnesses dying, etc.—usually in a manner that one-sidedly favors the prosecution, which could document evidence and testimony shortly after the murder, while the innocently** accused might not even have heard of the event until said fifty years later and might now have to drum up a defense out of nothing. For sufficiently young perpetrators (who are guilty) relative the time passed, we might also have to consider factors like changes as a person over the intervening time—is it really right that a ninety-something is dragged into court because he served in a Nazi extermination camp when he was twenty? At such extremes, it seems less like justice to me and more like vengeance—or even abuse of the justice system for political gains.

*Exactly what limits for what crimes is a too big question for this post, with the need to carefully judge the severity of the crime, the options for the investigation, chance of new evidence, whatnot, vs. fairness towards the suspect. For murder, I could imagine that we land somewhere between five and twenty years, but where in that wide interval would be pure guesswork. (A deeper analysis would also need to consider the possibility of waiting periods and extensions, and possibly other exceptions to a plain limit.)

**Obviously, laws around statutes of limitations must accommodate the presumption of innocence. The common blanket reasoning that there should be no statutes of limitations, to ensure that no guilty party will go unpunished, is not compatible with this principle. Generally, many of the problems with debates around law enforcement and the justice system, including e.g. surveillance, go back to a too great focus on “getting the bad guy” and too little regard for the danger of getting the innocent instead. (As is likely clear from my recent posts, I am very aware of that danger.)

Written by michaeleriksson

May 11, 2018 at 11:45 am

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

The danger of neglecting civil rights / absurd events in Canada

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I have seen a recent slew of news articles in Germany dealing with various restrictions of citizens’ rights and/or removal of protective restrictions on police (and whatnot) work, notably in Bavaria; and recently heard of a very similar negative development in Austria. I had planned to write a post on these (see also a few older discussions, e.g. [1], [2]), but yesterday I encountered a Canadian case so grotesque and Kafkaesque that I will refocus on it.

It appears* that a government server made a few thousand documents accessible to the public. In most cases, these documents were actually intended for public consumption; in a few hundred, due to gross negligence, they contained data that should have been kept secret**. A teenage boy went to this public server, having no idea (and no even semi-reasonable reason to assume) that there was sensitive information present, and automatically downloaded the complete set of documents, using the observation that their names were based on a trivial numbering scheme.*** The subsequent events included e.g. a 15-officer raid on his home, the seizure of several computers (only one of which belonged to him), and unacceptable actions towards his younger siblings by the police.

*I draw on a CBC article and several links in that article.

**Specifically, personal information relating to individual citizens.

***This type of automatic download is something that I have done repeatedly myself, be it either to allow my self off-line access or to circumvent a poor user interface. There is nothing remarkable about someone with the right knowledge doing something like that, it is a perfectly legitimate technique, and (unlike the apparent characterizations by the police in this case) it does not constitute any type of security breach/circumvention.

There are several troubling aspects involved, including:

  1. A massive overreaction, even had something illegal taken place, with a complete disregard of the interests of the “criminal” and his family. I note in particular that the act of seizing computers is almost never acceptable (although often legal and commonly used), cf. [1]. The size of the operation and the treatment of the individuals, including several teenagers, the lack of access to lawyers, etc., speak for themselves.

    A particular issue is the (lack of) illegality of the downloads per se: There is nothing here that could have been deemed illegal by any reasonable third-party (barring the possibility of utterly absurd Canadian laws)—and this must have been obvious even at the beginning of the investigation.

    Another issue is the “mens rea”: There are no even semi-reasonable grounds to assume its presence and no reasonable possibility to prove it*—and this, too, must have been obvious even at the beginning of the investigation, meaning that even if the act had been criminal, this was the wrong way to retaliate.

    *There are cases when a “mens rea” is an almost given; there are cases where it might or might not have been present; and there are cases where it more-or-less can be ruled out in advance. This is one of the latter. A reasonable analogy would be if someone went to a public information stand, picked up one of each of the present brochures, and one of the brochures turned out to contain classified information that should never have been put there in the first place.

    At best, the events are proof of truly massive incompetence and lack of judgment on behalf of the police and other involved government agencies; at worst, it is a deliberate abuse of power. Someone or some group needs to be fired, possibly even prosecuted, over these events.

  2. Even the fact that it was possible to track the events back to the individual are potentially troubling (depending on circumstances that are not described in the accounts I have seen). Most likely they involve a storage of IP addresses that would have been illegal in Germany, as well as a back-tracking of IP addresses in a manner that should be reserved for bigger crimes.

    Of course, if this “crime” had been perpetrated by a competent malicious entity, such back-tracking would not have been possible, or only possible with considerably more effort, seeing that such an entity would have used some type of anonymization, e.g. through multiple VPNs or Tor. Often, this entity would not even have been in a jurisdiction where it could have been touched. Regular local teenagers can be caught this manner; professional crackers working for the Russian government or a criminal organization can not. This is one of many examples of rules, regulation, technical counter-measures, …, that affect the innocent, the naive, the small-time criminal, whatnot, heavily—while leaving the big-timers merely inconvenienced. (Cf. e.g. a post on DRM.)

  3. The original download of secret data was only possible due to gross negligence and/or incompetence on behalf of the government—again, the type where a firing, possibly even a criminal prosecution, is the correct measure: Personal, secret information was put on a public server without any type of protection, no password, no encryption, …

    Either the decision makers and/or developers* realized that this type of download was possible, were grossly negligent in not improving the setup, and need to be fired; or they failed to reach this absolutely obvious realization, implying such a lack of competence and judgment that they need to be fired. Take your pick: Either way, they need to be fired.

    *I am too far away from the issue to be more specific. For instance, if the decision maker(s) were told of the problem by a junior developer, and instructed the junior to ignore it, the junior might be forgiven. For instance, if a senior developer saw the problem and failed both to correct the matter and to discuss it with the decision maker(s), the decision maker(s) might be free from blame.

    In fact, the situation is so embarrassingly bad, that I am surprised that whoever is in charge did not prefer to hush it up… Then again, the understanding of how embarrassingly bad it was might have also been missing, considering the demonstrated incompetence…

    (The articles that I have read have been weak on technical details, but from context I would speculate that there was a scheme in place, where inquiries by the public were answered by uploading a file, giving the inquirer the URL to the file, and then relying on no-one else knowing the relevant URL for secrecy. This would be an inexcusably incompetent application of “security through obscurity”: Security through obscurity is not acceptable as more than an additional measure on top of the real security to begin with. Here, however, it was doomed to complete failure from the start because of the naming scheme used—there was no real “obscurity” present either, meaning that even the pseudo-security it could have given was absent.)

A highly disturbing part of these developments in general is that countries normally considered “highly civilized” (“progressive”, “democratic”, “modern”, whatnot; often ranking highly on e.g. the Human Development Index and the Where-to-be-born-Index) are surprisingly great offenders: The problems are not limited to dictatorships or countries lacking a “democratic tradition”. In at least some areas, the likes of Canada, Australia, and my native Sweden, are actually among the worst offenders, especially when it comes to issues of morality, orthodox thought, sexual behaviors, … (Possibly, due to a larger influence of PC groups. Canada, e.g., has repeatedly caused controversy in areas like human rights and free speech.)

I suspect that this is due to a mixture of two factors: Firstly, many of these countries have grown used to strong governments and massive government interference in daily life. Secondly, these countries are often far away from a period of massive “evil”* government and have forgotten that laws and regulation concerning the government and its agencies, especially law enforcement, must be written under the assumption of an “evil” government, in order to protect the rights of the citizens and to protect the core democratic values**. (I considered adding a factor of “politicians are convinced that they know best” or similar, cf. several older posts; however, I very much doubt that this is specific to this type of country.) My adopted Germany, sadly, provides a partial counter-example to this: Yes, I can see how people would be short-sighted and historically ignorant enough to overlook the relevance of the events in Nazi-Germany, with only a small fraction of the current population having a part of their adult lives in that period; however, the collapse of the GDR is only three decades back.

*There are many cases, including most dictatorships, where the government has been more-or-less an evil throughout. However, even in the absence of such “great evil”, there are countless “small evils” in basically any state, be it through self-serving and vote-fishing politicians, incompetent or lazy civil servants, corrupt judges, laws that are not sufficiently well thought-through or violate the constitution, … The core of civil rights is and must be protection against the government, not only to make it harder for a “great evil” to arise, but also to protect us against the daily “small evils”. Unfortunately, depressingly large parts of the population (let alone government…) seem to believe that the government is good through-out and will remains so ad eternam.

**I note that I consider such values to be more important that democracy it self, with democracy being merely a “least evil”. Cf. e.g. Democracy Lost.

Written by michaeleriksson

May 1, 2018 at 5:29 pm

A modest proposal

with 3 comments

Earlier today, I received a most disturbing communication from my good friend Jonatan Schnell. He has got his hands on a number of secret documents from various government agencies, and has asked me to publish the following excerpt:

This noble organization has been entrusted with two central tasks:

  1. Ensuring sufficient surveillance that unwanted transgressions of any kind are detected in a timely manner, ideally including the expression and formation of unsound opinions.
  2. Ensuring swift, accurate, and unavoidable corrective measures for such transgressions.

The last decades have seen many technological advancements and developments that raised our hopes of finally reaching success. Unfortunately, despite many partial successes, they have all eventually proved insufficient. I hardly need reminding you of how physical inspection of hard-drives has proved to be very fruitful, yet has far too often failed in the more important cases, through the use of high-grade encryption, often in conjuncture with the transgressor’s claim of “having forgotten” the passwords. Encryption in general, of course, has been a major obstacle, including not only hard-drives but also email communications and alternate networks like i2p and tor. Even HTTPS, although easy to circumvent, has caused considerable over-head, delays, and missed opportunities. Or take the unfortunate case of the aforementioned alternate networks: Left alone they risk nullifying our communication surveillance and de-anonymizing of Internet communication. (I stress again how important it is to continue our infiltration campaigns.)

The reason for failure is almost always that we are too far away from the immediate interaction, either in time or geographically. The best, but invariably most and often impracticability expensive, results are reached when we can apply direct surveillance, e.g. through camera and microphone monitoring or the installation of software directly on the computer of the transgressor. It is to be feared that even the most promising in-roads available, including the intended use of service providers such as Google, Facebook, and CloudFlare, will never suffice to meat our requirements, especially with the more surveillance-hostile elements.

The logical conclusion is to take this one step further, in a manner that ensures that all potential transgressors can be surveilled at a moments notice at no additional cost (after, admittedly, a high initial investment):

The enhancement of our citizens through physical implants to monitor their audio-visual input, including, indirectly, what they do, say, write, etc. In addition a GPS module might be added, allowing us to pin-point the location of any and all citizens at any given moment, as well as allowing us to track their movements and physical meetings over time. (Of course, some of the same benefits can be reached through tracking cell-phones. These have the weakness that they can be left at home, run out of batteries, or be temporarily shielded.) Long term additional surveillance of brain patterns, heart beat, and other biological signs can prove a valuable addition. For instance, if someone reacts negatively to a government message, we would immediately know that there is need for more dedicated surveillance; if someone reacts with arousal to another party of the wrong gender or below the age of eighteen, this can be registered and the corresponding warnings be issued to neighboring residents; and so on. The addition of the possibility to produce auditory or visual stimuli is particularly interesting. For instance, when a transgression is detected in flagrante the transgressor can be given immediate notification and instructions from law officers to stand down and await arrest.

To avoid removal or more temporary manipulations, these enhancements would regularly and automatically be in communication with a central controller (e.g. by radio or the cell-phone network). Any time an enhancement misses a check-in, this if filed as a violation and an APB is put out. After the transgressor has been apprehended, the enhancements are checked and/or replaced (at the transgressors cost) and corrective action is taken when appropriate. It would of course be made illegal to provide or use any structure or equipment that blocks the needed signals.

In the long term, the enhancements can be provided with the ability to directly incite an algesic response when the check-ins fail, as well as during any detected attempt at removal. This can be extended to a greater range of transgressions, like trying to enter or leave the country without using the official border crossings. Additional possibilities for aversion therapy are open: The wrong reactions to certain stimuli, the expression of unsound opinions, and other correctable transgressions of a similar nature can be swiftly and automatically handled by the enhancements themselves, causing the transgressors to associate such deviations with the algesic response.

Following this trail to its end (but here I fear that the political climate is not yet sufficiently matured) enhancements can be used for more conclusive corrective actions. Consider replacing the lengthy and costly procedures around e.g. a lethal injection by reaching the same result with a minor trauma in a suitable brain region. Or permanently incapacitating a hostage taker remotely, with the push of a button, through the same mechanism. Or removing a threat from a greater group (e.g. the Irish) of potential transgressors in one single action, including cases where large-scale incarceration or deportation would be the alternative.

A few practical details: Normally the enhancements would be added shortly after birth, ensuring that everyone is included from an early age (and as a positive side-effect reaps the benefits from the appropriate feedback to reactions and behavior even during childhood). Unfortunately, it would take several decades to reach a reasonable coverage in the adult population in this manner; while a single mass-enhancement in the entire adult population would be entirely impractical. A reasonable middle road is a two-pronged approach where high risk groups, notably convicts and those potentially engaged in subversive activities (including critics of our operations), are targeted with a mass-enhancement and the remainder of the population is enhanced at certain occasions where the necessary equipment can always be reliably made available, e.g. a driver’s license renewal or when first entering the country. This has the added advantage that enforcement can be kept high and voluntary through making the enhancement a mandatory condition for the government granting a driver’s license, letting someone into the country, and so on. Ideally, we will even be able to pass on the cost of the enhancement to the respective citizen.

While the costs of this might seem prohibitive in a first impression, there are considerable reason to believe that we can leverage these enhancements to not only cover the costs of the project but to allow additional financing of related projects, once a sufficient critical mass has been built. Our preliminary research indicates a great industry interest in access to selective gathered data for purposes such as targeted advertising and market research. Or consider allowing advertisers to send information directly to the ears and eyes of the subject, without having to use conventional devices that can be turned off or the advertising otherwise circumvented. The possibilities are endless.

Postscript: For those who have missed the allusions, the above is entirely fictional, specifically making a play on Jonathan Swift’s work by the same name, in which he suggests using Irish children as a food source. However, apart from the most extreme parts, the above is well in line with current developments with regards to e.g. governments cracking computers or smart-phones, engaging in unethical and often unlawful surveillance, etc. If the suggestions were viable today, at least some of them would be on the table with at least some politicians, law enforcers, and the like. This just looking at the modern West—in North Korea they would conceivably go all out.

Written by michaeleriksson

November 21, 2016 at 12:04 am