3 ms·

You’re thinking like a programmer, which is fine, but it’s not how lawyers think and operate. The law is not read literally in most cases — even in traditional

You’re thinking like a programmer, which is fine, but it’s not how lawyers think and operate. The law is not read literally in most cases — even in traditional property crime cases — and never has been. (“Breaking and entering” is a perfect example.) It can’t be, because English is an imperfect language, and situations in which the law is applied are frequently complex and novel. And I don’t think society wants an overly complex and literal legal system: not only will it be even more difficult to understand, but it will encourage even more attempts to evade it and leave a trail of innocent victims until we patch the law to fix the bug. (And if you think it can take software companies a long time to address vulnerabilities, the legislature can take an eternity). As I’ve said elsewhere, you’re not going to be punished for the mere act of accidentally downloading an open file. Courts look at the totality of the circumstances to determine whether a crime was committed, and the adversarial system makes it such that the prosecutor is going to have to prove beyond reasonable doubt that not only did the proscribed activity occurred, but that the defendant had scienter (required intent/state of mind) and that in a case like this, the circumstances suggested that the data was not intended to be public. And as a defendant you will have the equal opportunity to argue that you didn’t violate the law, or that it was a mere accident. But if you’re keeping a cache of these stolen files around or sharing them with others, then perhaps you’re not so innocent. There’s an old axiom that “a liberal is a conservative who’s been arrested; a conservative is a liberal who’s been mugged.” If you ever become a victim of a crime, you might appreciate these protections in a way you seem not to today.

giantg2 5y ago
"But if you’re keeping a vault of these stolen files around or sharing them with others, that suggests perhaps you’re not innocent." Perhaps you don't understand the (stated) facts around this case. They didn't copy/steal the files, merely pointed others to the publicly available S3 bucket. Could there be more details that we don't know? Sure. But this is the situation being discussed here. "As I’ve said elsewhere, you’re not going to be punished for the mere act of accidentally downloading an open file." How so? Courts have held that you are bound to the ToS even if you didn't read it. That you accepting those ToS implicitly and then violating them is sufficient scienter to prove you knowingly exceeded your authorization (which again, typically defines boundaries poorly) and violated the CFAA (except for that one case law about accessing unsecured things that I can't find). "And if you ever become a victim of a crime, you might appreciate these protections in a way you seem not to today." Who says I haven't been a victim of a crime? I have. I still think that many cyber laws are not appropriate. Of course most victims will view the protections favorably - they value benefit to themselves more than benefit to society; they aren't impartial. Perhaps you will better understand my position if you've ever been screwed over by the system and had your clearly defined rights violated (even when a civil rights lawyer agrees that it was a violation but that the courts don't care). The system does not care about justice or doing what's right. You can't call it justice when it's estimated 2-10% of incarcerated individuals were wrongly convicted. The system cares only about itself and its privileged participants as evidenced by such travesties as the privacy of judicial complaints trumping ones right to exculpatory evidence. The basis they give for this privacy is that the public would lose trust in the system, which is only true if incompetence and misconduct was common and not appropriately dealt with. The judges ruling on these topics are not impartial and simply granting themselves additional privileges. "The law is not read literally in most cases" The law has to be sufficiently defined so that people can know it. Ambiguity is supposed to benefit the defendant under strict construction and reasonable explaination/doubt because the law is unknowable because it is not defined. There is also precedent stating that laws cannot be interpreted contrary to their language. Sure, interpretation can take place as to what the spirit of the law is, but it cannot violate the letter in doing so. Unfortunately we see this precedent violated in other rulings (I've seen it personally in applying non-scienter absolute liability to an offense that explicitly applies a reasonable standard of care). '“Breaking and entering” is a perfect example' How so? The title of the crime might not encompass the totality of its application, but the actual elements of the offense should be defined under the section and applied consistent to that definition. "... but it’s not how lawyers think and operate." Based on this and other parts of your conversation, it sounds like you may be involved in and benefiting from the system. It seems you may not be impartial and are likely exhibiting some bias to quell the cognitive dissonance of participating in a flawed system so that you can maintain the status quo that is beneficial to you.
- otterley 5y ago
  I think we are in violent agreement that the system is imperfect and that it could use some fixing, and that there have been some serious travesties of justice that we should all be ashamed of. (I’m personally of the opinion that a prosecutor who intentionally withholds potentially exculpatory evidence from a defendant should be fined, disbarred, and banned from running for or holding a public office ever again.) By all means, advocate those fixes, and make your case to your representatives who are in the best position to address your concerns. But we are pretty far afield from the basic question here, which is about keeping out of other people’s stuff without consent. If we can’t agree on the basic morality of that, and whether people should be punished when they intentionally don’t, then I guess there’s no place to go. (We don’t know the facts of this case. But even if the OP only discovered and communicated the locations of files, they could still be guilty of a crime if they conspired with someone else to actually use the referenced data without authorization. Conspiracy is a powerful tool in a prosecutor’s belt.)
  - giantg2 5y ago
    "which is about keeping out of other people’s stuff without consent. If we can’t agree on the basic morality of that" That's not what's being discussed. I think we agree that violation of one's private things/data or trespass is wrong. Where the contention lies is in what circumstances the person can expect to have that privacy and what the definitions are/should be to maximize societal benefit when it comes to internet usage. "and whether people should be punished when they intentionally don’t, then I guess there’s no place to go." Intentional access isn't even at issue here. "Knowing" access is all it takes under the law. I put knowing in quotes here because a prosecutor can prove that simply by your violation of the implicit agreement to ToS, even if you never read or knew them. So the issue isn't that people who knowingly or intentionally violate privacy/trespass need to be punished, it's in identifying when a violation has actually occurred, equally enforcing it, and whether the law is appropriately crafted to protect everyone and provide societal benefit. The way it is crafted now is not well defined, is not equally enforced, and can be used against people who have no ill intent or even knowledge that something was wrong. So not about punishing people who should be punished, but about the ability to punish those who shouldn't, as well as how to define them. So yeah, we can't agree on this topic, but your strawman argument of why is not the reason.

giantg2 5y ago

"But if you’re keeping a vault of these stolen files around or sharing them with others, that suggests perhaps you’re not innocent." Perhaps you don't understand the (stated) facts around this case. They didn't copy/steal the files, merely pointed others to the publicly available S3 bucket. Could there be more details that we don't know? Sure. But this is the situation being discussed here. "As I’ve said elsewhere, you’re not going to be punished for the mere act of accidentally downloading an open file." How so? Courts have held that you are bound to the ToS even if you didn't read it. That you accepting those ToS implicitly and then violating them is sufficient scienter to prove you knowingly exceeded your authorization (which again, typically defines boundaries poorly) and violated the CFAA (except for that one case law about accessing unsecured things that I can't find). "And if you ever become a victim of a crime, you might appreciate these protections in a way you seem not to today." Who says I haven't been a victim of a crime? I have. I still think that many cyber laws are not appropriate. Of course most victims will view the protections favorably - they value benefit to themselves more than benefit to society; they aren't impartial. Perhaps you will better understand my position if you've ever been screwed over by the system and had your clearly defined rights violated (even when a civil rights lawyer agrees that it was a violation but that the courts don't care). The system does not care about justice or doing what's right. You can't call it justice when it's estimated 2-10% of incarcerated individuals were wrongly convicted. The system cares only about itself and its privileged participants as evidenced by such travesties as the privacy of judicial complaints trumping ones right to exculpatory evidence. The basis they give for this privacy is that the public would lose trust in the system, which is only true if incompetence and misconduct was common and not appropriately dealt with. The judges ruling on these topics are not impartial and simply granting themselves additional privileges. "The law is not read literally in most cases" The law has to be sufficiently defined so that people can know it. Ambiguity is supposed to benefit the defendant under strict construction and reasonable explaination/doubt because the law is unknowable because it is not defined. There is also precedent stating that laws cannot be interpreted contrary to their language. Sure, interpretation can take place as to what the spirit of the law is, but it cannot violate the letter in doing so. Unfortunately we see this precedent violated in other rulings (I've seen it personally in applying non-scienter absolute liability to an offense that explicitly applies a reasonable standard of care). '“Breaking and entering” is a perfect example' How so? The title of the crime might not encompass the totality of its application, but the actual elements of the offense should be defined under the section and applied consistent to that definition. "... but it’s not how lawyers think and operate." Based on this and other parts of your conversation, it sounds like you may be involved in and benefiting from the system. It seems you may not be impartial and are likely exhibiting some bias to quell the cognitive dissonance of participating in a flawed system so that you can maintain the status quo that is beneficial to you.

otterley 5y ago
I think we are in violent agreement that the system is imperfect and that it could use some fixing, and that there have been some serious travesties of justice that we should all be ashamed of. (I’m personally of the opinion that a prosecutor who intentionally withholds potentially exculpatory evidence from a defendant should be fined, disbarred, and banned from running for or holding a public office ever again.) By all means, advocate those fixes, and make your case to your representatives who are in the best position to address your concerns. But we are pretty far afield from the basic question here, which is about keeping out of other people’s stuff without consent. If we can’t agree on the basic morality of that, and whether people should be punished when they intentionally don’t, then I guess there’s no place to go. (We don’t know the facts of this case. But even if the OP only discovered and communicated the locations of files, they could still be guilty of a crime if they conspired with someone else to actually use the referenced data without authorization. Conspiracy is a powerful tool in a prosecutor’s belt.)
- giantg2 5y ago
  "which is about keeping out of other people’s stuff without consent. If we can’t agree on the basic morality of that" That's not what's being discussed. I think we agree that violation of one's private things/data or trespass is wrong. Where the contention lies is in what circumstances the person can expect to have that privacy and what the definitions are/should be to maximize societal benefit when it comes to internet usage. "and whether people should be punished when they intentionally don’t, then I guess there’s no place to go." Intentional access isn't even at issue here. "Knowing" access is all it takes under the law. I put knowing in quotes here because a prosecutor can prove that simply by your violation of the implicit agreement to ToS, even if you never read or knew them. So the issue isn't that people who knowingly or intentionally violate privacy/trespass need to be punished, it's in identifying when a violation has actually occurred, equally enforcing it, and whether the law is appropriately crafted to protect everyone and provide societal benefit. The way it is crafted now is not well defined, is not equally enforced, and can be used against people who have no ill intent or even knowledge that something was wrong. So not about punishing people who should be punished, but about the ability to punish those who shouldn't, as well as how to define them. So yeah, we can't agree on this topic, but your strawman argument of why is not the reason.