Tweets aren't under oath or anything, but it opens up Carmack to lots of questions and possibly affects his credibility.
Often times cases come down to "he said / she said" types of claims and how a jury views them.
If ZeniMax mentions the tweets in court, it will likely be to try and make Carmack look like he acted out of hand, and that he rushed to make claims that arne't true (i.e. the IP / code distinction the poster makes).
Here's the thing about software suits. Most judges / juries are in a TERRIBLE position when it comes to evaluating the nuance involved in a suit like this. Think about the average person and how much they understand about what you do.
Lawyers will try to boil it down to themes and narratives that portray you as "bad." "Winning" in terms of how you evaluate claims or the press or your followers evaluate claims does not matter. It's all about how the lawyers convince a judge or jury you are wrong.
It's not always that simple. There is never anything wrong with talking about a case in principle. As an attorney myself I am often asked to look over this sort of article, press release or other notification. I encourage my clients to be open if they have nothing to hide.
However even posting honest, accurate articles online can come back to haunt you. Unless written very precisely, words can be interpreted by different people differently and often in a way that wasn't intended by the author.
This process doesn't have to be a cynical twisting of words - naturally, a reader's interpretation will be informed by their pre-existing point of view. When that view is one of a litigant, it can open up new issues in a case and lead to new ways to analyse evidence.
If you are posting about a case, make sure you're doing it calmly and definitely get it edited by your lawyer!
There is a skill to writing a press release. Think of how often people take things out of context during an argument on the internet. Now imagine they have a financial motivation to do so.
The basic advice of "Don't just do something; stand there!" is sound, but I'm curious if you (or other people) have practical suggestions on how to do that. In practice, it can be quite difficult to do nothing when it feels like that action is desperately necessary.
When sued the appropriate action is to immediately higher a qualified lawyer with expertise in the specific area. Then follow his advice. Until you do that... do not do ANYTHING.
Sure. That's explaining what to do, which was already established. I asked about how to do that. "Do not do ANYTHING" is easy advice to give, but very hard to implement.
In this age of technology that tries to predict and guess our intentions based on patterns and hand wavy algorithms, it's also safe to assume that autocorrect just outright got it wrong when it corrected an entire phrase. Much as grammatical faux pas irritate my mild obsessiveness, I've learned to just let them slide. Personally, I try not to let such edits slip past me, but they often do. It's usually IM and the person on the other end gets a good laugh, but the intent is typically evident.
I'm curious to know if, were the tweets to be used, they would also have to prove it was he that made them. Sure, they're from his account, but would that hold up in court? See: the many celebrities who have people tweet on their behalf with their (the celebrities') account.
Ianal, but in a deposition he would be asked whether they were his tweets or not.
If he denied they were, he would be asked further questions and possibly caught in a lie. Such as "is this the only time that your account has been used by someone other than yourself?" or "So you are saying that this is the only tweet that you didn't make but the others before and after you did". And so on. My guess is that he would be advised to tell the truth to prevent getting further trapped as far as his credibility. There may also be other people that he discussed the tweets with that could be brought into the picture as well under oath in court I'm guessing. Bottom line: Denial is easier said than done.
To add on, some attorneys spend their whole lives tearing apart people who lie. Unless you are professional psychopath, you are completely outclassed here.
Agree. Would also add that if you lie infrequently you are probably not prepared to know all the potential pitfalls of lying and how the other person can tear you a new one if you want to call it that.
Additionally I've noticed a loose correlation between people who lie and who their parents are or how they were raised. Nothing scientific of course, but people whose parents don't hold their feet to the flame are generally more likely to think that they can get away with something because "the other guy is stupid". People whose parents are either very intelligent or hold them on everything they say are generally more practiced at thinking of the various possibilities that can come about to refute something they would say.
It doesn't depend on anonymous tips, but encourages them.
PJ is basically saying she wants to prevent folks from sending her honest questions about things they have done or are involved from admitting guilt to law enforcement who can read everything.
Make sense, but I still think it's an overreaction. My original question still stands (is it irresponsible for the EFF/ACLU/etc to continue to operate with an online mailbox?), and I would also argue that PJ could mitigate this by simply removing any contact form or information from her site. Yes, people who know her email can still contact her anyway but obviously, that means they can already do that after the site is shut down. Groklaw could continue to operate as an outspoken advocate for legal freedom...perhaps Glenn Greenwald will find himself in a similar position, in which all communication to him is expected to be compromised, but I'd still think he'd continue to do his reporting and writing even if his sourcing was scarce.
DannyBee is absolutely correct. To my knowledge, data on a computer would be handled like an offender's diary, and that is certainly admissible in court, assuming authentication that the diary was actually written by the offender.
Data is interesting because authentication can arguable be harder to prove. (handwriting is pretty easy to attribute)
The truth is, the founding fathers likely could not have imagined in their wildest dreams that we could have all of human history on a flash drive with us at all times. Trying to apply "how they would have thought" or "WWFFD" to every new technology is kind of insane.
I read GauntletWizard's point as that such devices are becoming like "brain prostheses." If the device were embedded in your skull/brain, but could be wiretapped, would it be subject to the fifth amendment? If technology develops to read information from another's brain without their consent, would that be subject to the fifth amendment?
An interesting question.
Again, the main historical reason for the fifth amendment was torture, not to avoid knowing the truth, or that you were somehow magically sacred.
If you could read it out of people's brains, harmlessly, painlessly, etc, i think that would be fine.
Now remember, the fifth amendment protections apply in custodial settings (and similar), so you would already have to have been arrested/etc at this point (IE probable cause would have existed).
In that situation, if i could read your brain to get the truth, harmlessly, and painlessly, I have trouble seeing how that would be against the reason the fifth amendment was created (now, it may arguably run afoul of the fifth amendment as written, though things like blood tests, etc, are not considered testimonial. I don't believe literal memories would be either)
If you could read it out of people's brains, harmlessly, painlessly, etc, i think that would be fine.
I must state that this sentiment sickens me slightly. I sincerely hope that this interpretation is absolutely unthinkable by the time technology reaches that point. I don't believe that any world in which one's thoughts and memories are not private can ever be free.
Sorry, I should have been clear: I meant fine legally, in the context of the fifth amendment.
It is not a statement of what I believe the social view/norm/etc should be, or whether it should be allowed.
Only an objective assessment of whether it would fall within the context of what was currently protected and the intent of protecting that.
Personally, I would find it abhorrent, but that is not particularly relevant to the law.
I read something recently --- can't remember what --- that suggested that the expensive ceremony around obtaining phone wiretaps at the state level were in part motivated by the concern that wiretaps came close to reading the thoughts of the accused.
I imagine this is more along the lines of 4th amendment or thoughtcrime.
I actually believe we are likely to need another amendment to protect us in the future, because I don't think the fifth does or would do a good job of this.
I think this is one of the sources of abrasion between lawyers and hackers on HN -- the distinction between "legal" and "ethical" is not always made clear. Sometimes you'll see a hacker post that things must be one way, while a lawyer replies that, no, in fact, they are completely the opposite (the hacker invariably reads "you imbecile" after this, even though it's not actually typed ;-) ).
In reality, the hacker may have a perfect understanding of the current law, but disagree with it vehemently, while the lawyer's personal philosophy is actually in agreement with the hacker's statement.
"In reality, the hacker may have a perfect understanding of the current law"
Maybe?
I find engineers, like a lot of intelligent people, read a lot and think this means they understand things. If they spend their time starting by reading and learning fundamentals, i'd agree with you.
Instead, a lot of the time, IMHO, they read and understand particular cases in particular jurisdictions, and then take that as a truth that applies elsewhere, when it doesn't.
Maybe someday i'll make a law for hackers course as a MOOC.
They also want the law to be logical, and present logical extensions of arguments (IE they want the law to be an entirely rule based system, where if all rules are memorized, all outcomes are clear) . It's certainly a necessity to be able to reason logically, but the problem is, at its core, the law is about people and situations, and not logic. Logic is just a method that is used to come up with some possible solutions to these problems, and to determine possible outcomes. It is not a god that must be followed at all costs.
IE Judges are not going to do things just because they are logical, because they are people, and not logical reasoning automatons. The law's goal is to serve a societal need, not to be theoretically sound in all cases.
This often grates on most engineers, who want bright lines and definite answers.
Anyway, this is my experience having been a "real" engineer for 15 years before/during/after becoming a lawyer, and talking to an ungodly number of engineers over the years about things.
It could be my view is skewed because of the career path i've taken :)
I do agree that there is tension between lawyers and engineers on HN, but IMHO, this is due in large part to most lawyers being able to objectively detach their feelings from their legal analysis of a situation (something one is trained to do in law school), and forgetting to mention they are doing this.
This often grates on most engineers, who want bright lines and definite answers.
FWIW, the thing that bugs me the most is that sometimes the bright lines are more important than the soft stuff like intent and sometimes they are not and there is little rhyme or reason for why. I'm not just talking things like strict liability versus mens rea either, its just that I don't have a good example off the top of my head. Maybe AT&T vs Weev?
>The truth is, the founding fathers likely could not have imagined in their wildest dreams that we could have all of human history on a flash drive with us at all times. Trying to apply "how they would have thought" or "WWFFD" to every new technology is kind of insane.
While entirely true, i think, given the history around the fifth amendment, it would be quite a stretch anyway.
Sweet. I had to jump off last night, but I did some criminal appointments in both federal and state court to get some courtroom experience while fresh out of law school. Certainly not an expert, but capable of having a fairly deep discussion on search & seizure.
I completely agree with what you wrote above about how just because folks like you or I say "oh, this is/isn't legal" doesn't mean we agree with it.
DannyBee and PG are having a conversation in a sewer beneath Boston. DannyBee tells PG that he is going to rob the town bank and set it afire.
This was a verbal communication between the two.
There was a USG agent around the corner in another tunnel. He heard an echo of the two talking. This is the only evidence of the two communicating about the matter.
How is this prosecuted?
(please forgive the weak analogy - and improve if you can... but please tell me the 1790 equiv argument for what we are dealing with where the snooping is either protected or denied)
Could you explain the history of the 5th ammendmment in this context? I understand from some light Wikipedia reading that it was originally around mostly to prevent tortured confessions. Why is it still relevant at all?
The search incident to lawful arrest doctrine is rooted in officer safety. Specifically, the Court says officers should have the ability to look for guns and contraband when someone is pulled over and it's likely they are armed or their immediate person or vicinity poses a threat and/or has evidence of a crime. The courts have decided that any drug suspicion means they are likely to have a weapon, which is unfortunate, but at least based in some reality.
To my knowledge, the only court (and courts are split) that has allowed electronics to be searched is when a drug dealer was pulled over in California and incident to lawful arrest, the officer downloaded the call history to help them find others involved in the drug trade.
There is NO COURT to my knowledge that would authorize warrantless search or confiscation of someone's cell data, computer data, jump drives, etc. without an arrest taking place. That is a fishing expedition and it's exactly what the Court has ruled unconstitutional under the 4th amendment.
This is where I get very frustrated with the NSAs ability to collect the call information in the first place. The only reason to collect it is to fish later—that's not how the law is supposed to work.
These are complex problems that very few judges or lawmakers have enough understanding of technologically to make informed judgement, IMHO, however.
EDIT - My best guess is that the Court will allow basic access to a cell phone taken in a lawful arrest. I.E., like the article linked above, an officer would be able to look at the call history, but not necessarily download the content of the phone. I think the offender's brief will likely ARGUE that the phone not be accessed at all, with the true hope being the Court merely limits what officers can do.
I have a hard time believing they won't let officers look at any of the electronics with them. I also hope they don't just let officers download everything carte blanche.
The case we're talking about was search after arrest.
If immunity [to a warrantless search] is to be conceived of as a rule, there is one exception that has been established as firmly as the rule itself. The government may search the person of the accused when legally arrested to discover and seize the fruit or evidences of crime.
also (cited in Harris v US):
The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things of effect an escape from custody is not to be doubted.
Officer safety is one of three motivations for search incident to arrest I've read about; two more are evidence collection (as above), and mitigating the risk that evidence that could later be collected via warrant might be destroyed.
Terry stops, on the other hand, are motivated solely by officer safety.
I said rooted in officer safety, not solely because, ;-).
Even if the search happens AFTER the arrest (assuming it's lawful, without that there is no internal link to a legal search), the court is still going to look at whether the seized item was taken incident to the arrest. That's why trunk's can't be searched unless there is a "particularized" reason, i.e. drugs, contraband, other evidence of the specific crime for which the offender was arrested for.
Under that line of reasoning, it's pretty likely courts would be ok with thumbing through the offender's call history to find other possible offenders for the related crime.
Not saying it's right, but that's how the law is evolving on evidence collection. Truth is, we need much deeper analysis on the technology at hand, but our courts are OLDDDDDDDD. Not saying octogenarians can't make effective re: technology, but it certainly hasn't bore out that way yet.
You note that a "drug dealer" faces a warrantless search of his electronic devices to determine others involved in the "drug trade" but how is the determination that a suspect is a "drug dealer" made?
Is this another discretionary power afforded to LEO?
Drugs laws, and the Court's interpretation of handling drug crimes gives officers a lot of latitude. I forget the name of the Court case that allows officers to intuit that ANY drug-related offender can be presumed to have a weapon, but the data was actually fairly compelling (without knowing how the data was derived, the outcome was pretty clear—statistical significance that people with drugs are likely to have weapons.
There's also a lot of law about "the person was a SUSPECTED drug offender" because they drove erratically, or were in the wrong neighborhood, or threw something out of the car..... basically anything, and those people can be treated much like folks found to have drugs on them in the first place.
But, if there is no reason to truly arrest someone, the search / seizure shouldn't take place. You usually don't get arrested for minor ordinances... (tickets, lane violations, etc.)
My example was more or less just a common example.
To my mind, if someone was arrested for selling pirated software on jump-drives, the officer would likely be able to check out the call log to look for other conspirators.
"Reuters is the absolute worst at tearing comments out of context for sensationalizing headlines. The paraphrase:
Q: Will the UK's detention of your partner deter your future reporting?
A: Absolutely not. If anything, it will do the opposite. It will embolden me: I have many more documents to report on, including ones about the UK, where I'll now focus more. I will be more aggressive, not less, in reporting.
Q: What effect do you think they'll be of the UK's detention of your partner?
A: When they do things like this, they show the world their real character. It'll backfire. I think they'll come to regret it.
REUTERS: HE VOWS TO PUBLISH DOCUMENTS ABOUT UK AFTER DETENTION, SAYS THEY WILL BE SORRY!!!"
The problem is going to be that the UK tabloids will pick up the Reuters feed and then make it sound like some barmy American is threatening Our Brave Lads. Guardian readers + other 'broadsheet' readers are not the voters who elect governments over here...
I've been trying to grok the data coming out of the NSA yesterday and could use everyone's thoughts. I am by no means sold on my approach, but I've definitely put thought into it.
Daily internet traffic (from the NSA white paper) is 1,826 Petabytes. 1.6% (* .016) is 29 Petabytes that the NSA "touches."
If the average email or chat is 75kb, then the NSA just admitted it touches 389 BILLION messages DAILY.
Also, the NSA says it only "reviews" .025% (* .00025) of the 1.6% it "touches." Small right? Well that means that the NSA "reviews...."
97 MILLION messages DAILY.
Assuming they probably don't check solicitations, I'm assuming they "touch" all emails, chats, etc. Right? And they "review" a non-trivial amount of them by quantity.
Math check? Please someone tell me I'm wrong.
Edited — I was off a decimal point, still a lot of messages daily.
Which doesn't account for ignoring email spam (72% of email traffic in 2012, according to Kaspersky [0]), John in accounting having 3 images included in every footer, attachments being copied in every reply, and the fact a big player like Google keeps its gmail-to-gmail traffic under a secure connection -- not plug-n-play monitering.
And if we hold the USG to their promise towards the Constitution, "world" traffic should largely comprise itself of "non-US" traffic. We can safely say then assume that non-US users are most definitely monitored. All of them. Everything.
Now, the only thing missing is the NSA's private dictionary that defines their interpretations of, "the world," "internet traffic," "monitor," "review," and so on. They have already established that they use these terms in highly specific and non-standard ways, so taking their word for anything automatically accepts their framing and leaves the word-taker out in the cold by definition. We aren't in the club, they don't want to tell us, so their numbers mean nothing.
Of course 1.6% could be about everything in terms of information that is out there, excluding raw non-meta data like bit torrent, mpeg, etc. One way of 'hiding' data for the NSA would be to embed it in these raw data streams with incorrect metadata.. would definitely harder to find that.
This is a game of semantics. They only "monitor" communications that they are "lawfully authorized" to monitor. Every government official has been playing this game for 2 months now.
The real questions are:
1. HOW MUCH DOMESTIC INTERNET TRAFFIC IS COLLECTED?
2. HOW IS THAT INFORMATION ORGANIZED?
3. HOW LONG DOES THE GOVERNMENT KEEP THE COLLECTED INFORMATION?
The NSA are semantic sociopaths. You can never expect them to answer a question honestly because they'll redefine each term to some unexpected yet valid meaning.
Bury it on a Friday afternoon. I do a lot of media / pr work, this is intentional.
It gives the administration the ability to have it in the headlines that "Obama is curbing NSA fears," without having enough people around to truly scrutinize his message.
Not trying to be a cynic, but they put out the declassified powerpoint slides a few weeks ago on a Friday, too. Not much scrutiny. Greenwald has been the one mostly pushing the story forward.
It's likely the only reason Obama's doing this at all is because his internal polling indicates that people are hitting the threshold of caring and he's trying to prevent the media from going too much further. Look at what the New Yorks Times editorial board said today, Obama wants to avoid more of those. He can weather Greenwald, but he needs the rest to fall in line.
He'll probably spin this as, "Bush authorized this stuff and I'm going to clean it up."
That's garbage, most of the practices were expanded under his watch.
I voted for him too. Disappointed doesn't cover it. I know his speeches were rehearsed and all politicians just want that golden seat at the top, but i honestly thought he would follow through with a few more promises. I was actually shocked that he chose to openly back the NSA. I unvoted for him in my head that day.
Why were you shocked? He was opposed to the Iraq war, but it became clear very early on in his presidency and even during his original candidacy that his opposition was to that war specifically, and not based on some broader liberal foreign policy views. Tellingly, his response to "what would you have done?" was always "doubled-down on Afghanistan and hunted down Osama bin Laden." I distinctly remember him talking about this before he was elected, because I remember initially disliking him until I heard his strong foreign policy stance. Given that expectation, I can't say anything about his presidency (e.g. drone strikes) has surprised me (other than the general ineptitude of his DOJ--I expected a lawyer to have a better handle on that).
"MLB filed a lawsuit in March against Biogenesis of America, Bosch and others, complaining they interfered with the contracts between MLB and the union. The suit was unusual and may never reach trial, but it did give MLB the ability to file civil subpoenas...
"It's like traditional law enforcement methods," Tygart said. "Even without the powers of law enforcement -- wiretaps, search warrants -- you can still have success in obtaining these documents.""
Tweets aren't under oath or anything, but it opens up Carmack to lots of questions and possibly affects his credibility.
Often times cases come down to "he said / she said" types of claims and how a jury views them.
If ZeniMax mentions the tweets in court, it will likely be to try and make Carmack look like he acted out of hand, and that he rushed to make claims that arne't true (i.e. the IP / code distinction the poster makes).
Here's the thing about software suits. Most judges / juries are in a TERRIBLE position when it comes to evaluating the nuance involved in a suit like this. Think about the average person and how much they understand about what you do.
Lawyers will try to boil it down to themes and narratives that portray you as "bad." "Winning" in terms of how you evaluate claims or the press or your followers evaluate claims does not matter. It's all about how the lawyers convince a judge or jury you are wrong.