cgshaw

(another attorney here)

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 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.

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.

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.

Attorney here.

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.

Sort of, unfortunately.

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.

Attorney here.

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.

Greenwald's response...

"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!!!"

http://www.twitlonger.com/show/n_1rm09tf

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.

Feel free to critique / destroy / inform.

Edited.

Nm, I missed a demical point in a different spot. #fml, you are right. 97M.

Did some quick back of the napkin math.

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.

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?

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'm pissed and I voted for the guy twice. :-X

Short version...

"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.""

Attorney here.

What's perhaps scarier is that the prosecutor wouldn't even know when / if possible exculpatory evidence exist or whether their evidence is fruit of the poisonous tree (fancy way of saying legitimate evidence that is found as a result of illegal search & seizure). I spoke with 3 buddies yesterday that are prosecutors and they told me they hated this concept of "parallel construction," they felt like it took prosecutorial discretion out of their hands and made their job—to uphold our laws—more difficult.

Now, there are bad prosecutors out there. People motivated by politics and self interest, but they are the few. The folks that just want convictions and to better their stats. Those folks will likely never care where they get the ammunition to "put away the bad guys."

Great data, thanks for sharing.

I think one of the "problems" is that innovation is actually picking up speed dramatically. So even if the politicians aren't older, they are more likely to be removed from relevant business and innovation cycles and also more beholden to entrenched businesses.

Average term length has continued to rise as well. (see http://www.fas.org/sgp/crs/misc/R41545.pdf page 6)

In 1949, a Senator on average served just 1 term (6 years), and a Representative served 3 terms (6 years).

Now, in 2013, a Senator serves nearly two terms (12 years), and a Representative serves nearly 5 terms (10 years).

That's why I used the quotes.

I was more or less trying to draw the distinction that in some fields, sports, entertainment, and at least some technology enterprises youth wins out. Recently it was determined that by industry, technology is one of the "youngest" industries with an average ago of 30. That puts tech close to retail and food service.

I think it was Forbes, I can't find the link though.

Put another way, people like Zuckerberg, Chesky, Houston, etc. are having an amazing impact in business, but there isn't anyone close in the political world.

Sadly, even if "veterans" like Dorsey, Page, Brin were to run for federal office, they would be amongst the youngest to serve.

Much of this has to do with the systemic aging of our elected officials.

Look at the federal level, where the average age of a Rep is 59 and Sen is 63. These are folks who not only don't empathize with modern technology, they've got established connections to big industries that are threatened by innovation.

I'm not meaning to come off like a ideologue, it's just economics and incentives. Until younger folks get more involved, it likely won't improve much. (like SOPA/PIPA, but more consistent in advocacy and running for office).

Clinton ran for congress in his 20's, lost, but was elected Governor in his early 30's. Joe Biden was a U.S. Senator at the age of 30. People in their late 20's and early 30's just aren't positioned to run for office in our generation. Debt, schooling, careers, etc prevent many from being able to do it, even if they wanted to.

I completely agree.

Maybe it should be more incumbent on politicians and law enforcement to learn more about technology and incorporate more private citizens as opposed to just big corporations in the dialogue.

It's frustrating, I think everyone realizes that technology is going to become a greater and greater part of every day life in government and yet there hasn't been much of a push for elected officials to give a shit to do anything but fundraise with it.

As an attorney and someone moderately interested in politics, it's becoming more and more clear that technical literacy is going to play a huge role in law and policy.

We desperately need more politicians, bureaucrats and law enforcement who at least have some basic technical knowledge.

Empathy is the only way to prevent stuff like this.

That is a great visualization. Interesting and yet really just confirms the distribution that I would assume.

On the visualization itself, I think the color choices could be optimized a bit. The gold on black is difficult. If you could make the contrast better, it'd be easier to read.

The guitar playing is gimmicky, but these guys obviously have some skill. Nice work.

From the chat -

"Anthony De Rosa 17 June 2013 2:18pm 1) Define in as much detail as you can what "direct access" means.

2) Can analysts listen to content of domestic calls without a warrant?"

Answer (Snowden)

"1) More detail on how direct NSA's accesses are is coming, but in general, the reality is this: if an NSA, FBI, CIA, DIA, etc analyst has access to query raw SIGINT databases, they can enter and get results for anything they want. Phone number, email, user id, cell phone handset id (IMEI), and so on - it's all the same. The restrictions against this are policy based, not technically based, and can change at any time. Additionally, audits are cursory, incomplete, and easily fooled by fake justifications. For at least GCHQ, the number of audited queries is only 5% of those performed."

Apologies, I should have linked the print-friendly version.

I hate autoplays as well.

There's a difference in knowing how the sausage is made. I'm certainly not naive enough to think that governments aren't always spying on each other's diplomats, however the appearance that the UK and US went to pretty crazy lengths to keylog and tricks G20 diplomats into giving up intel out in the public could have some pretty negative implications for diplomatic discourse down the road.

I read it similarly, but not everyone may recall the ins and outs of the Patriot Act's passage—it was nearly a dozen years ago now. Many of the folks on HN were in grade school.

I was trying to draw attention to the line that government keeps giving us about how "they are trying to prevent another 9/11" with the secret laws and secrets courts that enable warrantless wiretaps and constant surveillance.

Perhaps even more important to note "before 9/11."

So if mass surveillance didn't prevent 9/11, is the rationale to expand it to TOTAL surveillance, if necessary?

Giving up British intelligence for the G20 surveillance is also probably crossing the line.

If developed countries can't trust each other not to spy on their diplomats where does that leave us?

I guess they should all assume they are being spied on at all times while on foreign soil, but airing that in public is likely to worsen his chance of avoiding jail time—or worse.

Most of us had heard about Binney before, but the other guys back up many of the same claims.

Binney's take on what they'll do to Snowden.

"Binney: First tortured, then maybe even rendered and tortured and then incarcerated and then tried and incarcerated or even executed."

Check out Kinvey — http://www.kinvey.com/