An Ongoing Lack Of Technical Prowess Is Resulting In Bad Laws, Bad Prosecutions, And Bad Judicial Decisions

Legal Issues

from the ignorance-of-what-the-law-affects-is-the-perfect-excuse dept

Everyone in government is talking cyber-this and cyber-that, even though a majority of those talking don’t have the technical background to back up their assertions. This leads to dangerous lawmaking. The CFAA, easily one of the most abused computer-related laws, came into being thanks to some skittish legislators who’d seen one too many 80’s hacker films. (“WarGames,” to be specific.)

Faulty analogies have led to other erroneous legislative conclusions — like the comparison of email to snail mail — which has led to the government treating any unopened email as “abandoned” and accessible without a warrant.

But the problem goes further than the legislative branch. The executive branch hasn’t been much better in its grasp of technical issues, and the current slate of presidential candidates guarantees this won’t change for at least another four years.

The judicial branch has its own issues. On both sides of the bench, there’s very little technical knowledge. As more and more prosecutions become reliant on secretive, little-understood technical tools like cell tower spoofers, government-deployed malware, and electronic device searches, unaddressed problems will only multiply as tech deployment ramps up and infusions of fresh blood into the judicial system fail to keep pace.

Garrett M. Graff of Politico — in a piece written for the Washington Post — discusses how the government prosecutors’ lack of tech expertise is resulting in bogus investigations and Constitutional violations.

Last year, the FBI nearly destroyed the life of an innocent physicist. In May 2015, agents arrested Xi Xiaoxing, the chairman of Temple University’s physics department, and charged that he was sneaking Chinese scientists details about a piece of restricted research equipment known as a “pocket heater.” An illustrious career seemed suddenly to implode. A few months later, though, the Justice Department dropped all the charges and made an embarrassing admission: It hadn’t actually understood Xi’s work. After defense experts examined his supposed “leaks,” they pointed out that what he’d shared with Chinese colleagues wasn’t a restricted engineering design but in fact a schematic for an altogether different type of device.

It’s not just prosecutors. Graff notes that there’s no “pipeline” of lawyers who can read and understand code heading to either side of prosecutions, which means defendants will be at the mercy of judges’ interpretations of evidence and arguments. That’s bad news as well.

As documents have surfaced thanks to the Snowden leaks and the government being more forthcoming with FISA court decisions, it’s become apparent that judges issuing orders haven’t been fully apprised of the technical details of the NSA’s domestic surveillance programs.

The fallout from Edward Snowden’s revelations exposed numerous instances in which agency lawyers miscommunicated to courts about what the government was doing. There are two possible explanations: Either they willfully exploited judges’ lack of technical knowledge, or the lawyers themselves couldn’t fathom the programs they were trying to explain.

Irritated FISC judges have come down hard on the agency periodically, pointing out serious misrepresentations by the NSA’s lawyers. Unfortunately, these discoveries have always come well after the fact. In the periods between judicial benchslaps, the agency has acted with autonomy. Forgiveness is better than permission, especially when the person approving surveillance requests either doesn’t have all the information they need or is unable to interpret the information they’ve been provided.

The lack of expertise — and the lack of new talent flowing in — means this sort of thing will continue to happen far too often. Judges will be duped. Defendants will end up jailed because of the ignorance surrounding them. Bad analogies will shore up inadequate explanations. And, if you’re the sort who believes “accused” means “guilty,” the shortage of knowledgeable prosecutors will result in jaw-dropping “technicalities” returning suspected criminals to the streets.

In one recent prosecution of a security researcher accused of illegal hacking, an assistant U.S. attorney summarized the case to the court by saying, “He had to download the entire iOS system on his computer, he had to decrypt it, he had to do all of these things I don’t even understand.” The government ultimately lost the case.

So, what can be done to fix it? Not much. Only a few law schools offer classes in cybersecurity, coding, or other tech fields. Those that do have long waiting lists. The upside is that a technically-proficient law school grad should find plenty of opportunities awaiting them. The downside is that there’s not nearly as much money in the public sector as there is in the private. This may mean criminal defense will see a boost in knowledge, but that will only help those who can afford to hire top-tier lawyers.

The government, meanwhile, will likely continue to stumble over its own ignorance. Fortunately for government prosecutors, most judges are willing to cut government prosecutors a lot of slack, something only exacerbated by lawmakers pushing legislation targeting things they don’t even understand.

Filed Under: expertise, law, policy, politics, technology