From: Michael S. Lorrey (retroman@turbont.net)
Date: Thu May 04 2000 - 21:27:57 MDT
Billy Brown wrote:
>
> Michael S. Lorrey wrote:
> > Observation in person is one thing, automated pattern recognition by a
> > computer and issuance of tickets by computer is another ball of wax
> > entirely. Unless they man every camera with a human being, this is in
> > fact unconstitutional, because it violates your right to confront your
> > accuser. You can't confront a computer, it is not a person.
> and
> > Any means of gathering evidence not under immediate human supervision
> > and control is mere hearsay evidence, no matter how accurate or well
> > time stamped it is.
>
> Sorry, Mike, but I think you're really reaching here. By that logic nothing
> done on the Internet could ever qualify as a crime, unless someone manages
> to literally look over your shoulder while you do it. With immersive VR and
> personal software agents on the horizon, and most of the financial world
> becoming increasingly automated, the idea that only direct observations by
> human beings can be used as evidence is completely impractical. There are
> just too many ways to commit theft, fraud and vandalism in ways that are
> physically impossible to observe in that fashion.
Which speaks more to how the internet violates our privacy and the
security of our property rather than to a problem with the legal
principle. The internet is our tool, not the reverse, we should not have
our rights be enslaved to its limitations. We should not accept a police
state just so we can feel better about ordering books online with our
credit cards.
>
> The obvious solution, which has already been adopted by the courts, is to
> allow evidence from log files, recording devices and forensic tests while
> keeping in mind that such evidence is not necessarily 100% reliable. In
> cases where a recording device is the only evidence there is a tendency to
> go overboard with reliability measures, requiring that manufacturers achieve
> incredibly high reliability levels before their evidence can be considered
> sufficient for a conviction. In cases where the recording device merely
> corroborates human testimony, such as convenience store video cameras, the
> standard of reliability is of course much lower. This all seems pretty
> reasonable to me.
If the courts insist upon extremely high reliability levels for recorded
evidence that is not corroborated by human eyewitness testimony, then
they obviously share my concerns.
Log files and other recorded data, especially on the internet, is highly
abstracted from reality, easily misinterpreted and manipulated. For
example, with a few hours work, I could jimmy up a log file that shows
that you used my web server to access kiddy porn sites overseas on
numerous occasions, enough so that a particularly zealous cop could get
a search warrant and literally destroy your house, office, and computer
system looking for evidence.
If you or anyone in your office or household is like the average male
web browser, you've got a good number of porn images saved to your
system or sitting in your browser cache directory. While you may have
never actively searched out kiddy porn, it is highly likely that, if any
user of your computer is typical of the average male web browser, you
have files which could be argued fit the statutory definition of kiddy
porn, that you never intentionally saved, or that you understood to be
nothing but flat chested 18-20 year old women. Despite actual innocence,
you could be strung up in public as a sexual predator.
Even if you don't browse such things, I could also anonymously email you
a zip file with such images in it. You could deleted the message, but
the attachment would still sit in your cache, and even if you deleted
your cache, the data can still be recovered by law enforcement level
data recovery techniques.
A system that relies on unwitnessed, abstract, impersonal data is at
high risk of corruption, perversion, and manipulation. It is not data
that should be trusted in a court of law.
>
> As for the right to confront your accuser, well, we are just going to have
> to face up to the fact that it is now possible for a criminal to be caught
> red-handed by a completely automated system. This is going to become
> increasingly common whether the government puts up cameras or not - for
> example, if Amex's (existing) activity-checking AI spots you using a stolen
> credit card, you have the same problem.
>
> IMO the logical application of our current principles would be to consider
> the organization that runs the surveillance device to be your accuser, and
> consider the presence of their chosen representative in the courtroom to be
> sufficient to satisfy the constitutional requirement. I also think it is
> important that the defense be able to subpoena anyone who has anything to do
> with running the system, so that you can effectively raise issues regarding
> its reliability.
The organization can only appoint a person to act as an expert witness
to analyse the material evidence, which can easily be cross examined as
well as rebutted by equally competent expert witnesses for the defense,
including other employees or former employees of the surveilling
organization.
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