Tag: law

Yesterday I sat as juror number 2 in Department 13 of the Alameda Superior Court of California in Oakland for most of the day.  As the voir dire process was conducted the defense attorney repeated in several formulations that as a jury we were required to start from a presumption of innocence.  A statement I'm sure almost everyone is familiar with.  However, he presented a formulation I had not considered before which made me realize I had been misapplying the concept.

I had always interpreted "presumed to be innocent" as a call to neutrality. That as a juror you are to withhold judgment until having heard the facts of the case and you must require the prosecutor to convince you of the defendant's guilt. But the presumption of innocence is asking you to go further than neutrality.  You are expected to enter the room, not withholding judgment until you've heard the case presented, but to, instead, start with a belief that the defendant has done nothing wrong.

This is almost anathema to what we try to uphold as a societal value: that we shouldn't take a side until we've heard from both parties.  That we should be neutral.  We present the statue of Justitia standing blindfolded with balanced scales as our benchmark.  To have a stranger presented to us and say, "Gee, I don't know this man or what he's capable of.  Maybe he did it; maybe he didn't."  But this is not presumption of innocence.  Justitia's scales should be tilted to one side if we are to presume innocence and require the weight of the evidence to tip it over.

As voir dire continued I thought about this.  How could I, having believed of myself that I could start from a position of neutrality, do as the law asks and, instead, start from a position of presumed innocence towards the defendant?  And what does it really mean to me to presume someone innocent rather than withholding judgment?

I came to the conclusion that to truly presume the accused innocent I must attempt to envision them essentially as I would a spouse; a person I know well enough such that I would initially reject any accusation against them as unfounded; demanding the accuser show sufficient proof as to force me from my previous beliefs.

To say the burden of proof lies with the prosecution does not fully convey the meaning of "presumed innocence."  The prosecution must not simply convince a neutral juror of their case, they must force the juror to abandon a held belief that the accused is innocent.  We are not asked to withhold judgment.  We are asked to pre-judge the defendant to be innocent.  We are to stack the deck in favor of the charged.  The prosecution must drag us from "I believe he did not do it" through "I think he may have done it" to a position where we say, "I was wrong and am now convinced that he did it."

That's a tough thing to ask of twelve arbitrary people.  Neutrality may be the best we can realistically hope for in an arbitrarily selected juror.  But I, at least, have gained a new appreciation and understanding of the phrase "innocent until proven guilty."

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After we returned from lunch, the defense attorney asked the Court that I be excused from the jury.  Which is why I am now writing this; as I'm no longer required to not talk about the trial.  More discussion about my experience with court will appear in a subsequent post, I wanted to keep this one on just the one topic.

[Before we start, I want to acknowledge that people that know me know that I have no particular love for Apple in general and that my defense of their position here could hardly be argued as simple fanboyism.]

Apple is in the news recently regarding their refusal to go to unusual lengths to provide access to the contents of an iPhone.  One of the most interesting bits is that Apple is not saying that what they're being asked to do is technically impossible.  They are explicitly stating that they won't do it--not that they can't do it.

This is an interesting distinction partly because it concedes the point that many have made for years that if Apple wanted to access any user's device they could, but it's a matter of necessary effort.  Apple gets credit for having intentionally made it harder for them to access a user's device, but so long as they control the hardware, the software, the update service, and the "cloud" storage it seems unlikely they will choose to reach a point where they have no technical ability to access a user's device [though there are now rumors circulating that they will, we'll see].  Creating a device that they can't access essentially requires that they give up the ability to automatically push software updates without resetting the phone to factory conditions [that is, a user would have to first unlock the device and provide some interaction for the update to happen].

But that's more of a side note to the main event here.  From my perspective there is really one main point and a corollary that need to be discussed:

1. How much effort should a company be required to expend to comply with law enforcement desires?
1.a. Should companies be required to design products to be accessible by law enforcement (i.e., mandatory backdoors)?

Note: Whatever answer you provide will be used by our and other governments to demand the same cooperation for future cases.
And why would anyone use or buy backdoored products when actually secure tools are readily available (a backdoor is, by definition, a security vulnerability)?

Many people see Apple as being obstructionist in their stand.  After all we're talking about a phone used by someone who thought shooting a bunch of people was a good idea.  And they know that.  I imagine that Tim Cook is thinking a lot about this quote (generally attributed to H.L. Mencken):

The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.

Apple is very much relying on a slippery-slope argument.  For a slippery-slope argument to be valid you need to show a basis for the idea that if you provide A then soon you'll be asked for B and then C and then D and then E.  Often times slippery-slope arguments are made fallaciously--providing support is necessary to turn it into a valid argument.

I think Apple can make a convincing slippery-slope argument here because of the long history of law enforcement, and the executive branch of the government in general, demanding more and more information of lesser and lesser importance almost for no other reason than that the information is available.  To the point that in recent history illegal wiretapping scooped up data on every American phone call for years, just because they could.

Apple can also show that other countries have and will demand that Apple provide access to devices for reasons that Americans would find unacceptable (religion, sexual orientation, political views, etc.).

Apple's argument is that the only way to guarantee civil liberties is not to make violating them illegal, but to make violating them impossible.  It's a very strong stand.

You, as an American citizen, have to think about this and decide where the line is.  Too many people make knee-jerk decisions without spending any time to consider the continuum of possibilities and outcomes.

The Economist hosted a debate between security expert Bruce Schneier and former TSA-administrator Kip Hawley on the topic of whether the changes to airport security since 9/11 have done more harm than good.

It was well done and consisted of opening statements, rebuttals, and closing statements from each participant.

Hawley's opening statement begins with:

More than 6 billion consecutive safe arrivals of airline passengers since the attacks on America on September 11th 2001 mean that whatever the annoying and seemingly obtuse airport-security measures may have been, they have been ultimately successful.

He continues on and on using the reasoning that because no airplanes have been successfully attacked it means the TSA has been effective and therefore worth its inconvenience, cost, and violation of civil rights.

This is a clear-cut case of post hoc ergo propter hoc reasoning.  He presents no further evidence other than first the TSA was created and second no successful attacks have occurred as proof that the TSA is successful.

Post hoc ergo propter hoc can be phrased as follows: First A occurred, then B occurred, therefore A caused B.  This, however, is frequently not true and is not valid reasoning without further evidence better tying together the events of A and B.

Using post hoc ergo propter hoc reasoning as the sole basis of maintaining the current absurdity of the TSA is unacceptable.

But let's rephrase the relationship and re-examine the reasoning.  Let's phrase the relationship like this:

If the TSA is effective then there will be no successful attacks on U.S. airplanes

Now let's include the knowledge that no successful attacks have occurred.  What can we say about the TSA's efficacy?

Interestingly enough, nothing.  If the if-then relationship is true, knowing the "then" clause is true tells us nothing about the "if" clause.

Logically, if-then statements can be rewritten.  "If A then B" is equivalent to "B or not A."  Using an example:  "If it is raining then the ground is wet" is equivalent to "The ground is wet or it is not raining."

The re-writing makes it easy to see that when we know the ground is wet we don't actually learn anything about whether it is raining or not.  It might be raining, and the wet ground provides evidence for that hypothesis, but the ground may be wet because a lawn sprinkler is running, or someone spilled a cup of water.  We don't know why the ground is wet, only that it is.

So let's rewrite our proposed relationship between the TSA and airplane safety:

There will be no successful attacks on U.S. airplanes or the TSA is not effective.

Knowing that there have been no successful attacks tells us nothing about whether the TSA is effective or not.

This is an incredibly important piece of formal logic to understand because it is almost always misused in common practice.

So the real relationship that Hawley is providing evidence to argue is this:

If there are no successful attacks on U.S. airplanes then the TSA is effective.

But this statement doesn't mean what Hawley wants it to mean.  Given that there are no successful attacks on U.S. airplanes does mean that the TSA achieved its operational goal, but it does not tell us anything about whether the TSA's actions contributed to that result or not because the causation is backwards.

It is equivalent to saying: "If I got an A on the test then I learned the material."  Which is not necessarily true (you may have cheated or made lucky guesses).  The correct causation should be, "If I learned the material then I will have gotten an A on the test."

In order for the test->learned form to tell us something meaningful about the consequent (the "then" part) we need additional criteria: "If I got an A on the test, and I did not cheat, and I did not make lucky guesses then I learned the material."

[Updated 4/14 with more obvious example]
Another example would be to say I have a magic wand that causes things to fall to the ground when you let go of them.  I'm holding the wand, you let go of something, it falls to the ground.  So I posit, "If the object falls to the ground, then my wand works."  Knowing that the object falls to the ground doesn't really tell you anything about whether my magic wand had anything to do with it.  The stated purpose of the wand was achieved, but it had nothing to do with the wand.

The point being that in this reverse-causation form we have to account for all possible causes in the antecedent (the "if" part) in order to arrive at the consequent--an impossible task given the number of things that are unknowable regarding airplane security.

There may be no successful attacks on U.S. airplanes for many reasons and we would need to account for all of them before declaring the TSA effective.  A silly one is simply that there might be no U.S. airplanes (in which case there could be no attacks against them, successful or otherwise, regardless of the TSA's efficacy).

A serious reason could be that there is not anyone trying to attack.  And if we count the number of terrorists that the TSA has actually caught (zero), this is true.  If your argument is then that those who would attack were deterred from even trying, then the burden is on you to provide evidence that this has occurred.

My position remains that if terrorists were intent on blowing something up and decided that an airplane was too difficult they would not just give up and go home.  If the TSA is deterring terrorists from attacking airplanes then those same terrorists would be blowing up grocery stores, malls, schools, dams, airport security lines (like the terrorist attack in Russia in 2011), or any of thousands of other completely unprotected targets.

Bruce Schneier argued for the responsible action: Disassemble the TSA, return airport security to pre-9/11 levels, and divert the TSA's budget to intelligence gathering, law enforcement, and emergency response.

Following this plan would provide greater protection for all targets with no meaningful reduction to the security of airplanes.  And, as a bonus, you would waste less time in airport security lines, have fewer Constitutional rights violated when traveling, and your ticket would cost less.

On September 30, 2011, on orders from President Obama, U.S. citizen Anwar al-Awlaki was assassinated in Yemen.  At the time, many people expressed concern over the assassination of a U.S. citizen--the assassination of someone born in New Mexico and educated in Colorado (B.S.), California (M.A.), and Washington D.C (incomplete Ph.D.).  And many people defended the action, justifying it on the basis that he was aiding and abetting terrorists.

al-Awlaki had never been tried or convicted of any crime in any U.S. court.

Up until this point, in the United States we followed the law set forth in the Constitution.  The Fifth Amendment states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The key phrase I'd like to emphasize is, "No person shall be...deprived of life...without due process of law."

"Due process of law" is a critical concept in the functioning of any society that claims to hold itself to the rule of law.  According to Wikipedia's article on the "Due Process Clause":

The Supreme Court of the United States interprets the Clauses as providing four protections: procedural due process (in civil and criminal proceedings), substantive due process, a prohibition against vague laws, and as the vehicle for the incorporation of the Bill of Rights.

And quoting from the article on "Substantive Due Process":

[Procedural due process] aims to protect individuals from the coercive power of government by ensuring that adjudication processes under valid laws are fair and impartial (e.g., the right to sufficient notice, the right to an impartial arbiter, the right to give testimony and admit relevant evidence at hearings, etc.).

[Substantive due process] aims to protect individuals against majoritarian policy enactments which exceed the limits of governmental authority—that is, courts find the majority's enactment is not law, and cannot be enforced as such, regardless of how fair the process of enforcement actually is.

On March 5, 2012 Attorney General Eric Holder gave a speech at Northwestern University Law School in Chicago.  In this speech he defended the administration's actions and discussed how they unilaterally redefined the meaning of "due process of law":

Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. 'Due process' and 'judicial process' are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.

I don't know how anyone can reconcile his statements with the above discussion on the definition of "due process of law."

It appears to be the exact same type of word games that the Bush administration played in order to permanently incarcerate people at Guantanamo Bay without trials.  By simply calling them "enemy combatants" instead of "prisoners of war" or "criminals" they made a linguistic end-run around both the U.S. Constitution and the Geneva Conventions.  The same way that torture was illegally used by calling it "enhanced interrogation."

Using these kinds of language tricks one can get away with anything and the rule of law collapses.

I'm concerned for our future when our rights can simply be redefined away.