Date: Sun, 5 Oct 2008 23:28:47 -0400
From: "Eliah Kagan" <degeneracypressure@...il.com>
To: full-disclosure@...ts.grok.org.uk
Subject: Re: [inbox] Re: Supporters urge halt to, hacker's,
	extradition to US

Michael Krymson wrote:
> I just wanted to let you know I know a tiny bit how the American system
> works (I live here). "Beyond reasonable doubt" is typically a murder trial
> thing.

That is incorrect. You, again, appear to misunderstand what "beyond
reasonable doubt" means.

Beyond reasonable doubt is the strongest burden of proof in a court,
and in the United States it applies to virtually all crimes.
http://en.wikipedia.org/wiki/Reasonable_doubt

> But reasonable doubt in general is typical when interpreting and
> applying laws.

It seems your misunderstanding is elucidated. "Reasonable doubt" is
not a synonym of "critical thinking" or "skepticism". It has a
specific legal meaning, and that is the meaning that I have been
using.

> It's just when one uses that "beyond reasonable doubt" that
> it evokes murdermurdermurder thoughts.

Are you referring to the way that the phrase is commonly used in works
of dramatic fiction? If so, I would preemptively argue that the
language of our legal system need not be molded to fit the conceptions
people happen to have from popular culture.

But I will go further. Compromise the standard of evidence and
argument, and that will contribute to a systemic degradation
increasing the number of wrongly convicted murder suspects (and thus
also wrongly uncharged murderers). So while a case of computer fraud
may appear to be unrelated to murder, in actuality precedents set in a
computer fraud case will inform future rulings on all types of
criminal cases, including murder cases.

> What a reasonable person believs is a
> lot different than saying there is no doubt about something.

Yeah, it sure is. For instance, I agree that a reasonable person
(familiar with both computer security and doors) would understand your
analogy about locked doors. But that doesn't eliminate all doubts a
reasonable person would have about it. Therefore, if the analogy were
presented in court as arguments, your argument would have to be judged
as insufficient.

> In one case
> you're trying to prove guilt as much as possible, in the other you're just
> trying to apply common sense.

Are you saying that it should be OK to convict someone of any crime
besides murder so long as it makes sense that they could have done it,
given the available evidence?

> I'd stick by my saying entertain a blank password is like testing a door and
> finding it unlocked, or that is accepts my key that I just happened to have
> in my pocket. Just because it works does not imply I'm welcome. I would say
> that a reasonable person would understand that.

What I have presented in my earlier post is a semitechnical argument
that there are other reasonable analogies that are inconsistent with
yours. Therefore, any conclusion arrived at by assuming the singular
validity of your analogy is suspect and a reasonable person would
doubt it.

Anyway, the truth is that even if we do arrive at a generally
sufficient analogy between access to electronic systems and  access to
physical spaces, that will still not be enough, because a computer
crime isn't usually an unauthorized access to physical space. Computer
fraud is *not* breaking and entering, destroying electronic systems
without damaging physical hardware is *not* vandalism, copyright
violation is not (and has very little to do with) larceny, and so
forth. (Similarly we don't put CEO's of companies that violate
emissions regulations on the sex offenders registries for "raping the
planet".) Crimes like computer fraud are real, serious crimes that
really hurt people, but that doesn't automatically validate a literal
interpretation of whatever analogies happen to be popular! There are
specific laws covering computer crimes. The laws governing who can
enter what buildings under what conditions may or may not correspond
to what these laws actually say, under any analogy.

-Eliah

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