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A Word About Our Blog Entries

The Julie Group shares a professional interest in the area of digital and emerging technology and law. As professionals there is a rich and deep appreciation for the differences of opinion that can appear in this space. You must never assume that opinion, where it is introduced is universally shared and endorsed by all our volunteers. Nor are they necessarily the very best snapshot of a given issue.

Readers are expected to think about the issues, question everything worth discussing, and add value to the conversation by correcting what's here or broadening the understanding of the subject. This is part of the educational process between us all. Our hope is that this exercise results in better law, law enforcement, and citizen participation in forging sophisticated social understandings of the technological forces changing our lives.

Monday, June 16, 2008

The Effects of Justice Delayed

An article in the Boston Herald by Laurel J. Sweet entitled Probe shows kiddie porn rap was bogus is a sobering reminder of how certain accusations are as bad and worse than being found guilty of more pedestrian crimes.

Michael Fiola's ordeal within the justice system well documents what Julie Amero's and other's lives are like as they await her day of vindication.

The disastrous effect of rogue virues and malware on the lives of unsuspecting, innocent citizens across this country is incalculable. As you read this article, imagine a family member of yours getting caught up in a judicial system quick to punish, unwilling to seek out truth, and slow to absolve.

Nationally recognized computer forensic analyst Tami Loehrs told the Herald Michael Fiola’s ordeal was “one of the most horrific cases I’ve seen.”

“As soon as you mention child pornography, everybody’s senses go out the window,” she said.

Loehrs, who spent a month dissecting the computer for the defense, explained in a 30-page report that the laptop was running corrupted virus-protection software, and Fiola was hit by spammers and crackers bombarding its memory with images of incest and pre-teen porn not visible to the naked eye.

Two forensic examinations conducted by the state Attorney General’s Office for the prosecution concurred with that conclusion, Wark said.

Still, Fiola, 53, whose wife, Robin, described as “computer-illiterate,” wants his day in court. He intends to sue the DIA for “destroying our lives.”

“Our lives have been hell,” said Fiola, a former state park ranger now living in Rhode Island. “I hope to recover my reputation, but our friends all ran.”

- snip-

“There is no evidence to support the claim that Michael Fiola was responsible for any of the pornographic activity,” she wrote.

All the porn, she said, was located in the laptop’s cache, a computer feature that stores copies of Web pages. Consistently, Loehrs’ findings noted, there was “no apparent origin or user interaction preceding the pornographic activity,” some of which was downloaded “fast and furious.”
Citizens all over the country work on computers whose connections continue to be insecure due to expired anti-virus subscriptions or absence or lack of adequate anti-spyware and anti-malware software.

Yet in far too many cases, employers, police, and crazed fellow citizens are quick to assume that the people accused of possessing unlawful images must be guilty of something far more nefarious no matter what the evidence, their peer relationship, or common sense might indicate to the contrary.

The combination of manufactured and magnified fear, a relentless and mindless moral extremism, and poorly drafted laws that eliminate common sense are creating an ethical nightmare that threatens the very rule of law and guarantee to a fair trial for those falsely accused.

The judicial branch of government needs to reassess the concept of possession and intent in the virtual realms where the transfer and location of data and content may be wholly co-incidental to anything a real person on a given computer is actually responsible for.

Julie Amero and Michael Fiola are just two very visible examples of the need for more sophisticated law and guidance in cyberspace criminal proceedings.

Sunday, June 15, 2008

The Star Simpson Resolution

A number of members of the Julie Group were paying attention to protracted case of Star Simpson. Of interest was how the judicial system in Massachusetts would handle the case of a college student sporting a decorative wearable computing device that was mistaken as a potential terrorist threat by local airport authorities.

Mit's The Tech newspaper in an article called, Star Simpson Receives Pretrial Probation
by Joyce Kwan

An East Boston District Court judge sentenced Simpson to one year of supervised pretrial probation on a charge of disorderly conduct and ordered her to perform 50 hours of community service, half of which much be completed with veterans, and to publicly announce that she had made a mistake.

“I want to apologize for the results of my conduct on September 21, 2007. Although I never intended to act in a disorderly fashion, I now realize that the shirt I created caused alarm and concern at Logan Airport,” Simpson said in a statement released Monday by her attorney, Thomas E. Dwyer, Jr. “I am appreciative to the Massachusetts State Police for their diligence in protecting our citizens and apologize for the expense that was caused that day.”
Simpson was originally charged with “possession of a hoax device,” a charge which would require prosecutors to show she meant to scare people with her circuit board, which contained light-emitting diodes in the shape of a star. But they “determined that they could not move forward on that count and dismissed it to the disorderly [conduct] charge,” according to a press release supplied by Wark.
Apparently this resolution is satisfactory by both sides but from the perspective of an interested observer, the public declaration that Simpson had "made a mistake" looks to be prosecutorial coercion.

Unfortunate as the incident was, Simpson had not made any mistake to speak of. While her university garb certainly frightened airport security, it is a difficult argument to make that Simpson or anyone else might know, a priori, that an LED device would be treated with near deadly force except the airport information administrator who translated teenage belligerence into a potential terrorist threat.

The feel-good one-upsmanship of the prosecution in this case is childish and demeaning to those who care about establishing civil operating procedures in sensitive public places. Simpson's apology for being young and impulsive will not prevent the next teen from being young and impulsive.

A smarter judicial system would have Simpson's community service be served at an airport educating information officers on what to look for in dangerous devices and what to ignore. And the airport itself would do well to re-examine the responses of information personnel to situations such as Simpson's.

One must also question the court's insistence that Simpson's community service "half of which much be completed with veterans". Why veterans? Why not active armed agents who can meet and talk to the person they were about to kill because an airport greeter got their nose out of joint? This would be a far more productive use of Simpson's time.

It is hard to understand why the court is establishing separate class distinctions in the defining community service. It seems to me that the community and not the courts should establish the guidelines to Simpson's service.

The final troubling footnote to this episode is that
During the time between her arrest and the June 2 hearing, Simpson was banned from Massport property, including Logan Airport, and had to fly out of other New England airports. “It also meant I couldn’t attend the international symposium on wearable computing, as it was held at the Hyatt at Logan Airport,” Simpson said in an e-mail to The Tech.

It is unclear who issued the ban. Wark said the district attorney’s office had not requested this restriction. Dwyer could not be reached by press time.
This implies that the rule of law is suspended for those who are awaiting trial even though there sufficient evidence that the incident is an unfortunate mistake by all involved.

It is of special interest to know how the rights of American citizens awaiting trial can be suspended so mysteriously.

- krasicki