Deniability

[Robert J. Hansen]

On 3/22/2011 11:50 PM, Jerome Baum wrote:
> A guy with encryption software hopefully doesn't have a higher
> chance of molesting a child.

Except that *you don't know what that was entered to prove*.  It's quite
possible it was not entered to prove he molested a child.  If I was a
prosecutor, I'd want to argue that he was technically proficient, and
enter the existence of PGP to support that claim.

If the jury then decides, "well, he had PGP on his hard drive, therefore
he's probably guilty," then that's the jury being idiots.  That doesn't
mean the U.S. system is unjust: every nation with a jury system has to
deal with juries being idiots.

The fact he used PGP was entered into a trial about the abuse of a
child: but that doesn't mean that fact was entered into evidence to
prove he abused the child -- it could have (and quite likely was)
entered for something else.  Unless you're looking at the court record,
you don't know.

> How  does the  fact that  the judge believed his  decision was
> right support your  argument that  the court (i.e.  judge)  made the 
> correct decision?

Because it means four judges, who were quite likely appointed by
different governors and have different political beliefs, came to the
same opinion about the law.  When four judges who don't like each other
and squabble constantly unanimously say, "the law says this," well, I
tend to give that a lot of credit.

> As  for the appeals  court, I have  heard (obviously  no  first-hand 
> experience)  that  they are  very conservative when  it comes to 
> turning  over a court's  decision

I can't talk about the Minnesota state courts: I haven't studied their
system.  At the federal level, appellate judges give the trial judge's
decisions a great deal of deference when it comes to findings of fact --
the rule of thumb is a factual finding must be "as offensive to the
senses as a three-day-old mackerel" for a factual finding to be
overturned -- but zero deference for findings of law.  Literally, zero
deference.

> So, how does technical sophistication have to do with whether or not 
> the guy molested the  child?

You're asking me to demonstrate psychic powers by telling you about a
transcript I haven't read.

However, as a guess, Minnesota may very well have an enhanced penalty
for the use of counterforensic software and/or encryption in the
commission of a crime.  That's an example of something that wouldn't
have any effect on whether the accused committed the abuse, but would be
relevant to how harshly he was sentenced -- and it could be entered into
evidence on those grounds.

That's just a guess.  There are many, many, *many* other ways it
could've happened.