courts

Police, Evidence and Facebook

One of the things I presented at IR13 was in a 10-minute panel presentation on the regulation of Internet by spaces such as Facebook. I wanted to use this all to brief time to enter into the discussion of a problem of police, policing, procedural rules and technological affordances – easy right?

This is going to be a paper soon but I need to get some of the ideas out so that I remember the order they are in and so that people who know better can tell me how horribly wrong, ignorant and uniformed I am about the rules of evidence in different jurisdictions.

So the central argument is that computers have been used for a long time in police work and we have created safeguards to ensure that these computers and databases are not abused. In order to prevent abuse most countries have rules dictating when the police can search databases for information about someone.

Additionally, many countries have more or less developed rules surrounding undercover work, surveillance work and the problem of what to do with excess information (i.e. information gained through surveillance but not relating to the investigation that warranted the surveillance). As you can tell I need to do more reading here. These will all be in the article but here I want to focus on a weakness in the rules of evidence, which may be presented to the courts. This weakness, I argue, may act as an encouragement to certain police officers to abuse their authority.

Facebook comes along and many government bodies (not limited to the police) are beginning to use it as an investigative tool. The anecdotal evidence I have gathered suggests no limitations within the police to using Facebook to get better photos of suspects, finding suspects by “trawling” Facebook and even going undercover to become friends with suspects.

Now here is an interesting difference between Anglo-American law and Swedish Law (I need to check if this applies to most/all civil code countries): The Anglo-American system is much better at regulating this are in favor of individual rights. Courts routinely decide whether or not information gathered is admissible. If a police officer in America gathers information illicitly it may not be part of the proceedings.

In Swedish law all information is admissible. The courts are deemed competent to handle the information and decide upon its value. If a police officer gathers information illicitly in Sweden it is still admissible in court but he may face disciplinary actions by his employer.

So here’s the thing: If an officer decides he doesn’t like the look of me. He has no right to check me up. But there is no limitation to going online.

He may then find out that some of my friends have criminal records (I have several activist friends with police records) or find politically incorrect, borderline illegal status updates I wrote while drunk (I have written drunk statements on Facebook).

This evidence may be enough to enable him to argue probable cause for a further investigation – or at least (and here is the crux of my argument) ensure that he will not be disciplined harshly in any future hearing (should such a hearing arise).

The way the rules are written Facebook provides a tool that can be used to legitimize abuse of police power. And the ways the rules are written in Swedish law are much more open to such abuse.

Here are the slides I used for the presentation

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No twittering in court

A post on Slashdot this morning dealt with a juror who posted twitter comments about a trial (while it was in progress) and the effects of this may be to declare the trial a mistrial.

“Russell Wright and his construction company, Stoam Holdings, recently lost a $12 million dollar lawsuit brought by investors. But lawyers for the firm have complained that juror Johnathan Powell’s Twitter comments broke rules when discussing the civil case with the public. The arguments in this dispute center on two points. Powell insists (and the evidence appears to back him up) that he did not make any pertinent updates until after the verdict was given; if that’s the case, the objection would presumably be thrown out. If Powell did post updates during the trial, the judge must decide whether he was actively discussing the case. Powell says he only posted messages and did not read any replies. Intriguingly, the lawyers for Stoam Holding are not arguing so much that other people directly influenced Powell’s judgment, rather that he might have felt a need to agree to a spectacular verdict to impress the people reading his posts.”

This is an interesting example of the way in which new technology practice is clashing with established rules and ideas. During the recent Pirate Bay trial in Stockholm there was a vertible information orgy with live audio feed, spectators twittering from within (and outside) the courtroom and live bloggers en masse – in addition to traditional media channels. Yet the interesting thing was that the audio tape picked up the judge telling individuals in the courtroom that no pictures could be taken. On a least two occaissions the judge asked whether a laptop and a phone was being used to film the proceedings.

Everybody was filmed, photographed and interviewed entering and leaving the courtroom. All the participants were activly seen courting and presenting their cases to the media on the courtroom steps – but no photographs in the courtroom.

When a witness who was to be heard at a later date was discovered in the audience he was asked to leave. Before leaving he asked whether he was allowed to listen to the radio. The judge understood the futility of the rules when he replied – well you cannot stay in here.

The “no images” rule in Sweden or the no communicating in the US are rules which need to be explained logically to the participants. Naturally the principles of justice and equality must be upheld and should not need to be questioned at every turn…

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Academia thrillers

Most people seem to really want to believe in the peaceful co-existance among academics. Most of these people tend not to be in academia. Within this guild there are more political manouverings, illegal moves, moral scandals, alliances formed and broken, betrayals and the occaissional sunshine story to fill a mass of juicy thriller mysteries. And still people want to believe that nothing happens within the ivory tower.

One such affair which stems from my own university is the Gillberg affair which deserves a book of its own. While most of the reporting on this has been in Sweden I was pointed to a well written summary of the affair in the British Medical Journal (BMJ). The open lines of the article are worthy of any thriller:

Over one weekend in May 2004, three researchers in the University of Gothenburg’s department of child and adolescent psychiatry shredded tens of thousands of documents, destroying all data from a 15 year longitudinal study following 60 Swedish children with severe attention deficit disorders.

What became known as the Gillberg affair began in 1996, at a community summer party on the Swedish island of Resö. Among the guests were Leif Elinder, a paediatrician recently returned to Sweden after several years spent working abroad, and Christopher Gillberg, professor of child and adolescent psychiatry at Gothenburg University.

The article Hyperactivity in children: the Gillberg affair (BMJ  2007;335:370-373, 25 August) by Jonathan Gornall is well written and shows how research politics can get down right dirty and end up in the courts.

One of the main issues was the desire of Professor Gillberg to maintain the anonymity of his data. The reason for this depends upon which camp you follow. Gillberg (and his supporters) claim that the promise of anonymity the researcher gives (and often must give in order to get access) is valid. While the opponents felt that this was a convenient way of hiding possibly bad research.

The legal system, however, paid no heed to Professor Gillberg’s dilemma. Twice in 2003 the Supreme Administrative Court rejected his applications to appeal the decisions allowing Professor Kärfve and Dr Elinder access to the data on the ground that “he lacked any interest in the case that could be acknowledged in law as entitling him to apply for a rehearing of the issue.”

Most people involved in the affair have had their reputations damaged. The group that helped Gillberg, the professor and the Vice Chancellor of the university have all lost court cases and been fined. And yet the view of the Swedish research council speaks volumes:

Professor Gillberg’s work continues. Research funds have continued to flow his way, and in November the Swedish Research Council awarded him a record sum for three years of study into autism.

Professor Gillberg’s words close the article:

“In my view,” wrote Professor Gillberg, “it is unreasonable that I am first obliged to give strict promises of confidentiality by the State in order to conduct medical research, then . . . I am ordered by the State to break hundreds of promises of confidentiality . . . then I am indicted by the State and, ultimately, am sentenced as a criminal by the State because I had not broken those promises of confidentiality that I had the State’s instruction to give.

The whole affair has been a real shocker and the article is well worth reading. There is very little peace and tranquility in the ivory tower of academia a fact that some researchers find out at their peril. Most of the stories are of course not as high profile and the number of people who simply quit their academic carreers along the way would make an interesting research topic in of itself.

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Voodoo Science

In what is one of the best examples of voodoo science and the gullibility of the law that I have seen in a long time (ever?) a court in India has accepted a scientist claims that his machine can measure guilt.

The International Herald Tribune reports a case concerns a woman who was accused of killing her former fiancé by poisoning him.The legal system decided to test the Brain Electrical Oscillations Signature test of Neuroscientist Champadi Raman Mukundan.

The test to measure her guilt consisted of placing 32 electrodes on the accused head. They interrogators then read aloud their version of events, speaking in the first person along with with neutral statements. From this the software distinguishes memories from normal cognition. Even if the accused said nothing her brain reacted when the crime was described. The judge agreed that the scans were proof of “experiential knowledge” of having committed the murder, rather than just having heard about it.

Obviously there are too many reactions to this! But let’s ignore the obvious lack of technical reliability, the need to prove the technology and the differences in legal and scientific methods and standards of proof.

Lets just say that the accused may have a guilty conscience in relation to the victim for several reasons other than the fact she may or may not have poisoned him. In addition to this she may lack any emotions of guilt even if she poisoned him.

The scary part is that the dignity of science is accepted without too many pertinent questions by the court and create real consequences.


Voodoo Fetish Market, Lomé by themanwithsalthair

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