Otherwise Occupied - evidence

Bar Review: Day 58

gregh — Wed, 23 Jul 2008 23:58:50 -0500

It would be really great if there could be just a few more minor, piddly little distinctions between California civil procedure and California evidence and the FRE and FRCP.

Who is "the justice system?"

gregh — Tue, 24 Jul 2007 07:00:00 -0500

Study of Wrongful Convictions Raises Questions Beyond DNA - New York Times:

When an airplane crashes, investigators pore over the wreckage to discover what went wrong and to learn from the experience. The justice system has not done anything similar.

But a new study does. Brandon L. Garrett, a law professor at the University of Virginia, has, for the first time, systematically examined the 200 cases, in which innocent people served an average of 12 years in prison. In each case, of course, the evidence used to convict them was at least flawed and often false -- yet juries, trial judges and appellate courts failed to notice.

It's not clear to me who "the justice system" that is not poring over the cases of exonerated prisoners is. Exonerated prisoners are from multiple states, are released for different reasons at different times, and they've been convicted and freed under disparate laws.

Has this mythical "justice system" truly turned a blind eye to its failures? The article puts forth some points that refute that:

There were false confessions in 16 percent of the cases, with two-thirds of those involving defendants who were juveniles, mentally retarded or both.

Certainly many participants in the justice system have acted on these issues. Evidentiary rules often allow greater flexibility for juveniles and the mentally retarded to tell their stories in court. Miranda must not only be heard but understood to be waived.

Is it surprising that many in this group still slip between the cracks? Unfortunately, no. Our system strives for fairness and process, but not perfection, whether in fairness, process, or results.

And while the article points out that many crimes don't lend themselves to exoneration by DNA, it says a little more:

Perhaps the most troubling finding in Professor Garrett’s study was how reluctant the criminal justice system was to allow DNA testing in the first place. Prosecutors often opposed it, and 16 courts initially denied requests for testing.

. . .

The era of DNA exonerations should be a finite one. These days, DNA testing is common on the front end of prosecutions, meaning that in a few years, the window that the 200 exonerations has opened on the justice system will close. We should look carefully through that window while we can.

This suggests that the "justice system" does, in fact, assess its errors and weakness. The system, through judicial, legislative, or other rulemaking action makes corrections based on new information from past failures and successes.

It's not a perfect system. We should examine the flaws where we find them. But we also must realize that perfection is unobtainable. We will always convict the innocent, and we will often exonerate the guilty. We should strive for zero in each of those categories but recognize that that is a goal we cannot reach.

TorrentSpy order and web access logs

gregh — Tue, 19 Jun 2007 08:47:12 -0500

For those who've missed news of the order, TorrentSpy, one of the large "torrent trackers" has recently been ordered to begin recording server logs.

I'll be the first to admit that I don't understand the internals of IIS 6.0, which is apparently what's in use by TorrentSpy. However, I have written ISAPI filters and extensions which can intercept and modify server log data, and I have serious technical questions about the judge's interpretation of things. Unfortunately, I don't have the declarations cited in the order. I assume these give some technical evaluation on how server log information is "stored" in memory.

Of course, the very notion that content is "stored" in volatile RAM runs counter to standard technical terminology and understandings. Storage is different from memory (or RAM or core.) The notion that what lives in an internal memory structure is the equivalent of stored log files is laughable.

The judge trots out copyright principles, which is not a surprise. It's the first thing that came to mind. She cites the recent Ninth Circuit decision, Perfect 10, Inc. v. Amazon.com, Inc.:

In that case, the court stated: "A photographic image is a work that is 'fixed' in a tangible medium of expression for purposes of the Copyright Act, when embodied (i.e., stored) in a computer's server (or hard disk, or other storage device . . . .) (a computer makes a 'copy' of a software program when it transfers the program from a third party's computer (or other storage device) into its own memory . . . .)"

Well, she has certainly nailed down how software companies get away with licensing use of their software. However, she seems to miss the logical leap she takes after this.

D. Requiring the Preservation and Production of the Server Log Data Is Not Tantamount to Requiring the Creation of New Data Rule 34 only requires a party to produce documents that are already in existence.

Now, just how does the judge figure these logs files are represented in RAM? I have a very hard time believing that an IIS server, told not to keep logs, maintains an honest-to-goodness access log in memory. Instead, at best, I imagine it keeps the request data structures. If we pull out that good old copyright from above, we might find that translating those data structures from their in-memory form to log file format is, in fact, production of new data.

Why is this producing new data? Well, because most likely, the data structure doesn't store all of the log data in one big chunk of contiguous memory in lovely ASCII. Instead, it's no doubt comprised of pointers to memory living throughout the process space. Pulling the data from disparate parts of RAM into a different form is almost assuredly creating new data. Among other things, it will have to be formatted.

From what I can tell, the MPAA wasn't actually asking for a bitmap of the server's RAM at given times. If one were able to take the judge's order seriously at all, that is what I would like to see delivered to the MPAA. Let them figure it out from there.