On the Need for Amici Curiae in Computer Cases

Christian Desilets, Research Attorney II, National White Collar Crime Center

It’s a cliché by now that technology is ever-changing, or that we live in fast-moving times. But trite or not, the fact remains that technology is in a state of near-constant flux. This is especially pronounced in the computer technology field. Where other industries are marked by incremental improvements on the same basic model, computers have seen a succession of transformative, paradigm-shifting changes. Show someone from the ‘60s a modern car and they’ll at least have a general idea of how it works. Show a police officer from the ‘70s today’s street drugs and they might see a few newcomers, but the basic concepts will be the same. If you had shown someone from the ‘80s a modern iPhone, however, they would have been confronted with a number of concepts that simply wouldn’t have made sense – a portable phone, sure, but a portable computer/photographic camera/video camera/library/music collection/movie collection/TV/game console that could obey voice commands, always knew where you were, and could search the information found in a planet full of interconnected computers? The British television character Dr. Who should be so lucky (and audiences would have groaned at yet another it-can-do-anything plot device). Certainly, there were quite a few sci-fi heroes who could have benefited from having access to one. Those Death Star plans in the Star Wars movie, for example, would have been a lot safer to send as an attachment.

Because digital and computer technology is changing so quickly in ways that are all but impossible to predict, the laws governing these areas are often not a precise fit. The state of the art is a moving target and laws passed today that are perfectly tailored to the current situation won’t even have imagined the world of five years from now. This means that the law relating to computers and the Internet is, more so than any other body of law, in a state of being constantly reinterpreted in the face of legislatively unforeseen circumstances. This puts a special pressure on judicial precedent, as there are so many more cases of first impression in the computer arena than in others. Electronic evidence finds its way into more and more cases. Given the increasing ubiquity of computers and mobile digital devices, these cases are only going to become more common. Judges can’t hope to keep abreast of the complicated, legally significant details of these emerging technologies.

While there are various ways to cure this defect, one of the more cost-effective is the amicus brief. It’s a way of getting relevant technical information in front of the judges without having to deal with the expense (and other complications) of expert witnesses. It’s also a way of seeing that the judges have the information that they need before them, without hoping that they found room for an advanced course in the topic at trial in your particular case. While it is hoped that judges nationwide would recognize the importance of staying well-versed on a variety of technological issues in the digital age, the fact of the matter is that judges, like everyone else, have to prioritize their time and tend to focus on the details necessary to handle the cases that they see most every day. Perhaps more importantly, even judges who are actively trying to maintain a high level of awareness of computer-related issues are unlikely to have studied the matter with the type of granular attention to detail that so many legal arguments come down to in the end. Are messages at rest or in transit when they’re moving through a computer’s dynamic memory? Does the concept of interception apply to wireless information packets when they are specifically designed to be read by any and all wireless-capable devices in range? These sorts of questions require more than a passing familiarity with the issues involved, and more detail than one is likely to pick up in a general course.

The National White Collar Crime Center (NW3C)[1] was recently pleased to submit an amicus brief addressing technical details of a similar sort on behalf of the Commonwealth of Massachusetts, in SJC-11358 — Commonwealth v. Gelfgatt (http://www.ma-appellatecourts.org/?brief=SJC-11358_10_Amicus_National_White_Collar_Brief.pdf). [1] This case dealt with the government’s ability to compel a defendant to enter a password for an encryption program in a situation in which the defendant had already admitted ownership of (and ability to access) the computer in question. In the brief, the details of how encryption works in general, and in the defendant’s product specifically, were explained and explored for legally relevant details. The NW3C attorney who wrote the brief was greatly assisted in his task by input from a computer crime specialist who not only understood and researched encryption, but who also helped author encryption-detection tools for law enforcement and who regularly instructs officers in how to handle devices that are suspected of being encrypted.

NW3C is a nonprofit entity that offers training on all aspects of high-tech and financial crime to state, local and tribal law enforcement, including state attorneys general offices. Many of our services, including everything relating to amicus briefs, are free of charge. This was NW3C’s first foray into writing such briefs, but we are happy to work with AG offices to help bridge whatever knowledge gap is being faced in court. We employ veteran police investigators, military intelligence analysts, IT specialists, computer scientists and former hackers to develop a full picture of what’s going on “under the hood” – a picture that’s then interpreted through staff lawyers and adult education experts into a brief that’s focused tightly around the facts of a case. Amicus briefs and similar requests are handled by NW3C’s Research Department, which can be reached at http://www.nw3c.org/services/research,via email NW3C_research@nw3c.org, or by calling (304) 367-1994.

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Christian Desilets
Christian Desilets

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