[draugadrotten]

It's a common mistake by techies to think that technical details make a difference in (Swedish) court. They don't. Technical details are rarely important in Swedish court, where the court is free to consider all evidence, even if it's obtained illegally or just is weird.

So called "technical evidence" is rarely "technical" for techies. It's often just HTTP logfile print-outs or a screen shot of a file sharing program. That's as technical as it gets. The judges don't know Excel from Word, and the prosecutor don't know HTTP from UDP. The defense have to work on the judges, not on the truth.

And in the end, they judges judge people based on emotion and political opinion anyway. After all, isn't a law but a formal moral opinion?

[GuiA]

Relevant link:

"We record the judges’ two daily food breaks, which result in segmenting the deliberations of the day into three distinct “decision sessions.” We find that the percentage of favorable rulings drops gradually from ≈65% to nearly zero within each decision session and returns abruptly to ≈65% after a break"

http://www.pnas.org/content/108/17/6889

[graeme]

Actually, this isn't as relevant as it seems. The parole judges in the study are given a steady stream of cases, without deliberation. There's also a clear default: "no"

Some court decisions fit that mold, but many do not. Often, court decisions have no default, and the judge retires to consider the arguments.

The study in question was very important for showing that humans are often not guided by rationality. But it's not necessarily a great demonstration of how all legal decisions are made.

[graeme]

Can't edit my comment. Meant to add something:

"But it's not necessarily a great demonstration of how all legal decisions are made."

Nor was it intended to be. I'm not suggesting the study was flawed.

[baddox]

> It's a common mistake by techies to think that technical details make a difference in (Swedish) court.

Or, you could say that it's a common mistake by courts to think that technical details shouldn't matter.

[thirsteh]

It's a mix of both. There are judges that don't care about the technical details -- that's wrong. But there are also people who think they won't be convicted of a crime because of an irrelevant technical detail. The fact that you disclosed the existence of a secret warrant by removing your warrant canary, for example, is highly unlikely to make a judge think you did nothing wrong.

The argument that the Swedish judges and prosecution make is that, though ThePirateBay does not necessarily host the pirated content, the site causes pirated content to be disseminated massively, and it exists solely to facilitate piracy. I don't personally agree with this, but I can't deny it's pretty hard to refute this claim when you literally named your website "The Pirate Bay."

[jcrites]

Digression. Speaking specifically to your warrant canary example, the EFF seems to believe that there is reasonable legal theory behind them: https://www.eff.org/deeplinks/2014/04/warrant-canary-faq

The First Amendment protects against compelled speech. While courts might gag you and prevent you from speaking, they almost never compel you to speak. Compelled speech is limited to truthful speech where the statements convey important truthful information to consumers (e.g., health warnings on cigarettes). There is no precedent for a court compelling a company or person to lie.

I agree that it will be quite interesting to see how a court reacts to the idea that a person has constructed a situation in which they must lie in order to avoid disclosing the warrant. I was also interested to learn that Apple publishes a warrant canary: https://ssl.apple.com/pr/pdf/131105reportongovinforequests3.... ("Apple has never received an order under Section 215 of the USA Patriot Act. We would expect to challenge such an order if served on us.")

There must be a line, though. I suspect it would not succeed to publish many statements each like "We have received fewer than than 1,2,3,...,100 warrants of type X this year", or, "We have never received a warrant regarding an individual whose name begins with C", striking only those that are false as warrants are received. I would guess that this would cross a line, though it's difficult for me to articulate why. Ultimately there is no court precedent for warrant canaries, so the outcome is unknown.

[ObviousScience]

Warrant canaries actually are a relevant distinction: the state has the ability to compel you not to reveal something, but rarely if ever the ability to compel you to speak, outside of testifying (at least, in the US).

Dismissing them trying to exercise a different power than the one they're granted by the law as a "technicality" is a disservice to the rule of law. It's not a mere technicality, it's a fundamentally different kind of action.

[pdabbadabba]

> but rarely if ever the ability to compel you to speak, outside of testifying (at least, in the US).

I don't think this is at all true. A U.S. judge would not hesitate to issue an injunction ordering you to update your warrant canary if they thought there was a good reason to do so. I'm not aware of any law (including the Fifth Amendment -- which deals only with self-incrimination in a criminal proceeding) that would prevent them from doing so. Am I missing something?

[gear54rus]

And that is exactly why they should never even be allowed to handle something they don't understand.

Gosh, it's like a fundamental obvious thought: don't make decisions about something you don't understand.

How to solve this is another story.

[gcb0]

now explain how that is different from anywhere in the world...

[rayiner]

In the U.S., you have strict evidentiary rules and the opportunity to get expert testimony into the record. If the judge doesn't know HTTP from UDP, you get a Stanford PhD expert witness to explain it. If your opponent mischaracterizes the distinction, you comb over the transcripts and get your expert to submit a declaration picking apart each instance of mischaracterization. Everything goes in a voluminous record that is dissected on appeal.[1]

In my opinion, in the U.S., courts rarely get technology straight-up wrong. What technologists call "not understanding technology" is usually more an artifact of judges not sharing the same values. I.e. just because a judge understands the difference between a torrent and the actual file doesn't mean they're going to be sympathetic to an "information wants to be free" attitude towards copyright.

[1] Of course, this is one reason litigation in the U.S. is so expensive and time-consuming.

[WildUtah]

"... in the U.S., courts rarely get technology straight-up wrong."

Except, of course, the patent courts -- the Court of Appeals for the Federal Circuit and their pet district courts in East Texas. In those courts the judges have a personal career interest in how technology is regulated by the patent system. The result is that judges are competent but motivated to use reasoning to reach personally beneficial conclusions rather than ones rooted in objective law and reason.

That's why software patents keep expanding and more tech savvy judges just keep making them expand more when you might think they would keep them under control.

[pdabbadabba]

> personal career interest

Quite an accusation, but I have no idea what you could be referring to. What's the interest? It can't just be that they need to keep the patents flowing for the sake of job security, since they already have life tenure...

[harryh]

The breadth of software patents isn't expanding, it's contracting.

[bjornsteffanson]

It's not different, and I believe that was the point. There is a weird stereotype that I've encountered about Sweden that I wasn't aware of until the first time I lived outside of our country...whenever something like this comes along, there's a notion that some people think "Oh it's Sweden, they'll do the right thing," as if our laws or courts are somehow "more right" or "more just" than others. I think what the preceding comment was trying to point out is that that is not always true.

[jbaptiste]

That's very true. In Europe, Sweden is in our minds like one of the two or three countries where everything seems to be "good". Economics are good, people are nice, unemployment seems low and somehow those countries act as "The goods and respectables guys from the north". That's a very common feeling in EU.

[meowface]

The same sentiment is held by many in the US. Sweden, Denmark, and Norway are viewed as more modern and civilized societies.

[PhantomGremlin]

Don't forget the "babes". When I think of Sweden I think of http://www.people.com/people/elin_nordegren/

[renaudg]

This is indeed the good image that Sweden has for more southern Europeans. Although the whole Assange case has shown that even there, politics can be stronger than justice.

[dogma1138]

It's not, but depending on the country not every judicial system has the same weird regulations as the US one. For example hearsay, evidence without a clear chain of custody, and many other things that would be thrown out of a US court are accepted in most other western countries. The Judges know how to deal with that evidence and under which circumstances except it or not, some one lost a tag on an evidence bag doesn't really scares them, the evidence came from an "unofficial" source, as long as it's credible they'll take it in and so on.

[jeltz]

That Swedish courts do not have to worry about how evidence is obtained. It can always be used.

[wuliwong]

I seriously doubt that all judges in Sweden do not know the difference between Excel and Word. I know you are trying to make a point but you are doing it poorly.

[shock-value]

It's obviously hyperbole.

[wuliwong]

And I obviously understood that.

The point is, the commenter has no clue which judge will preside over this case and furthermore cannot possibly know the level of technical knowledge the judge will possess. I didn't realize that pointing out the flaws in a comment was something you got down-voted for by the HN elite.

He's trying to strengthen his argument with hyperbole that is not backed up in anyway with real evidence.

[Moru]

Seriously, why is people pirating that crap? Throw out the TV and stop going into that what is just a bad copy of every other movie out there already. The same goes with games. They just get more and more shallow as the grafics get pumped up. Every shared movie/game is another proof for the producers that they are creating something that people wants. If people finally would vote with their wallet instead of going for the latest crap all the time, mabe we would have quality games and movies?

[jeremiep]

The very same argument could be made about your comment.

[castis]

People DO vote with their wallet by straight up not paying for the material, or did you forget what thread you were in?

[prawn]

We do have quality games and movies, but not all movies and games are going to be considered of a high quality by all people.

[cortesoft]

Obviously a lot of people think they are of sufficient quality to be worth watching/playing.