Freedom Is Not Free

In the days following the Texas Court of Criminal Appeals’ ruling that the state online solicitation of a minor statute was unconstitutional, there was an outpouring of appreciation toward Mark Bennett for his excellent work on the case. Whether he deserved it or not, he was called a “hero” for what he accomplished.

One of the most dangerous things in law is the belief that somehow, some way, the law will “right” itself because some White Knight will ride in to save us.  It’s the law’s version of the economics concept of the invisible hand, except what works in economics has no analogue in law.  As Bennett explained:

Prin­ci­ples? Sure, I’ve got ‘em: free­dom is bet­ter than safety; knowl­edge is bet­ter than igno­rance; love is bet­ter than fear.1 If they’re try­ing to put you in a box and you have the coin to hire me, I’ll try to keep you out. If you don’t have the coin, I might do it any­way. I take a lot cases for free. But not because I have to. I take cases for free when doing so amuses me.

I didn’t take the case that got 33.021(b) tossed out for free.

He was no hero. He was a hired gun. Kid Shilleen. Paladin. Have law, will travel. The hero, if the word has any applicability at all, was the defendant, who chose to fight rather than give in, and was willing to put up the money to retain excellent counsel to fight.  He fought at the trial court level. He fought at the first level appeal. He fought to the longest of long shots, the Texas Court of Criminal Appeals. And each fight cost him, yet he fought.

What distinguishes the defendant whose case Bennett won was his willingness to fight and his willingness to pay a great lawyer to fight for him.  There were plenty of other potential litigants who could have made the same arguments and taken the case to the top. They didn’t. He did.

That’s unfair, you say?  Others don’t have the money. Others have personal issues that change the risk/reward calculus. It’s unfair to point at all the defendants who didn’t fight and remind them that they had the chance?

It is unfair. The system is unfair. Life is unfair. Get over it. In a comment to Bennett, Brian Drake asks a good question:

Hav­ing applied for and received a num­ber of grants in the aca­d­e­mic world, I won­der if there are sim­i­lar fund­ing oppor­tu­ni­ties for these kinds of efforts.  A cur­sory Google search did not reveal any­thing on point, but when I reflect on the breadth of foun­da­tions out there, and the depth of their col­lec­tive pock­ets, I’m left think­ing that this might be a fruit­ful avenue.

Are you aware of any orga­ni­za­tions that pro­vide the fund­ing for exter­nal hired guns?  If so, I would be hon­ored to con­tribute to a grant-writing effort to secure the funds nec­es­sary to con­tinue this fight.

It’s ironic that the academic perspective is so similar to that of the person on the street in this instance, that there ought to be some magical funding source that makes law happen.  Perhaps if scholars stopped producing law review articles that no one will read at a relative value of $100,000 a pop, the money would be available for the defense of the poor.

But they’re not chipping their salaries in, and there is no foundation throwing money at the million poor defendants our nation produces, and even if there was, the defendant would be long imprisoned before the grant-writing effort came to fruition.

It’s unhelpful to encourage a belief that some White Knight out there will ride to your rescue. It takes the eye off the ball for those who need to stay focused the most. The issue is brought to a head in two instances, happening even as I type.

Carlos Miller of Photography Is Not A Crime will be going to Boston to answer for his crime of urging people to call the Boston Police Department’s public affairs director to redress a wrong. Lacking the wherewithal to retain counsel, he set up an Indiegogo fund.  The amount he sought was, shall we say, underwhelming, but contributors have blown through it and are well on the way to funding a defense.

Carlos didn’t lay down and cry, but did what he had to do.  Instead of waiting for a White Knight to save him, he sought out a hired gun, and worked the streets for the money to pay for it. But you’re not Carlos Miller, and if you set up the same fund, chances are nobody would show.

In the case of Lavabit, the now-defunct secure email provider that was crushed when the government took interest in its client, Edward Snowden, the United States government has just submitted its respondent’s brief on appeal. The TL;dr version is that, regardless of all the thoughtful and interesting issues raised by Marcia Hoffman on behalf of the Electronic Frontier Foundation, Lavabit’s owner, Ladar Levison, blew it all up front by failing to raise them in the court below.  The heading to the government’s first point is soul-crushing:

BECAUSE LAVABIT FORFEITED NEARLY ALL THE ARGUMENTS IN ITS BRIEF BY FAILING TO RAISE THEM BELOW, THE STANDARD OF REVIEW IS PLAIN ERROR AT BEST

When I sought to make this point here, the reaction from the geeks was disheartening.

The article and the commenters fail to put themselves in Levinson’s shoes. You’re looking a guy who is far from rich who has no contacts with the kind of attorney that he needs.

If he did have the name of a competent firm, their first response would probably be: “Write us a retainer check for $50,000 and we’ll get right on it.”

I think this is what’s called a no-win situation.

See the difference in approach between Carlos Miller and Ladar Levison?  See the numbers? Yet there was no arguing the point with the geeks, who were absolutely certain they knew more about law than lawyers.

And why is it that his assumptions were flawed?

Why is it that he (and his small business attorney) didn’t find “a number of fairly well-known and well-regarded lawyers who are easily findable”?

Clearly they are not as “easily findable” as all that.

You seem to be blaming Mr. Levinson for not being a savvy legal customer. You haven’t convinced me. Mr. Levinson knew his business was running an internet service and by all accounts did it well. It was the legal profession’s business to help him find the right professionals to defend him, and it failed.

The fault is ours, members of the legal profession, for not riding up to his door step on our steed to save him from evil.  And what makes this even more of a painful story is that the EFF did, in fact, ride in as a White Knight, albeit after the damage was done, because of the significance of the case and issues at stake.

Are the issues raised by Carlos unworthy of the White Knight’s attention? Were the issues in Bennett’s case, resulting in a law being tossed, trivial?  The choice is unfair, but it remains the choice. Either put up the fight, pay for the fight, make the fight, or whine about how unfair it is.  Only one has a chance of prevailing.

13 comments on “Freedom Is Not Free

  1. jakee308

    I think the Legal version of the economic invisible hand would be vigilantism. That’s frowned on in most jurisdictions though.

  2. 10Guiltymen

    There are lots of non-profit firms and orgs that I guess one could call “white knights.” The problem is that they generally have to pick and choose their clients. A friend of mine works for Disability Rights New York, and they regularly turn down cases they don’t have the resources or manpower to take on. I know that the Innocence Project turns down a lot of cases as well. The White Knights do exist, but you can’t always count on them coming to the rescue. Whether we like it or not, private counsel is the most reliable option. And I say that as someone who’s interviewing for a Public Defender position with Legal Aid next week.

    1. Mark W. Bennett

      Feh. Decent hired lawyers do lots of pro bono work; they also “have to pick and choose their clients….and they regularly turn down cases they don’t have the resources or manpower to take on.”

      I think that in most areas the lawyers’ distributed approach to pro bono does more good for more people than non-profits because the lawyers don’t have added administrative costs.

      1. SHG Post author

        Lest anyone (or everyone) get the wrong impression, obtaining representation via a private lawyer pro bono or an organization is akin to winning the lottery. The odds may be better, but let’s not give people the impression that if they just ask enough people, they will end up with pro bono representation. Chances are very slim, and they shouldn’t bet their lives on such slim odds.

  3. Mark W. Bennett

    It was the legal profession’s business to help him find the right professionals to defend him, and it failed.

    If by “legal profession” your commenter means “Jesse Binnall,” then I agree entirely.

    1. UltravioletAdmin

      Yeah, the problem being the incompetence of Jesse Binnall is a higher standard than it should be in criminal courts, and recouping the costs via a civil trial against him for malpractice does nothing for his criminal contempt.

        1. UltravioletAdmin

          Quite true, I spoke from my own perception reviewing the facts later. He might of been quite reasonable at the time. However, if he wasn’t doing his reasonable best work, it doesn’t really help Lavabit out as much as the advice of counsel should. Also, it’s quite possible he told lavabit everything they should know, including who to call for the appropriate motions work, but Lavabit blew him off.

          Many folks I’ve met in tech, some of which are like those posting here for the first time, are quite capable of ignoring their lawyers because they think they are right. You see it especially in small companies with a single owner whose not gonna let a lawyer deter them. They don’t care what the law says, they think it should be this way, so they’ll act like this.

          Truth is we don’t know enough about the internals, and likely won’t ever know. I took cheap shots and am well rebuked.

          1. SHG Post author

            …because they think they are right.

            There is that belligerent pseudo-libertarian attitude that makes them want to deny the ramifications of the law, control their lawyer and argue about everything. It’s exhausting and counter productive. Or there is a young lawyer in need of whatever money he can get who doesn’t realize or care that he’s over his head. I dunno which it is. There are just too many moving parts that can go wrong, and as you’ve seen from some of the kookier assumptions/arguments here, they really don’t want help, don’t believe they need help (because their smarter than everyone else) and make it so difficult and unpleasant to help that it may not be worth the effort.

  4. pj_cryptostorm

    It seems there’s a bit of an apples-and-clams comparison going on here; great for rhetorical purposes, not so much for elucidation.

    Levinson was targeted by the Feds, under secret legislation involving a gag order and the full threat of Fed assault if he bucked. Feds tasked with hunting down Snowden, which means the flimsy “limits” on their behaviour normally present were pretty much nonexistent. With OBL dead, Snowden’s pretty much their top target at this point – legal, illegal, extra-legal… whatever.

    In contrast, Carlos faces a nuisance charge from local Boston cops. It’s a travesty, and he shouldn’t face it – all true.

    But note: these two things are not the same, nor even close.

    Levinson couldn’t go to Indiegogo – or even his friends – to raise early legal funds. Gag order, eh? He couldn’t go to /. and solicit advice. Indeed, he couldn’t go to twitter and ask for help finding defence counsel, as Barrett Brown’s people did last year – and which allowed some other geeks (myself included) to aid him in finding top-class legal representation as well as the resources (via a defence fund) to pay for it. We know how to do that, even us geeks.

    But a gag order – and rampaging Feds – makes things a bit more complex.

    It’s all the rage nowadays to rag on Levinson – in the tech world, it’s ’cause his cryptographic architecture wasn’t as good as it should have been (boring details omitted). But back-seat driving is always easier than being at the wheel. We can learn from his experience – indeed, just how one SHOULD raise funds for counsel in the event one is gagged by the United States Government is a highly pertinent question. That’s good information for privacy-tech geeks to have on-hand. But beating up Levinson because he wasn’t fully prepared for that kind of attack is simply unjustified – nobody was, and very few are today. Singling him out because he was the email provider for Snowden borders on tendentious.

    As to the EFF, in some circles they have a great reputation for riding to the rescue… after a case has already proved popular with the public, good for fundraising, and likely to bring lots of positive publicity for the EFF. Other cases? Declined. Glad to hear they’re on Levinson’s case; worth noting that they turned us down flat when Barrett went to them…

    1. SHG Post author

      Whoosh.

      Plenty know what to do. If no one you know has a clue, you need to hang out with different people. I might say smarter, but I’m sure that wouldn’t be possible. ;-)

  5. pj_cryptostorm

    By all means do enlghten us dumb fools – people who, you know, run crypto-intensive privacy services. Because I know, firsthand, a decent representative slice of people doing so and – hate to burst your bubble – but not many are spending hours of every day studying the intricacies of FISA gag orders and the jurisprudence relating thereto.

    Now, I know, if we were “smart” we’d stop wasting time proving service to customers and writing code and making things… and invest that time in studying the law. But, problem is, if someone doesn’t actually make money then there’s no way to pay big-bucks lawyers to defend us. Which, as you’ve pointed out, would be dumb. So we don’t want to be dumb – but, surprisingly enough, money fairies don’t deliver wads of cash for us so we can retain top-notch talent. We have to earn that money, by providing services to people who want to buy them. Which, sad as it seems, takes time and focus – meaning our time and focus on intricate, fast-evolving, opaque areas of law (law which is secret, administered by secret courts, in a nontrivial percent of cases) is less available. Fascinating as it would be to spend all day studying the law – if we did so, we’d be lawyers. Instead of hiring lawyers.

    I don’t assume you understand crypto, because that’s not what you do for a living. You’re a lawyer – and I assume you know far, far more about the law than I do. That’s how “being a professional” works. And, at least in our world of professionalism, someone who points out that “you should already know how ECDHE works and if you don’t you’re a dumbass” has marked themselves as a petulant ingrate. The real professionals are able and willing to distil down the concept to something concise, accurate, and useful – not for people who already studied ECDHE and already understand it, but for folks who have neither the time nor interest to do so.

    Impress us with your acumen and legal expertise: tell us dumb geeks what to do when a secret court with a secret court order that gags us from discussing it shows up and demands we subvert our security systems and betray our customers. You seem to be suggesting we raise funds via Kickstarter, which… I dunno, seems not like excellent legal advice. Perhaps we just wait for the “money fairy” to show up so we can retain excellent counsel? Or, we’re just assumed to have so much money that a few hundred grand here and there is something we’re eager to waste on a frivolous case by the Feds.

    But maybe if I hung out with the “right people,” they’d fit all these criteria. I dunno – clearly, you’re far better connected with my industry than I am. Naturally.

    Whoosh, indeed…

Comments are closed.