Every criminal defense lawyer has sat before a client in stunned bemusement listening to the client explain his understanding of the law.  Usually, the explanations are amazingly wrong, showing such a fundamental lack of comprehension that one wonders how they’ve managed to elude prison this long.  But sometimes, a client will present an understanding that is sophisticated, supported, well-reasoned and utterly wrong.  Still, it’s such a well-grounded argument that the lawyer has to shake his head and think about it for a few minutes to figure out why such a fine sounding argument is inherently flawed.  Some lawyers can’t figure it out until it’s too late. Uh oh.

Via Ambrogi at Legal Blog Watch, Paul Ohm at Freedom to Tinker has taken on the task of cleaning up the brilliant but wrong mess created and spread by geeks, who have decided that they have figured out how to game the system.  Paul calls them YANALs, standing for “you are not a lawyer.” 

With this post, I’m launching a new, (very) occasional series I’m calling YANAL, for “You Are Not A Lawyer.” In this series, I will try to disabuse computer scientists and other technically minded people of some commonly held misconceptions about the law (and the legal system).

I start with something from criminal law. As you probably already know, in the American criminal law system, as in most others, a jury must find a defendant guilty “beyond a reasonable doubt” to convict. “Beyond a reasonable doubt” is a famously high standard, and many guilty people are free today only because the evidence against them does not meet this standard.

The geek YANALs have apparently developed a series of theories and even technologies which they believe will insulate them from prosecution. 

When techies think about criminal law, and in particular crimes committed online, they tend to fixate on this legal standard, dreaming up ways people can use technology to inject doubt into the evidence to avoid being convicted. I can’t count how many conversations I have had with techies about things like the “open wireless access point defense,” the “trojaned computer defense,” the “NAT-ted firewall defense,” and the “dynamic IP address defense.” Many people have talked excitedly to me about tools like TrackMeNot or more exotic methods which promise, at least in part, to inject jail-springing reasonable doubt onto a hard drive or into a network.

People who place stock in these theories and tools are neglecting an important drawback. There are another set of legal standards–the legal standards governing search and seizure–you should worry about long before you ever get to “beyond a reasonable doubt”.

While I have no issue with this “advice”, it does suggest that their ideas are otherwise valid from the perspective of beating ultimate conviction.  I’m not so sure.  In fact, I have some serious doubts that life through the eyes of a computer geek will either comport with the reality of a courtroom, from evidenciary problems to “saleability” to a jury.  This is a hard thing to explain to people who are binary thinkers.  Their tolerance for ambiguity may be a bit limited.

Much as I admire Paul’s efforts to take on geekdom, his effort seems to suffer from some of the same misconceptions as his intended audience:

In addition, you will have been assigned an overworked public defender who has no time for far-fetched technological defenses and prefers you take a plea bargain, or you will have paid thousands of dollars to a private attorney who knows less than the public defender about technology, but who is “excited to learn” on your dime. Maybe, maybe, maybe after all of this, your lawyer convinces the judge or the jury. You’re free! Congratulations?

This is the depth of understanding one would expect from a client, not a lawyer, and certainly not a criminal defense lawyer.  But the blog is hosted by Princeton University’s Center for Information Technology Policy, and offers nothing to confirm that Paul Ohm is a lawyer (Ambrogi’s post says that he’s an associate professor at University of Colorado Law School, but that doesn’t exactly answer the question, now does it?), or if so, what type of law he practiced or how long he’s practiced.  Or if he’s practiced law at all.  Based upon the quote above, my guess is that he’s either never really practiced law, or he’s was a prosecutor.  What he is not is a lawyer who knows what he’s talking about when it comes to criminal defense lawyers.

My experience is that YANALs view the law as a series of hypertechnicalities, anyone of which will trip up the cops and prosecution.  They harbor a bizarre belief that the nice words appearing regularly in court decisions actually mean something, rather than present black letter law which is then torn to shreds by the thousand exception and the functional refusal to apply it in the trenches.  How does one explain to a binary thinker that a judge waves his arm and the law mysteriously disappears?  “They can’t do that!”  Oh yes.  They can.  They do.  Every single day.  Welcome to the real world.

We all have this problem with YANALs, many of whom post comments here that reflect pure unadulterated silliness based upon their lack of understanding of the law coupled with their belief that they have a better idea.  They often bring much to the discussion, challenging our preconceptions with their misconceptions, and every once in a while come up with a truly great idea.  It doesn’t happen often, but it does happen.  So we take the good, ignore the bad, and go on with our lives.  Sometimes we correct the YANALs and other time we let them rant.  Everyone needs a catharsis now and then.

While Paul Ohm’s effort to disabuse the YANALs is admirable, I hope that he’s got the background to make the right points from the right perspective.  I have serious doubts that he does, based upon this inaugural post.  It’s one thing to spread misinformation amongst a bunch of geek YANALs.  It’s another to correct them with information that’s only marginally better, but still far off the mark.