Paul Ohm
Paul Ohm gets up and confesses that his boss is John Ashcroft. Gets a laugh (post John Podesta talk last night about Ashcroft as destroyer of civil liberties).
Technology in the courtroom: Too much of it, and not enough of it (”hyperlinks are typically blue”).
Digital evidence review: we look at hard drives for things (what will they do when hard drives go away?).
But question is: is the person looking at hard drive an expert? Do we need a Daubert hearing? Usual answer is “yes.” If we're going to have someone saying child porn is there, we need to be able to say that person was an expert. Certification as an expert is viewed as needed.
But it shouldn't be that everyone talking about a hard drive file has to be qualified as an expert. Eg, if someone pulls fibers on behalf of the FBI, we don't need to say that person is an expert. This high hurdle won't change Ohm's job — there are plenty of resources there. But for small-time prosecutors, it creates enormous costs.
Second: Court opinions in the surveillance/seach and seizure field are rare. And they describe technology clumsily. Where statutory construction depends on this, we're in trouble. It's not that judges can't understand technology, but analogies don't work well, and litigants don't help them, and labels for things change rapidly. Eg, arguing to the court that “the internet is like a giant tube, and if you put too much into it it will burst” (for distributed denial of service). Doesn't help people understand things.
And even use of “email” as a term, without further description or definition, doesn't help people much. Over time, things change. So we can't understand the scope of the precedent.
Eg, under Stored Communications Act, what does “electronic storage” mean? defines line between search warrants (storage) and subpoenas (if not storage). Kozinski focused on “backup protection” element — all email systems are in backup protection. But what's he talking about? POP, IMAP, webmail? entire logic turned on this distinction, but we can't tell what's going on.
In CDA case: Stevens says web pages “generally also contain 'links' to other documents created by that site's author”… “typically, the links are either blue or underlined text”
He gets a big laugh and applause.
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