There’s a knowledge gap in technology-based court cases.
The trial began this week for Ross Ulbricht, the 30-year-old Texas man accused of being the mastermind behind the dark net drug market, Silk Road. But as the jury began hearing testimony in the case, it was clear the technological knowledge gap would impede the proceedings.
Judge Katherine Forrest said right off the bat when the case began that "highly technical" issues must be made clear to the jury.
"If I believe things are not understandable to the average juror, we will talk about what might be a reasonable way to proceed at that time," she said.
After the first day of proceedings, Forrest told the prosecution to be more clear with explanations of concepts central to the case, noting she was unhappy with its "mumbo-jumbo" explanation of the anonymizing service Tor. She also requested all readings of chat transcripts include emoticons.
The majority of the second day of testimony from Homeland Security Special Investigation Agent Jared DerYeghiayan continued setting the groundwork for the case, explaining in-depth many concepts central to Silk Road. US Attorney Serrin Turner's questioning was so thorough it bordered on tedious for the more tech-savvy observer, asking DerYeghiayan to explain 'wiki,' 'internet chat,' and 'add buddy.'
There's a distinct knowledge gap between what an average juror or judge can be expected to already know and the intricacies of modern cybercrime. This is true of any legal case, of course. In any courtroom there are terms, specifics, and details that the lawyers have to walk the jury through in order to make their case. But when it comes to the web, that knowledge gap becomes even wider.
"As a lawyer and as a judge, you have to become an expert in whatever each case happens to be about," explained Nate Cardozo, the staff attorney for the Electronic Frontier Foundation, a non-profit that provides legal assistance and expertise in digital rights court cases.
"That said, it is definitely harder, especially for judges in an older generation who didn't grow up with computers, who didn't grow up with the internet, to understand things like Tor. Even a millennial who has taken computer science courses won't necessarily understand Tor on first explanation."
It's not unexpected, then, that the prosecution in this case would be so careful to make sure the jury understood the terms being used. Many of the jurors might not have even heard of Silk Road until the trial began. So how do lawyers bridge that gap without having to give a master class on the deepest reaches of the web?
"The lawyers have to explain the technology so the jury can get it and it's up to the adversaries to make clear what is important for them to know," Orin Kerr, a law professor at George Washington University, told me. "They don't need to know everything."
If a technical detail isn't pertinent to the argument, there's no need to labor it with the jury, he said. In that way, even the most complicated cybercrimes aren't any different from a more mundane case.
"I really don't think it's that different," he said. "All of the jurors will have used the internet and you just explain by analogy. They all use email and surf the web and you build from that to more technical points. It's not easy but in working with a jury it's a common dynamic."
But this knowledge gap can open the door to dicey legal arguments. Last year, Kerr helped successfully appeal a case against Andrew "weev" Auernheimer, an internet troll sent to jail after he was accused of violating the Computer Fraud and Abuse Act. Auernheimer had gained access to private email addresses after taking advantage of a security loophole he found on AT&T's website. During the appeal process, the prosecution's argument pivoted largely on not explaining the technological aspects of his actions.
"He had to download the entire iOS system on his computer, he had to decrypt it, he had to do all of these things I don't even understand," Assistant US Attorney Glenn Moramarco argued.
The Third District ultimately granted weev's appeal on the basis of an improper venue, but didn't weigh in on the legality of his actions.
To cast aspersions on the dark web as something terrible shows that the prosecutor may be trying to exploit that lack of understanding
Cardozo pointed out this knowledge gap can also be exploited by lawyers to bolster their arguments.
"We saw the prosecutor's opening statement in Ulbricht's case talk a lot about the 'dark web' and using terminology like that. Tor is a US Navy project. This isn't something that's come out of the underbelly of society. Tor is something that people around the world use every day for very innocent purposes," Cardozo told me. "The Silk Road may not have been one of those innocent purposes, but to cast aspersions on the dark web as something terrible shows that the prosecutor may be trying to exploit that lack of understanding."
And this lack of understanding wreaks havoc at the Supreme Court as well. Last year, SCOTUS ruled that Aereo, a digital video start-up, was in violation of the copyrights of the country's biggest broadcasters. But before the justices could deliberate, they had to spend a great deal of time trying to understand what in Sam Hill Aereo even was. And SCOTUS is currently deliberating on whether or not death threats made on Facebook are illegal, despite the fact most of the judges don't actually use the site themselves.
The good news is that SCOTUS takes a long time and asks a lot of seemingly-silly questions to make sure it understands an issue before throwing down a verdict. And in lower courts, we have expert witnesses who are called upon to give their objective opinion and enlighten the courtroom on a given topic, meaning we don't need to rely on lawyers to provide all the information in a case.
Still, as hacking and cybercrimes become more prolific and lawmakers aim to create far-reaching, blanket cybersecurity laws, these situation will become more and more common. As we move into the next frontier of tracking and criminalizing our online activity, the tension between the courtroom and technoliteracy will only increase.