So I’m getting caught up in the curious case of Gottfrid Svartholm – we all know him as one of the heroes of the Pirate Bay, but he’s currently facing some more serious charges involving hacking & Denmark. Getting the details is challenging if you don’t speak Danish, but word is trickling out through the English world (and hey, here’s me doing my part!) Torrent Freak has the latest highlights, and for a case that’s taken some, bizarre turns, they don’t disappoint – there’s plenty to be outraged, amused, and honestly baffled by. But it’s one point, a (hopefully) small and incidental point, that’s caught my eye: the prosecution’s use of tweets in the courtroom.
On Friday, the Danish prosecutor tried to discredit witness Jacob Appelbaum. Although he is one of the top security experts in the world and was called in for a similar case in Sweden, the prosecution argued against his reliability because he was, they accused, a friend of Gottfrid’s.
The problem? The accusation was false and based on a totally misinterpreted tweet:
“[The Prosecutor] showed a picture of Appelbaum’s Twitter profile, where Appelbaum retweeted an article from TorrentFreak written by Warg’s friend Niklas Femerstrand.
The article is titled “Sweden has kidnapped my friend Anakata” and refers to the arrest of Warg in Cambodia.
“Here writes Appelbaum… he is your friend,” [the prosecutor] said.”
The lawyer is referring to a well-known article written by Niklas Femerstrand about Anakata being weirdly and suddenly spirited away from his home in Cambodia. Jacob Appelbaum, @ioerror on Twitter, apparently retweeted the link (along with probably hundreds of others), and the prosecution took this as a statement of Appelbaum’s friendship and therefore a strike against his witness testimony. As many in the courtroom realized, the prosecutor’s interpretation is hilariously wrong.
@moltke Re-tweets aren't endorsements? Do we really need to say that? Talk about a culture clash.
— Jacob Appelbaum (@ioerror) September 5, 2014
So is this just a stupid mistake? Is it really a scandal that a busy lawyer misread, or misinterpreted a tweet? The prosecutor’s intentions at least were not totally wrong-headed: someone’s BFF is not exactly an unbiased witness. Plus, it’s this guy’s job to question an expert who could destabilize their entire case, like exactly what happened in Sweden.
But though the bumbling lawyer in the courtroom is funny, the implications are concerning.
Reading this and the ensuing buzz on Twitter, I was reminded of an article by Rick Falkvinge, founder of the Pirate Party, from a few years ago warning about what might happen if everything anyone said ever could be used anytime & forever in a court or by anyone ever. The warning was in reference to protecting anonymity and it had nothing to do with tweets, retweets, or hacking in Denmark. But in light of the latest news from court, his warning – of a world in where anyone’s comments anywhere ever could be used, legally, anywhere ever and with dire consequences – is ringing pretty true right about now:
“It would become practically impossible to say… anything remotely challenging,” he says. “At least if you wanted a future.”
The article sums up the chilling effects of taking every shred of people’s speech and using it against them, which is of course a valid concern in and of itself. But the one thing Falkvinge missed is that it’s not just “Anything you say can & will be used against you by anyone ever”, it’s “Anything you say can & will be used against you or anyone else by anyone ever in cases you have nothing to do with, and in which your words are misinterpreted or deliberately mangled.”
The idea that anyone, anywhere could tweet, retweet, or link to something that negatively affects a case that they are not even related to will have terrible, chilling effects.
Already there’s an almost Kafka-level of confusion surrounding exactly how, why, and what tweets are used in the court of law, and it’s sending ripples through the internet. Already, the trial of Gottfrid Svartholm is hinting at the kind of world Falkvinge warned of – a world where someone’s 140 characters can be snatched and projected in a courtroom without their knowledge, without any connection to the case, and with some seriously dubious justification.
Not a good time for this, but can someone pls tell me in what context I was mentioned in the Danish courtroom at Anakata's trial today?
— Asher Wolf (@Asher_Wolf) September 5, 2014
Note that we’re not talking about someone related to a case tweeting evidence, threats, or other relevant material. Neither @Asher_Wolf, nor @ioerror have anything whatsoever to do with these hacking charges, nor are they accused of that. But the danger of prosecutors stretching, far beyond reason, the things they – or any of us – say online without our knowledge or clear justification is real. If anyone’s words, even those not related to the case, could be twisted against not only them but someone they don’t even know, then how can any of us feel comfortable enough to speak freely? Will you still tweet news and opinions when any one of your tweets could be used against the person or the cause you are covering? How can we speak freely if, even when we have nothing to do with the charges at hand, our words are twisted around by however-hilariously bumbling lawyers?
And how can we trust those entrusted with the justice system when they have such a deplorable grasp of the digital world? (The world they are, at least in these hacking cases, trying to bring justice to!) The fact that those prosecuting internet-related crimes are so confused by things like linking to an article is a serious flaw in the modern justice system. (I won’t call out Denmark in particular here, many of our own prosecutors stumble spectacularly around computer legislation like the CFAA & DMCA.)
Let’s hope the judge or jury in Anakata’s case know better. Let’s hope that, this time at least, the things said on Twitter and the misunderstandings thereof are laughed out of court.
But this culture clash, to use Appelbaum’s words, is no laughing matter.
It’s way past time we addressed the disparity between the understanding of the internet in the courtroom and outside of it. And it’s way past time we stopped those who simply do not understand the internet from getting into a courtroom to enforce it’s rules.