Kindly Shut The E-Fuck Up

I've got a new post with some of my favorite advice — now in e-edition! — over at Fault Lines.

Last 5 posts by Ken White

Comments

  1. Jackson says

    Wait, you mean when I post comments here I am not speaking directly to Ken and other people can read them!?

    There can be only one conclusion: the police are doing RICO when they read my stuff online.

  2. arity says

    Let's say you precede your ill-advised Reddit post with something like "I was accused of something like this but what if, purely hypothetically, the incident occurred as follows:" and then you describe the "purely hypothetical" scenario, periodically asserting that any particular detail is purely hypothetical.

    Would that help any? Or have you still screwed yourself?

  3. Brian Kemp says

    @arity

    >"Or have you still screwed yourself?"

    Yes, most likely. If you leave enough detail that allows a reasonable person to believe you were there or performed the action.

    Couching your statement with "allegedly" won't help matters; neither will "asking for a friend"

  4. Dumb kid in San Diego says

    But, but, but…. isn't it an invasion of my privacy or a violation of my constitutional rights or something like that for the police to read my public posts on web sites without my permission? What about my right to free speech?

  5. Daniel Weber says

    There are very few tricks. Among nerd-type people (myself in that category), there is this strong feeling that you can be like Captain Kirk and talk the computer to death if you can, say, show that the law is inconsistent in some way (of course it is!) or chant some magic phrase before doing an otherwise illegal act.

    In reality, the legal system has been dealing with smart alecks for centuries and has seen all these tricks before.

    If you confess to a crime, even saying "say I did this hypothetical," someone could figure out it was you and subpoena information. Your only hope is to make the post so vague that people familiar with the case and searching for information about it won't find it.

  6. Troutwaxer says

    Assuming that you absolutely HAD TO post your issues with criminal law online, (not something that would happen in any real-life scenario I can imagine) I think the only way to get away with communicating online would be to quote directly from the charging document(s,) with the result that the only text which makes it online was composed by the charging officer or the prosecutor. This probably has too many limitations – you can't tell your own side of the story, for example – to be useful, but it would probably protective of someone saying, "You confessed online."

    My question for Ken would be this: Are there automated tools scanning the web and attempting to link up social media "confessions" with existing cases? Because that would be scary!

    To complete the ritual, IANAL. Amen.

  7. John Willkie says

    The quoted text below might be the jokings of a troll, but as a non-dumb, non-kid in San Diego, I'd say that your right to free speech is also the right to remain silent, and Ken's all-too-obvious advice might be directly for you, 'dumb."

    When we are arrested and given our Miranda rights, that's so that even the dumbest of us will know that "remaining silent is a good idea for those guilty." And, we're all guilty of something, no? Perhaps not guilty of pointing a BB gun at an aircraft, but …

    We all have an "almost constitutional" right to privacy, but pointing a BB gun outdoors at an aircraft is something done in public. We have a right to talk about our foolishness, and even ask questions about it in online forums, and those with the guns and badges have just as much right to read what someone has written, and if they deduce probable cause that a crime was involved in the underlying facts, they can "act accordingly" and use their lawful investigative techniques. Law types don't need your (or a court's) permission to read, listen and watch that which you have freely put out there.

    Chicago police for more than a few years have been bragging (while the murder rate continues to go up) how dumb criminals are in committing crime and then bragging about the crimes online. Sure, the criminals use "coded" words, but even cops can decode and match up against open cases; they only have to explain (possibly accurately) what the coded expressions mean to the jury.

    Dumb kid in San Diego says:
    "But, but, but…. isn't it an invasion of my privacy or a violation of my constitutional rights or something like that for the police to read my public posts on web sites without my permission? What about my right to free speech?"

  8. Tom M says

    Would that help any? Or have you still screwed yourself?

    That's like a "SWIM" commenter on Drug forums… and yeah, you have, I think.

  9. Leo Marvin says

    According to a legal secretary my Pilates instructor sells weed to, if you mail yourself a notarized letter designating the Internet as your lawyer, everything you say online is privileged.

  10. Wesley says

    This is literally the most frustrating aspect of being a criminal defense lawyer. My only (slim) consolation is that criminal suspects being dumb is job security for me, because there will always be plenty more criminal defendants.

    Coincidentally, I have to go yell at an incarcerated client tomorrow for writing the JUDGE from jail (who then forwarded it to me and the prosecutor). What the fuck, man.

  11. nlp says

    When you look at the actual question the kid had, he could have asked for help without giving away any details at all.

    "I live in off-campus housing with some friends. We did something stupid and the police came. Several of us have been called in to talk to people at the university. Based on what I am hearing, I have a couple of questions. Can the college suspend/expel us for something that happened off campus, and can the police make us pay for the costs of their investigation?"

    (Answers to both questions: Yes).

    College kids do enough stupid things that warrant expulsion that this could have happened anywhere in the country. But he felt he had to fill in the details, so now this could be picked up by police and/or prosecutors. Even the neighbors or friends of the neighbors might be aware of it and pass it along.

    And he can consider himself lucky. In some places pointing a BB gun at the police is enough to cause them to shoot to kill.

  12. pennywit says

    Obviously, posting your stuff publicly on /r/legaladvice is dumb and you have no expectation of privacy. But do you think a party could argue that if he sends details to a lawyer-matching service that then sends his case info to potential attorneys, his communications should therefore qualify for Attorney-Client and/or Work Product privilege because he was seeking legal advice and prepared the communication in anticipation of litigation?

    I'm wondering how this compares to pro bono clinics and nonprofits that refer cases to attorneys. If you go to XYZ Nonprofit and spill the details of your situation to a caseworker who then tries to match you with an attorney, your communication with the caseworker is typically considered privileged and non-discoverable (IIRC). Of course, in most of those clinics and nonprofits, the caseworker is being supervised by a competent, licensed attorney …

  13. En Passant says

    pennywit says September 15, 2016 at 8:09 am:

    Obviously, posting your stuff publicly on /r/legaladvice is dumb and you have no expectation of privacy. But do you think a party could argue that if he sends details to a lawyer-matching service that then sends his case info to potential attorneys, his communications should therefore qualify for Attorney-Client and/or Work Product privilege because he was seeking legal advice and prepared the communication in anticipation of litigation?

    I don't know who you're asking, whether Ken or general commentariat. I'm General Commentariat, or Private Party, unrelated to anybody at Popehat including Ken. I like your question. Here's my $.02 opinion.

    If a "lawyer-matching service" is not bound by attorney-client non-disclosure ethical rules and protected by attorney-client privilege, and does not disclose that fact (preferably many times in large boldface print) to any person who uses the service, then that blows a hole in the Bill of Rights wider than the Great Plains and deeper than the Marianas Trench.

    Any government agency could set up a fictitious "lawyer-matching service" soliciting information from people seeking a lawyer, by pretending to be a lawyer while soliciting confessions to crimes. Even if someone looking for a lawyer has committed no crime, they could be fooled by such a "service" into confessing to a crime they did not commit.

    Police are permitted wide latitude to lie to criminal suspects or to anybody else except courts when investigating crimes. But they are not AFAIK permitted to pose as defense attorneys and solicit confessions by saying they are bound by attorney rules of professional ethics. I still have some confidence that even the most prosecution friendly court would draw a line at admitting such a "confession" into evidence.

    Otherwise, if police can pretend to be defense attorneys, why have courts at all?

    Permitting a "lawyer-matching service" to not disclose the fact that they are not bound by attorney professional ethics and protected by attorney-client privilege, would open the floodgates to government agents soliciting criminal confessions by pretending to be defense attorneys.

  14. dramamoose says

    I walked through the process on the site mentioned by Ken, and came across a couple of things, which are somewhat contradictory. For one, on their 'how legalmatch works', they mention 'Then tell us about your legal issue. Our case presentation questions are designed by attorneys to guide you through the process, just as a lawyer would during an initial consultation.'

    That could very reasonably be interpreted by a less-informed individual to imply that your communications are covered by the same rights that an initial consultation would, which I believe (IANAL) are generally considered to fall under attorney-client privilege.

    However, when you go through the process, you get asked questions merely about the charge; the words allegedly are throughout, and the info could all be grabbed from the prosecutor's documents. That's probably all fine and good; it'd be hard to argue that you're confessing to anything when you're merely saying what you're being charged with. Then you get to what I see as being the biggest liability, the free-form text field. This has two notifications on it, in the same color/font/size as the rest of the screen: "Do NOT make any admissions or confessions" and "Do NOT include information that may be incriminating or confidential". This is helpful, I suppose, and better than nothing, but it's far less than the 'THIS WILL BE PUBLIC INFORMATION AND CAN BE SEEN BY PROSECUTORS AND MAY BE USABLE AS EVIDENCE AGAINST YOU' red flashing headline that I agree they need to have.

  15. says

    This has two notifications on it, in the same color/font/size as the rest of the screen: "Do NOT make any admissions or confessions" and "Do NOT include information that may be incriminating or confidential".

    The problem is that potential clients often have no idea what information is neutral/benign and what information is incriminating.

  16. AH says

    @Ken White: Which is exactly why they need to consult an attorney! They could go a legal matching site to connect them up to one who can advise them…

    you spin me right round baby
    right round like a record baby
    right round round round

  17. Kat Fud says

    In the 'STFU' category, the recent debacle of Brock Turner illustrates the point well.

    At 6AM in the police station, the morning after he was caught by passers-by, he answered police questions. He admitted to the various acts he was later charged with. Had he kept his mouth shut, there's simply no way a number of those charges could have been made. His victim remembered nothing. Nobody actually saw his wang out.

    The vast majority of the case against Turner hinged on his own admissions at 6AM. He was probably still drunk; I'm betting that the police made a big show of saying he was NOT drunk so they could be sure his statement against himself stuck. He MIGHT have received an assault charge, but the rape charge was founded entirely on his own statements and admissions. His attorney might have been able to plea down the assault charge, maybe he'd get suspended for a semester, but Stanford would not have kicked him out for simple assault. If they did that, they'd have to kick out football players too.

    Turner's morning-after statement should be required reading in every frat house across the country. If you're caught, STFU. Wait for your lawyer. Cops can lie to you, but not to your lawyer. You're not getting out. You're not going to make anything easier for yourself. Just STFU.

    Unfortunately for every guilty bastard like Turner justifying police tactics, there are likely plenty of folks who have done nothing wrong but will be treated similarly. They too will face the stigma of keeping silent, but at least their attorneys will have something to work with.

  18. Trent says

    Very worth it. He belabors the point with a very good example of how what you think is innocent and irrelevant information can be turned around to prove things you don't even realize. And with it in your own words you'll hang yourself.

    The biggest thing people have a hard time remembering is that the police aren't there to help you no matter what they tell you. They are there to collect evidence that could put you in jail. You need an advocate that knows the game, knows the evidence they have and how things you tell them can be turned around.

  19. Sinij says

    Very good advice. Online anonymity, even when done right, would not withstand subpoenas and court orders. In today's society that tolerates invasive surveillance and all-encompassing data collection your identity is not hidden from The Man.

  20. Sinij says

    @Troutwaxer "I think the only way to get away with communicating online "

    Just to give you a general idea what it takes. You need to purchase, using cash, a burner WiFi-capable device without getting tagged or linked to such purchase. Then you need to create throw-away identity online not linked in any way to your existing identities. Then you need to find open WiFi, use TOR/VPN to post and check replies. Then you need to destroy and dispose of the device you used. At each stage of this process you can mess up and create incriminating evidence. For example, you could Google "how to buy a burner phone" from your home computer, or you could get your mug recorded by in-store security camera while purchasing one. All of this is even before you get into "what", where you could identify yourself by disclosing information that could only be known by you.

  21. John Willkie says

    Some extensions and concerns about the approach Sinji outlined.

    Buying the burner phone is something you can do the next time you visit a country that hasn't signed the Mutual Law Enforcement Assistance treaty. You could also look into buying a burner in the informal economy; street hawkers, swap meets/flea markets, under canopies in parking lots; places where there is no expectation of privacy and no way t reasonably surveil.

    You can never use the burner to communicate with any person you know, or business you deal with, regardless of whether you login or not. No posting to message boards, etc. After a few uses, you throw the phone away and start using a new burner.

    Tor might be "some" protection, but only if you aren't a high-value target. Last year or so, probably thanks to Carneige-Mellon, child pornmongers were busted because the FBI asked C-M to create a whole army of compromised exit nodes, and there is no way to know if any or all exit nodes are "cooperating." So, you can only send outgoing communications, and the protocols cannot be based on TCP/IP, since even those "Ack" messages you get back can assist in identifying you. UDP/IP only.

    None of this is a problem or is necessary if you just "remain silent."

    I'm a full believer in cooperating with the authorities all the time, aside from those times that I might have something to hide that is within the statute of limitations, and which might be within the jurisdiction of that particular agency. So, mostly, if not always, I provide useful information about things I've seen, heard or know that they ask me about and which seem hinky.

    If I have any legal concerns, I have a confidential discussion with an attorney at law.

  22. Troutwaxer says

    @ Sinaj,

    You're right, of course, but I wasn't really talking about the mechanics of basic computer security so much as how to avoid the legal issue of someone saying, "You confessed online."

    You avoid this problem by doing nothing but quoting from the charging document, and never using your own wording at all. Then hopefully the conversation goes like this:

    "You confessed online."

    "That's not correct. I quoted from the charging document, which you composed it its entirety."

    Once again, both IANAL, and I can't imagine a real-world scenario where anyone would need to post online for legal advice.

    Perhaps you an answer my other question above: "Are there automated tools scanning the web and attempting to link up social media "confessions" with existing cases?"

  23. Amber says

    >Are there automated tools scanning the web and attempting to link up social media "confessions" with existing cases? Because that would be scary!

    A couple of years ago, the local newspaper ran story in which it was claimed that during testimony in a case, the prosecutor's office said that their software scraped the web, linking online confessions to cases that they were investigating.

  24. Encinal says

    @Kat Fud

    At 6AM in the police station, the morning after he was caught by passers-by, he answered police questions. He admitted to the various acts he was later charged with.

    My understanding is that he claimed that it was consensual, so he did not admit to all the elements of the crime.

    Cops can lie to you, but not to your lawyer.

    I'm quite skeptical about that one.

  25. andrews says

    Shut up

    But do it loudly. If you invoke your right to remain silent by, say, remaining silent, then that can be used against you. Salinas v. Texas, 570 U.S. 000 (13-Jun-2013). So you may be better off announcing, at every opportunity, that you are remaining silent.

  26. tehy says

    expert legal advice on how to obtain burner under the radar:

    step 1: don timmy turner mask
    step 2: show up at desiigners house. if you smell weed fume tell him you're here and you been wishin

    easy pickings.

  27. AH says

    @Encinal

    Don't be. 26:43 is where the cop starts his side, and agrees with everything the defence attorney says. Frankly this video should be part of a required civic class required for graduating HS (or maybe 8th grade).

    The only thing you should EVER say to a cop is the following:
    "I am invoking my right to remain silent and do not consent to a search."

  28. Blackwing1 says

    Mr. White:

    I was not aware of the ramifications of the "Salinas" SCOTUS decision. In my CCW training (now taken three times) our instructors always told us that we needed to repeat only these four things to the police who will inevitably arrest you regardless of the circumstances:

    – "I was attacked."
    – "There is the evidence and there are the witnesses" (to avoid having them disappear).
    – "I will sign a complaint " (but if they want it immediately, go right to the next point).
    – "I do NOT consent to a search" (they'll search you anyway) and I want to speak to an attorney".

    After stating these things they all emphasized that we should simply SHUT UP, make our phone call to an attorney, and wait for them to arrive, regardless of how friendly the LEO's appear to be.

    Question: After stating that you will only speak to the police after requesting to speak to your attorney does this then qualify as a Fifth Amendment claim to silence under "Salinas" (without explicitly stating that you are remaining silent to avoid self-incrimination under the 5th)?

  29. Mike Schilling says

    "And what's the best thing for me to do, communications-wise?" his client asked.

    "Shut up", he explained.

  30. Kevin Kirkpatrick says

    Would it make sense for the "generic" law-abiding/tax-paying citizen to just carry a card in his or her wallet, with the simple statement "I choose to exercise my right to remain silent. I do not consent to searches of my person or property." printed on it? Furthermore, would it be a wise practice to
    1) Hand this card to any LEO who speaks to them on any occasion (whether a traffic stop, a sobriety checkpoint, or even just a friendly, "How's it going?" while strolling through the park)
    2) Act exactly in accordance to the statement: make no eye contact and answer no questions; literally remain completely silent (while obeying all lawful orders – e.g. providing drivers license during a traffic stop in states which require such).

    For many citizens, no encounter with an officer is going to be much more engaging than rolling a stop sign or driving a bit over the posted speed limit. And for most such citizens, such encounters will have a "worst case" of waiting for the officer to check the license and plates, find nothing amiss, and either issue a citation or a warning. Would this alternate approach run a heightened risk of the driver being subjected to more onerous and burdensome experiences? Is it likely that "bad cops" would feel more inclined to "punish" such citizens with excessive delays, i.e. "*Sniff* *Sniff*… What's that smell? Guess what Mr. Silent. You and I are going to wait 20 more minutes for the K-9 unit."

    As a related question, after asserting ones choice to remain silent, can a citizen ignore all questions from an officer other than obeying lawful orders? Can any question be treated as an "ignorable question"? Can, "Could you please step out of the car?" be ignored?

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