Should you go to prison just for lying?

I tell my child, as we all tell our children, that lying is wrong. A lot of things are wrong. But does that mean you should go to federal prison? Guess what: that is exactly what can happen if you lie in a federal investigation. What’s more, you might not even know that there’s an investigation! Today’s Wall Street Journal has as the next installment in its serious of the criminalization of America the woeful tale of marine biologist Nancy Black, is facing a $100,000 legal bill and criminal charges for lying, when she didn’t know there was an investigation, and she didn’t believe she was either lying or misleading anyone. In fact she thought she was cooperating with someone from the National Oceanic and Atmospheric Administration (NOAA).

How could this be? Here is what 18 USC 1001 has to say:

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.

The breadth of this law is staggering, and the results could be perverse. While the jury should have a good view of this, why would anyone not assert their 5th amendment rights when talking to anyone from the federal government? After all, who knows if there’s an investigation? Want to end up with a $100,000 legal bill finding out?

This is a law that prosecutors under administrations of both parties have used. So what should it say? Perhaps there needs to be a tie to a conviction of an actual crime we care about. Perhaps the standard otherwise needs to be such that only sworn statements are applicable, in which case isn’t the existing purgery law enough? And it has the added benefit of putting someone on notice that they could be held accountable for lying.

Pardons in the Kingdom of Mississippi

I’m a pretty liberal guy. I wear the label proudly. To me “liberal” means, amongst many other things, belief in the system of checks and balances. Today, the Mississippi Supreme Court abrogated their responsibility as part of that system in that state.

The Press is widely reporting that the Mississippi Supreme Court has refused to overturn nearly 200 pardons issued by former Governor Haley Barbour on his way out of town. At issue is a provision in Article 5 §124 of the Mississippi State Constitution that says the following:

but no pardon shall be granted before conviction; and in cases of felony, after conviction no pardon shall be granted until the applicant therefor shall have published for thirty days, in some newspaper in the county where the crime was committed, and in case there be no newspaper published in said county, then in an adjoining county, his petition for pardon, setting forth therein the reasons why such pardon should be granted.

Let’s put aside the consequences to the convicts and to the families of those who were harmed by them. While I don’t like the provision, it’s there. We can even argue about what it means. Who should ultimately decide? I would think the Mississippi Supreme Court. Apparently not. Here is what Chief Justice William L. Waller, Jr. had to say in a 6-3 decision:

Certainly, no one would argue that a court could investigate and determine the wisdom or propriety of a governor’s acts, including pardons. However, the constitutionality of a governor’s acts, including pardons, is a question which the court must determine.

As it happens, my last blog entry talked about how former Speaker of the House Newt Gingrich challenged the notion of Marbury v. Madison, where they reaffirmed their responsibility and authority to be the final judges on the meaning of the Constitution. That logic, that separates presidents from kings and queens apparently does not apply in Mississippi.

There are some missing bits of information. How could the court have veered so far from this cornerstone of American jurisprudence? What other provisions of the Constitution would they choose not to enforce? Why, for instance, are they receiving a paycheck?

Like or Dislike: Foyles War

To blow off steam after what can be a very long day, Christine and I will occasionally watch TV, like most of the rest of the world. Most of what we watch is on DVD, and my current favorite is a show called Foyle’s War, created by Anthony Horowitz. It’s a combination of murder mystery and historical fiction, at the outset of World War II. Played by veteran Michael Kitchen, Chief Detective Inspector Foyle covers the beat of Hastings, an English coastal town. Kitchen depicts our hero as a stiff-upper-lipped classic English gentleman, with a stick so far up his posterior, you wonder how he walks.

What I like about the show is that it really gives you a feel for the sorts of hardships the British endured during the war, and how they endured them. Families were torn apart, there was very limited food to eat, there were prisoners of war, bombings, land confiscations by the government, the invasion of the American troops. And mixed into all of this, a murder or two.

While there’s occasional blood and guts, there are no DNA labs, no fancy police cars, or for that matter, fancy getaway cars. Just a game of wit to get you through.

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Get mad? Get Even? Or get up and running again?

When a system is broken into, the management often has a choice to make: should they take some time to try to figure out who was behind the break-in, should they bring in the police, or should they just clean up the mess that they find and move on. This is the choice that the City of Norfolk faced when a time bomb clobbered 784 systems, according to this blog. Debugging and understanding how a break-in occurred is a bit of a black art unto itself, requiring a substantial amount of expertise that focuses on the innards of Windows, and it requires time for the experts to track back what they think the source of the problem is, and even then the ability to do a trace may not be possible. For one, it depends on what sort of forensic evidence can be found within logs, whether those logs themselves have been tampered with, and what sort of backups were taken of the systems involved.

Here’s the problem with not trying to trace back: the miscreant who screwed you the first time can do the same thing again, using the precise same attack vector. At the very least it helps to have relationships with your security vendor to be able to report the problem, but as defenses get more complex, our continuing game of Cat and Mouse demands that so do the attacks. An initial attack vector might itself lead to the use of secondary means to attack. For instance, probing attacks work very poorly against a walled off Intranet, and in fact can be a means to alert The Guys In White Hats that the probing system has been broken into. However, the likelihood of that happening from within the Intranet is smaller. What’s more, as white collar criminal investigators know, one cannot rule out the possibility that someone on the inside will in fact have gotten things going.

This supports the whole notion of what Cisco calls Borderless Networking. That’s a marketing mouthful for a concept that Steve Bellovin articulated many many years ago, which says that bottleneck firewalls are going to need to give way to more sophisticated forms of defense on devices themselves.

A combination of good backups and logging to secure systems might have helped. Logs give some notion as to who did what when, assuming that you are logging the right things. Backups provide you a means to preserve state. This works in three dimensions: you can, perhaps even incrementally, look back into the history of a system for forensic purposes, you can preserve a crime scene through a very low level backup, and you can get back to a known good state.

What is a Cruel and Unusual Punishment for Youths?

Scales of Justice

[Corrected information, thanks to Ken Durazzo.]

The punishment should fit the crime.

This is the general basis for the Eighth Amendment, and it’s one that has been largely ignored in the United States. Now the New York Times reports on a case that the Supreme Court has decided to hear, regarding people convicted as youths who are serving life sentences. As the Times mentions, all 100 such people in the world live in the United States, and of those, 77 are in Florida. One case involves Terrance Graham who committed armed burglary at the age of 16. In another instance, a child was sent to prison for life for rape at the age of 13. That’s a terrible offense, but is it worth a life term?

It is often the case that the pendulum starts swinging the other way, when absurd cases such as Graham’s comes to the fore. Here now is an opportunity for the Supreme Court to challenge the state on whether the punishment suits the crime. Explain to me the circumstances under which a child should go to jail for life for robbery. I can’t fathom such a situation. I hope the Supreme Court won’t either, in which case, we may see some very interesting new doctrine on the subject in the next year.