Miranda's Defense - Again

Non-Juan reports on the Senate Judiciary memos imbroglio. Non-Juan reports Ira Winkler's take on matters. Winkler's views may be summed up (I hope fairly) as: There is nothing here because there was no security. (You should go to Volokh for more details.) In a lovely analogy, Winkler says "What happened in the Senate Judiciary Committee was the electronic equivalent of leaving the files in the Capitol rotunda." Unfortunately, not quite.

So far, the evidence suggests that the Democrats did not know the files were open. They thought the files were in a locked cabinet, so to speak. Turns out they were wrong, and it may well be that they were negligent for so thinking. But it was not like leaving files in the Rotunda. (POsting them is like leaving them in the Rotunda.)

There is a persistent error here - that the world of data has no relation to the rest of the world. Because something is not locked does not mean that it is free for the taking. What Miranda did is like entering a house that is unlocked and taking files lying on a table in the house.

It will be a great help, however, when the investigation is completed and we have some reliable information about the actual status of the files, information concerning the security of the files, and information concerning responsibility for the security.

(I have discussed these issues at more length elsewhere: here and here and here.

Update:
Juan Non notes that he previously mentioned that the Democratic staff was told of the absence of security. I did not mean to dispute either that he said that or that it is true. (In fact, I do recall him noting that point some time ago.) I too recall reading that some on the Republican staff claim to have told the appropriate person(s) on the Democratic staff of the lapse. One of the reasons I would like the results of the investigation is to have clearer information on that. It may be that someone was told and that person had no understanding of the information. (I have had opposing counsel try that game by calling paralegals or secretaries.) On the other hand, maybe the rigth person was told. It may be gross negligence by the Democrats. I am withholding judgment on that aspect until the report is made public.

It does not matter to some of my assessment. I can warn someone to lock their car, but even if they don't taking the car is still wrong. The Republican staff still had to enter and open the file and copy it. Thus, I would not use the wallet in the Rotunda analogy. It is more like leaving the wallet in an unsecured drawer in a shared space. I do not suggest that anyone "broke into" the files, and my analysis presumes there was no breaking or hacking.

For those interested, Mr. Miranda has published his own account and defense in the February 22, 2004 edition of the Salt Lake Tribune (you will need to pay for access).

Comments

[LizardBreath]

The Republican defense that they informed someone that they could access Democratic memos, but then went merrily on reading them when the security hole wasn't fixed (a) seems like an odd thing to believe based on the uncorroborated and undetailed assertion of one side to the controversy and (b) doesn't make a lot of sense.

What are we supposed to think happened? First, a Republican staffer informed a Democrat in a position to correct the problem that the security hole existed and then: the Democrat did nothing because he thought the Republican staffer was lying, and there was no such hole? the Democrat did nothing out of indifference to the existence of the hole, believing that it was all right that the Republicans were able to access the memos? the Democrat tried to have the problem fixed and failed?

If the first, the Republicans remain culpable: notification of the problem in a form that allowed the person notified to disbelieve it (that is "Ha ha, you guys are so screwed, we can read all your files" said in a joking tone, rather than "Come over here to my computer -- look, even logged in as me, Republican Staffer, I can open all of your files") is not actual notification, in the same sense that telling the janitor, or someone else without understanding of the problem, is not notification.

If the second, indifference to or approval of the existence of the security hole on the Democratic staffer's part, the Republicans remain culpable. Such an attitude is not compatible with good-faith service as a Democratic staffer: the damaging results are too obvious. Such a staffer would be actively aiding the Republicans in their continued access to Democratic documents -- esentially acting as a mole in the Democratic offices. Stealing the documents with the aid of a mole is no more ethically allowable than accessing them through an unannounced security hole.

Finally, if the Democrats attempted to fix the hole and failed: this would suggest that its existence was not gross negligence on the Democrats' part, but a real problem, whether maliciously created or not, with the computer system, and thus the "they left them out in plain view" defense really isn't available.

Without some more details, there just is no way that the Republican assertion that they announced the problem is worthy of serious consideration: it just doesn't make sense.

[T. Gracchus]

Initial news reports on the redacted Seargent at Arms' Report, do not support the claim that the Republican staff had informed the Democratic staff of the security problems. LizardBreath therefore appears to have it right, at least in significant part. It seemed possible, but a little unlikely. Possible because such things do happen and more frequently than one would like. In any event, one hopes more information will be forthcoming.

[Term Paper]

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[Puma Shoes]

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[vibram five fingers]

If the first, the Republicans remain culpable: notification of the problem in a form that allowed the person notified to disbelieve it (that is "Ha ha, you guys are so screwed

[vibram five fingers]

Turns out they were wrong, and it may well be that they were negligent for so thinking.