
Web Activity Used in Court to Portray State of Mind - id
https://www.schneier.com/blog/archives/2014/07/web_activity_us.html
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rayiner
In this case, everything revolves around a fact that cannot be directly
measured: the father's state of mind when he left his child in the hot car.
Depending on that fact, the exact same physical acts could be anything from
premeditated murder to negligent homicide to no crime at all.

State of mind has always been proven through this sort of circumstantial
evidence. In the pre-internet days, the sort of evidence the police would've
used would be his comments to neighbors and others prior to the incident. If
he had asked a veterinarian about how long it would take to kill an animal in
a hot car, that sort of evidence would be admitted as evidence of his state of
mind. A WebMD search should be treated no differently. It's ridiculous to say
that web searches aren't highly relevant to a person's state of mind. Heck,
that's the foundation of Google's whole business model!

> This case aside, is there anyone reading this whose e-mails, text messages,
> and web searches couldn't be cherry-picked to portray any state of mind a
> prosecutor might want to portray?

Schneier ignores the temporal dimension. The prosecutors can't just cherry-
pick some text messages and web searches to portray a particular state of
mind. They have to pick records that can be strung together into a coherent
narrative that is consistent with the timing of the internet activity and the
timing of the crime.

~~~
barrkel
_They have to pick records that can be strung together into a coherent
narrative that is consistent with the timing of the internet activity and the
timing of the crime._

This idea is so bad that it has a specific term: confirmation bias.

If you have enough facts, you can cherry-pick them to suit almost any
coherent, consistent narrative. Web browsing especially delivers enormous
amounts of content from which to cherry-pick to suit a narrative.

IMO storytelling, and wholesale embracement of confirmation bias, is probably
the biggest weakness of adversarial justice. I think it turns justice into a
game of who's the better storyteller.

~~~
rayiner
Confirmation bias is defined as (OED): "The tendency to interpret new evidence
as confirmation of one’s existing beliefs or theories."

The adversarial justice system is expressly designed to avoid confirmation
bias. That's the whole point of the "adversarial" part. While the prosecution
might be prone to selectively interpreting the facts to confirm its own
beliefs, the defense counsel is tasked with poking holes in that
interpretation. That's why defense counsel has the independent opportunity to
present evidence, and to cross-examine the prosecution's witnesses to poke
holes in their story.

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taeric
I'm not seeing the problem here. If police instead found a stack of books
inside covering the same material, would anyone object? What about a series of
entries in a journal?

Now, if this was something much more abstract such as three of the past
unknown books they have read in the past unknown years involved accidents of
this type, that would be one thing. But this? Doesn't seem that far fetched.

Edit: to clarify further. They had probable cause already. The suspect was
acting ridiculously suspicious. The web browser behavior is just additional
data, not the sole data.

~~~
waterlesscloud
My friends and I have always joked that if I'm ever on trial, my book
collection will make me automatically guilty of whatever it is. Pretty sure
you could make a convincing argument I'm behind Enron, Clinton's impeachment,
and the fall of Iraq based on my book collection. Watergate and JFK's
assassination too, despite my age.

A friend was writing a technothriller screenplay and I did extensive research
on nuclear weapons manufacture for him. I told him I hoped he appreciated how
much I was adding to my file for his sake. I was half-kidding.

I dunno. I get that this sort of thing is useful in court, but people are
naturally curious about a lot of things. It doesn't always mean they're
actually planning to do it all...

~~~
taeric
There is a vast difference between using someone's curiosities to believe they
are guilty of a crime, and investigating the individuals involved with a
potential crime to see if one existed.

That is, if they had just picked up the joining of everyone that had searched
for the details of child death in a car with those that had had a child death,
that would be different. In this case, they had suspicions already, and are
stitching together details from computer history as well as cell records and
such.

This is all to say, when potential crimes happen, I personally think
investigating them is not a terrible thing. Instant vilification is, but that
is a different topic all together. Same for basically fishing for reasons of
suspicion.

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jimmaswell
What relevance does the sexting have to the trial?

~~~
Natsu
I assume they plan to use it to argue that he wasn't very remorseful. When
people are really depressed or sad, they often avoid anything pleasurable.

~~~
danso
That reminds me of Rule 4 in the "Homicide Lexicon", in David Simon's
fantastic non-fiction book, "Homicide", of the Baltimore homicide squad:

"An innocent man left alone in an interrogation room will remain fully awake,
rubbing his eyes, staring at the cubicle walls and scratching himself in dark,
forbidden places. A guilty man left alone in an interrogation room goes to
sleep."

[http://en.wikipedia.org/wiki/Homicide:_A_Year_on_the_Killing...](http://en.wikipedia.org/wiki/Homicide:_A_Year_on_the_Killing_Streets)

