Perhaps you've heard of Stacy Snyder.  She was a 25 year old student pursuing a degree in education at Millersville University in Millersville Pennsylvania.  Ms. Snyder has a MySpace page, and on it she had posted a picture of herself attending a Halloween costume party.  She was wearing a T-shirt and a tiny pirate hat on her head, and drinking from a plastic cup.  The caption under the picture said "Drunken Pirate."  As inappropriate pictures go, this one was pretty tame.  I've seen it myself, and if the caption hadn't said "Drunken" you wouldn't have any idea at all what she was drinking, since she didn't look drunk.

Nonetheless she was reprimanded by the Dean of Education at Millersville University based on this picture, and was informed that it was unprofessional and encouraged underage drinking (note that she was not under age at the time the picture was taken.)  She apologized.  But apparently that wasn't good enough.  On the evening before her graduation, she was informed that she would not be receiving a degree in education, and instead received a degree in English.

Just so we're clear, this bright young woman had a perfectly innocent picture of herself drinking from a cup on her MySpace page, with the caption "Drunken Pirate" underneath it, and because of this, her years and expense in college are for nothing and she cannot teach, which is all she ever wanted to do.  Sounds a little harsh to me.  It's not like she was falling down drunk and flashing herself at the camera while a guy poured beer on her.

So now Ms. Snyder is suing the university for $75,000 and her degree in education.  I find myself thinking she deserves both.  Now. 

I served on a jury for a drunk driving case many years ago, what they now call an OUI case (Operating Under the Influence).  Out of the juror pool we lost one potential juror early.  Apparently this juror had been arrested for prostitution at one point in the past and had been acquitted, but both the prosecutor and one of the offficers had been involved in her case, which she felt would taint her opinion.  So the judge dismissed her.  One of the other questions that the pool was asked before the trial began was "If you feel you would be less incined, or more inclined to believe the word of a police officer, simply because he or she is a police officer, you should speak up now."  Point being that would prevent you from dispassionately deliberating on the merits of the evidence alone, instead of who was giving the evidence.

During the case, I became convinced by the defense attorney that the defendant was not actually drunk when she was arrested for DUI.  The officer that had arrested her seemed very young and had only been on the force for a short time, and I became convinced that he was inexperienced.  The other officer, the one who did bookings, seemed a little less than honest.  I found it questionable that he could remember the exact demeanor of a person he had booked months earlier, when his job is booking person after person, day in and day out.  When asked if he felt the defendant was drunk at the time she was booked, he said "yes".  When asked why he said "she had bloodshot eyes, and seemed unsteady on her feet."  When asked if he had testified in a different drunk driving case earlier that same day, he responded "yes".  When asked if his testimony in that case had been, verbatim, "he had bloodshot eyes, and seemed unsteady on his feet" he also responded "yes".  This gave me, and others on the jury, the impression that this guy said the same thing on every case, and basically he was just there to back up the arresting officer.

Finally when it came to the field sobriety test evidence, the defendant had passed most of the tests, and had failed on "stand on one foot and count aloud until I tell you to stop".  According to the testimony, the defendant at first didn't count aloud, was then asked to, and counted "5 6 7 8 9 10" and put her foot down.  The arresting officer asked "Why did you stop?"  She said "I'm done."  And that was the end of the sobriety test evidence.  No breathalyzer evidence was admitted.  The defense attorney even offered in his closing argument that it is hard for a sober person to stand on one foot and count for a long period of time.  I wasn't sure I bought that argument.

Once we got into the deliberation room it took about 30 minutes to reach a consensus.  Some of us had been convinced that the arresting officer was inexperienced, and although the defendant had drunk a few beers during the day, she probably wasn't over the limit for blood alcohol at the time she was arrested.  The testimony of the officer that she was driving slowly and hunched forward over the wheel (what he described as "windshield face") didn't seem all that compelling... there was no mention of erratic steering, falling down, etc.  And where was the breathalyzer evidence?  If she had failed the breath test, it would surely have been brought up in court.

There were a few jurors who weren't really sure either way.  I was in the not-drunk camp, and it wasn't long before I was the spokesman for the not-drunk camp.  Before long the drunk camp contained only one woman who (late in the deliberations) said "Listen, my dad is a retired police officer, and those guys are fully trained to recognize a drunk person."  I asked her if that shouldn't have been grounds to excuse herself from the jury, given that anyone less inclined or more inclined to believe a police officer's testimony was supposed to identify themselves before the trial.  She said "I'm not more inclined to trust a police officer," then after a pause added, "well I guess I am."

I pressed on.  "Is it completely inconceivable that a young inexperienced officer might not have a firm grasp on his DUI training, given all the other stuff he has to learn?  There's good and bad in every bunch, is it impossible that this guy just made a mistake?  Smelled a little beer, saw red eyes and decided the defendant was drunk?  Heck I could drink a beer and pet my cat and I would meet both of those requirements and yet be completely fit to drive."

Eventually, she gave up.  "Well I think she's guilty, but I'll say not guilty because you've all made up your minds."  And so the defendant was able to walk out of the courtroom, avoiding a conviction for driving while intoxicated.

Outside the courtroom, the defense attorney asked to talk to me once the trial was over.  He wanted to know the details of our deliberation, perhaps to determine what arguments were effective and what arguments were not.  The defendant was standing right next to him.  So I went over with him what we had discussed.  When I mentioned that we felt there would have been breathalyzer evidence had she failed the test, the defendant suddenly laughed and said "Of course there was no breathalyzer evidence, I refused to take the test."  This fact, combined with what I read on her face during this admission, a sort of ha-ha-I-fooled-you look, immediately changed my mind.  My heart sank in my chest and I realized I had been instrumental in allowing a person who had been endangering herself and others while driving drunk to get off scott free.

The lawyer explained that under Massachusetts state law it is considered the equivalent of invoking the fifth amendment, you can refuse breathalyzer and sobriety tests on the grounds that it would incriminate you.  Further, the prosecutor in an OUI case is not allowed to reveal if a defendant refused the breathalyzer or sobriety test in Massachusetts.  So this is why we had not gotten any breathalyzer evidence, because the defendant herself believed she was drunk at the time, and had refused the test.  My expression probably betrayed my feelings because the defendant laughed again and said to her lawyer "He's starting to think he made the wrong decision."

I was not amused.  I looked her in the eye and said "If I were you, I'd be thanking my lucky stars I got away with it because you very nearly didn't, so you damn well better not do it again."  I turned and stalked away.  Minutes earlier I was feeling pretty good about doing my civic duty.  Now I was furious, mostly with myself for being such a tool.  The two most convincing and outspoken jurors in that deliberation room had been the lady who's father was a police officer and myself.  Had I not been there, the defendant might have gotten the conviction she deserved.

I fumed about it for days afterward, but like all things, eventually it faded from my consciousness, except for one detail--if there is no breathalyzer evidence, the defendant refused the test.  This one piece of information would likely cause me to immediately feel a defendant was guilty if no breathalyzer evidence was offered, so in order to obey the law, from this point forward I would need to excuse myself from juries for OUI cases.  I'm not sure I buy the "fifth amendment" comparison.  Unless I'm mistaken (always a possibility), if a witness asserts their fifth amendment privilege, they do so on the stand in front of the jury.  The jury doesn't get shielded from the fact that the witness refused to answer.  So I fail to see why the jury should be shielded from the fact that the defendant refused to take a sobriety test or a breathalyzer test.

I was reminded of this story by an article in the Sentinel & Enterprise (the local conservative rag) about the defendant's right to refuse the breathalyzer. 

...When state police arrested a Fitchburg police detective last month for operating under the influence, he refused to perform field sobriety tests or take a breathalyzer, according to a state police report.

And when state police arrested a Fitchburg school district guidance counselor earlier this month for OUI, she also refused to take the breath test, a police report shows.

Both of their trials are scheduled to take place in the next two weeks.

An easy win?

OUI cases are a cakewalk if there is no breathalyzer results and no field sobriety tests, according to attorney Christopher M. Uhl, who defends drunk driving cases...

I will not debate the accuracy of the breathalyzer test--there is evidence both ways.  But this event in my life bothered me for a long time and that is what I wanted to relate.

What do you think?  Should a jury be allowed to know that a defendant refused a field sobriety test or a breathalyzer test?

According to the Hartford Courant, sentencing in the Julie Amero case I wrote about last month has been pushed out a second time to April 26.  States Attorney Michael Regan has become involved.  No reason for the delay has been officially given, but it's clear that it probably has something to do with a pantload of people who actually have a clue when it comes to computers saying, in effect, "WTF are you idiots doing over there?!!?"

Stay tuned...

Viacom Sues Google

You probably know that the media giant Viacom recently sued the internet giant Google over Viacom content which appears on YouTube.  People who watch big companies like these have been saying that as soon as YouTube got purchased, the lawsuits would come.  Mostly because YouTube didn't have a lot of money, so suing them for damages wouldn't net much.

Now that YouTube is owned by Google, there's money to be had, and so now a company isn't limited to seeking injunctions so their content can't be shown on YouTube, now they can seek damages--quite a bit of damages actually.  Viacom claims Google owes it 1 billion dollars, which is pretty hefty.

Google for its part has been trying to negotiate with Viacom, to work out some sort of deal where Viacom content can be shown on YouTube.  The lawsuit may just be another way that Viacom is choosing to negotiate, so it may never actually go to court.

Viacom seems less interested in allowing YouTube to show Viacom content, and more interested in having all of its content taken off YouTube.  The sticking point, from what I've heard, has been the filtering of any future Viacom content from YouTube.  In order to prevent any more Colbert or South Park or whatever from appearing on YouTube, people would need to actively view every posted video and delete content owned by Viacom (which is a pretty wide variety of stuff).

Google has basically said "when you want something taken down, just send us a list and we'll take it down."  But that isn't good enough for Viacom, and they want Google to actively filter the material.  To which Google has indicated for that kind of service they would need some sort of compensation.  Of course Viacom is not going to pay Google to take down content which belongs to Viacom in the first place!

The complexity of such filtering, while perhaps not immediately appreciated by Viacom, is certainly appreciated now.  MoveOn.org and a number of other groups have sued Viacom for asking Google to remove videos which were not Viacom content, but parodies of Viacom content and therefore protected under fair use.  You see, it's not as simple as searching for "Colbert" and printing a list.  Duh.

All that aside, I think Viacom has a good case against Google.  The content really does belong to Viacom, and it is copyrighted.  The "we can't control what our users do" argument didn't work for Napster and I wouldn't expect it to work here, even though the content here is partial clips instead of entire songs.  The hope therefore is that Viacom will instead work out a deal with Google so that the case doesn't go to court.

In many ways it is good for a company to have clips of it's content appear on YouTube.  For example, I was never a big Family Guy watcher.  But after laughing my ass off to some clips on YouTube, I went out and bought the first season of Family Guy on DVD, and now I own seasons 1-4 on DVD.  The YouTube clips made the owners of Family Guy some money in my case.  It's really a form of free advertising, and some companies have embraced that.

Ultimately if the case goes to court, I expect Viacom will win, and YouTube will have to change dramatically.  I hope that doesn't happen.

Carol Burnett Sues "Family Guy" Creators

In one of the recent seasons of family guy there is an 18-second clip featuring Carol Burnett's famous cleaning-lady character mopping up the floor of a pornography shop.  Ms. Burnett has responded to this parody of her character by suing the creators of Family Guy for copyright infringement, and is seeking 2 million dollars in damages.

When I was a kid, I loved the Carol Burnett show.  I watched it all the time (even in reruns) with my family and laughed myself silly.  What I find odd is that many times the show included parodies of movies, TV shows, or novels.  So clearly, Ms. Burnett understands the use of parody, particularly in comedy.  One would think that to see her trademark character remembered after all these years would be flattering.

Guess not.

There's no way she is going to win.  It's obviously parody and is protected.  I can't see how she would not know this and so I'm assuming she just needs the money and is hoping for some sort of settlement.  It's depressing really, because I've always liked Carol Burnett.

In all likelihood, if you are reading this you are a computer user who has a basic familiarity with the Internet and using computers, and that knowledge may serve you well as you read this.  This is a story about a 40-year old substitute teacher from Norwich, Connecticut, who apparently through ignorance of computers, is facing 40 years in jail, because of porn pop-ups on a classroom computer.

Having visited porn sites, I know full well that once you have one open, it's often quite difficult to get rid of it.  What happens is when you click the close box, either a bit of JavaScript or a piece of malware traps the "OnClose" event and opens a new porn page for you.  Close that one and it happens again.  And usually you have to close many such windows before they stop coming back.  This is standard operating procedure for most porn sites.  Usually porn sites are part of a "family" of sites all owned by the same distributor.  Thus when you click the close box on one site the next site in the family will pop up, unbidden.  And it is quite possible for this to happen even with standard IE-pop-up blocking turned on.

You can make this not-happen if you have a very good pop-up blocker, but such blockers are not reliable in my experience... they catch some pop-ups but not all.  There are other tricks (I'm told) that you can use if you are a real computer expert.  But the victims in this case were not computer experts.  They were a substitute teacher covering a computer class, and her 11 to 13 year old students.

According to Ms. Amero, in October of 2004, she entered the classroom to find some students at the teacher's computer, accessing a site about hair care.  One of them didn't belong in that classroom and the other did.  Being a substitute, Ms. Amero was not familiar with any of the students.  Shortly thereafter porn pop-ups began appearing on the machine.  Ms. Amero sought to get rid of them in a fashion typical of an average user.  She clicked the close box.

"The pop-ups never went away. It was one after another," she testified. "They were continuous. Every time I clicked the box in the corner, the red box, the red X, more were generated."

The school for its part, did what most schools do when parents overreact to something that could have happened to anyone.  They fired Ms. Amero.  Shortly thereafter, Ms. Amero was arrested--charged with four felony charges of risk of injury to a minor, a sub-clause of that violation specifically with respect to the morals of a minor.

Ms. Amero lost her court battle.  The prosecutor maintained that there is no way to get porn sites to pop up without deliberately clicking a link to open them--which is twaddle, and anyone with a passing knowledge of web surfing knows it.  Further he claimed that since Ms. Amero didn't simply pull the plug or throw a jacket over the monitor until the problem could be dealt with, then she must have intended to view those sites in the presence of children.

Ms. Amero claimed that substitutes are not supposed to disturb or touch anything in a teacher's classroom, and therefore believed that she could not shut the computer off.

I've seen inexperienced computer users when faced with an unexpected behavior--in college I worked for the school's computing services department, and one of my jobs was assisting people using computers.  Many of those people were computer illiterate, and let me tell you, the obvious solution isn't the first thing they try.  Many computer illiterate people are afraid they are going to "break the computer" and are therefore unwilling to try anything unusual.  It doesn't surprise me in the least that this substitute teacher would simply try closing the pop-ups ad nauseum.

I have read the entire record of testimony from the case, and see a number of problems here.  In my opinion this is a mistrial, and the case would need to be heard again.

With respect to the evidence, a number of the expert witnesses made claims that I know for a fact are false.  Whether or not they know they are false, I can't say, but I'm inclined to give them the benefit of the doubt and say that there are gaps in their expert knowledge.  The information services manager for Norwich Public Schools testified under oath that is was not possible to get into an "endless loop of pornography".  That's flat out wrong.  He was also asked under oath if spyware or ad-ware could generate pornography, and testified that they could not.  This man does not know what he is talking about.

The detective on the case is clearly very knowledgeable about computer crime.  And yet, at one point in the case he testified that if you click a link to a page, when you next view the link on a web page the link has changed color, but this does not happen if the page in question opened as a pop-up.  That's completely incorrect.  Your browser tracks URLs that were visited, not how they were visited.  Links to pop-up pages will turn purple just like links you clicked manually.  The reason it is important is it has direct bearing on whether Ms. Amero deliberately chose to view a porn page, or if that page appeared as a pop-up through the action of ad-ware or hokey JavaScript or whatnot.

The other, immensely huge problem with the case is the defense attorney.  The defense attorney is a self-professed computer illiterate, and should have had a computer consultant with him at all times so that when other witnesses are offering incorrect testimony as expert opinion, he could consult with his own expert and get him up there on the stand.  But the defense attorney appeared to be completely unprepared most of the time.  When the state rested the defense attorney wasn't ready to present his case, to the consternation and bewilderment of the judge.  "I wasn't expecting the state to rest right now."

The defense's first witness was a computer expert who intended to give a presentation in court regarding ad-ware and spyware he found on the machine, a presentation that would have explained the difference between clicking a link and being redirected, and which would have demonstrated how Ms. Amero could have gotten stuck in a loop of porn pop-ups without necessarily clicking on anything suspect.  He was not allowed to give his presentation (which I got the impression included slides, and ad-ware/spyware reports from the hard drive in question) because the defense attorney hadn't seen fit to give the reports and slides to the prosecution ahead of time.  If you don't disclose evidence to the other side, it can't be presented in court.  The only thing I could conclude is it was taking the defense expert time right up to the day before to get the presentation ready.

The defense expert was also dreadful.  Having only prepared to give a presentation, his responses to question-and-answer type testimony were confusing and ultimately probably seemed evasive to the jury.  I understood what he was trying to get at, having built web applications myself, but even I found myself saying "why in the hell would he choose to phrase it that way?"  He was also a little combative at times because he couldn't understand why he was not allowed to discuss his findings with respect to ad-ware and spyware on the box in question--mainly because the defense attorney wasn't doing his job.

Of course one of the big questions is, was the teacher deliberately viewing porn on the computer at her desk while class was in session?  Prosecution says yes, defense says no.  People who have been following the story have checked the haircare site in question and have discovered that it can indeed lead to a cycle of porn pop-ups (Associated Content 2/26/2007).

The other big question is, did the teacher do enough to prevent the students from seeing the porn?  From the testimony given, it seems that when students came up to the desk, the teacher tried to block the screen or otherwise shoo the students away.  But it is clear from the testimony of the students, a couple of them managed to catch a glimpse of pornographic material.  And from her own testimony, the teacher attempted to close the offending windows which kept popping up, and also at two points during the day told other teachers and the vice-principal she was having trouble with pop-ups.  She said she felt she was not allowed to shut the computer off, and upon being questioned about turning off the monitor only, said she wouldn't know how.

Contrary to the detective's claims, links recolor themselves when a URL is loaded in any fashion, and apart from redirects, it's not really possible to tell from looking at temporary Internet files whether someone visited links deliberately or though the action of spyware or some other agent.  The detective continues to say that he stands by the evidence and that people can't claim spyware or ad-ware was responsible without producing the spyware or ad-ware in question.  Which is rather convenient since the defense expert wasn't allowed to present such evidence in court due to the apparent ineptitude of the defense attorney.

The substitute teacher was in charge of the class, and it was definitely her responsibility to get rid of the porn, and if she didn't know how she should have called up to the office and explained immediately that there was a problem.  So it seems a little incongruous that she would wait until lunch to tell someone she was having a problem (while not bothering to mention that the pop-ups were pornographic in nature.)  I assume she simply made an unwise decision to try and solve the problem herself based on her own limited knowledge.  Therefore at present I can't say that this was a "willful" act (i.e. she was deliberately trying to endanger these children).  Then again, I doubt a 12 or 13 year old catching a glimpse of a nude woman is going to be impaired for life, but that's a topic for another day.

Assuming she is guilty, it seems to me that locking up a 40 year old woman (with no prior convictions) for 40 years because some kids glanced over her shoulder and caught a momentary glimpse of porn on her computer screen is a little extreme.  I think what would be more appropriate is something on the order of 4 months of community service and you can't teach anymore.  There are female teachers who have had sexual relations with their students who've spent no more than a few years in jail.  So something in this case is way out of whack with respect to the punishment fitting the crime.

What do you think?

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Sources:

• Reality Out of Focus: Julie Amero's Raging Internet Porn Addiction (Associated Content 2/26/2007)
• Case against Julie Amero needs to be deleted (USA Today 3/16/2007)
• Inaction sank Amero; read the full trial transcript (Norwich Bulletin 2/25/2007)
• Experts rebuke Amero ruling (Norwich Bulletin 3/9/2007)
• Julie Amero's Blog
• Teacher Faces Prison for Pop-Up Infested PC (PC World 2/7/2007)

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EDIT: spelling issues, and modified final paragraph to be less flippant.

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...The unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated...   more »

Let's hear it for those "activist judges" in Alaska who have ruled that the state must offer the same benefits to the partners of gay state employees that it does to the spouses of hetero state employees...   more »