court trial against me - the outcome

[Scott MacLeod]

Kafka and the Internet . . . perhaps you might turn this into an interactive
novella



On Nov 14, 2007 9:22 AM, Mirko Thiesen <Mirko.Thiesen at tuebingen.mpg.de>
wrote:

> Good morning,
>
> I've been operating a Tor node (NetWorkXXIII) for quite some years now
> (although it was down for several months as it was facing repeated DDoS
> attacks earlier this year).
>
> In June the local police informed me about preliminary proceedings against
> me by asking me (by mail) to "visit" them. The letter mentioned computer
> fraud (actually it was "Computerbetrug in Tateinheit mit Faelschung
> beweiserheblicher Daten gemaess Paragrafen 263a, 269, 52 StGB"), but since
> I
> hadn't done anything I followed the general advice in such situations: You
> have the right to remain silent. Use it. So I decided not to go to the
> police - if you haven't done anything and you don't even have a clue what
> they are talking about, it usually can only get worse. Apart from that,
> the
> day they wanted me to come I was not even in town.
>
> In early September I received a penalty order ("Strafbefehl") - from the
> court. A judge found me guilty of having ordered a gift voucher (value: 51
> EUR) on amazon.de, providing address details of a living person (but not
> myself obviously), and using a Web.de email address registered
> specifically
> for this purpose. I was sentenced to pay a fine of 500 EUR.
>
> Because I hadn't ordered the voucher, I appealed ("form- und
> fristgerechter
> Einspruch") to that penalty order, which led - according to German laws -
> to
> an actual trial. This trial was held today.
>
> While the penalty order listed four witnesses (the person whose address
> details had been used, a police officer in a cow town near that person's
> home hometown, a local police officer, and an employee of amazon.de), the
> summoning ("Ladung") to the actual trial didn't list any witnesses at all.
> I
> had been a lay assessor ("Schoeffe") for four years in Germany (but in a
> different part of the country), so I knew that this usually would be a
> good
> sign as the judge(s) during the actual trial wouldn't have much more than
> the defendant's testimony (and of course the records) to rely on.
>
> Well, it turned out to be the exact opposite of what I had expected. They
> had absolutely no doubts that I was at least somehow guilty. I explained
> in
> great detail what Tor is and what it is used for, and the judge asked me:
> "Is this illegal?" Wow - shouldn't she know?! I replied "No, of course
> not.
> Otherwise I wouldn't do it."
>
> The judge and the public prosecutor realized soon that I probably wasn't
> the
> originator of the transaction in question. But instead of realizing the
> faults of the police and the public prosecutor's department (German laws
> say
> that they have to investigate *all* aspects of a crime and not just find
> someone that seems to be somehow guilty at first sight), they tried to
> construct a case of aiding and abetting ("Beihilfe") - they insisted that
> I
> most probably set up my node in  order to help people committing crimes.
> Or
> at least I accepted that people would commit crimes using my Tor node. I
> asked "What about a postal service that delivers i.e. a bomb or a
> blackmail
> letter? Do they help people committing crimes as well?" They said that
> these
> two things could not be compared as a postal service offers transportation
> services whereas I offer anonymization services.
>
> To make a long story short: The judge as well as the public prosecutor
> refused to accept that I didn't do anything  criminal, that I didn't and
> still don't want to help anyone committing a crime (at least not more than
> i.e. <put a random
> telco/ISP/postal service here> does), and that they should have
> investigated
> the issue further beforehand.
>
> They offered me to dismiss the actual court trial according to paragraph
> 153
> StPO which is not the same as an acquittal (no "Freispruch") which I
> eventually accepted. It means, however, that I won't have to pay for the
> trial. They also repeatedly said that this time I got off with just a slap
> on the wrist - next time it wouldn't be that cheap.
>
> Yeah, and that's it. I am completely disappointed by the way this court
> trial was held. I don't know if this is how they usually do it here in
> Southern Germany. When I was a lay assessor, we always treated the
> defendants with some kind of respect - not only but especially if there
> was
> no actual evidence that they had committed a crime. But the public
> prosecutor as well as the judge both repeatedly showed me their disrespect
> -
> because I didn't confess anything, because I was not thankful for their
> offer, because I still operate this criminal thing they obviously had no
> clue about.
>
> Okay, signing off for now.
>
> Bye, K&K,
> T-Zee
> --
> |Mirko Thiesen          "We're with you all the way, mostly"|
> |Mirko.Thiesen at Tuebingen.MPG.de    | http://www.kyb.mpg.de/ |
> |MPI for Biological Cybernetics    | Phone: +49-7071-601-638|
> |Spemannstr. 38, D-72076 Tuebingen | FAX:   +49-7071-601-616|
>



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