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Re: court trial against me - the outcome

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

On Nov 14, 2007 9:22 AM, Mirko Thiesen <Mirko.Thiesen@xxxxxxxxxxxxxxxx > 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,
|Mirko Thiesen          "We're with you all the way, mostly"|
|Mirko.Thiesen@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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