Friday, March 12, 2010

Jay Currie, Richard Warman's computers, and the Cools post

As many readers know, a nasty racist screed was made about Anne Cools in September 2003 on Marc Lemire's Freedomsite. During a hearing before the CHRT, Bernard Klatt argued that the author of that post was probably Richard Warman, who denied it under oath. The allegation that was subsequently repeated by a number of other bloggers whom Warman sued. The matter is now slowly working its way through the courts.

I have discussed the evidence extensively on this blog and came to the conclusion that:

  1. there is no evidence that Warman is the author of the Cools post
  2. Warman's computer could not be the source of the Cools post
  3. Bernard Klatt's testimony before the CHRT was seriously deficient.

A recent news article discussing the case (here) was noticed by long-time blogger (and talented photographer) Jay Currie (here). Someone cited several of my postings on the subject, to which Jay responded (here):
I am aware of Buckets work, Harry, as you will see from the comments on those articles – however this was not “an investigation” nor were these “findings”. And, probably most to the point, virtually all of buckets work relies on the assumption that Lucy only had one computer. Now, he has entered a computer in evidence – though he won’t let the defence actually look at it – and it is a laptop computer. What are the chances that a super, duper, whooper secret internet hate buster like Lucy would only have one computer? And his wife? Perhaps she has a computer? And perhaps he has a computer from the CHRC or DOD. buckets is interesting but not at all depositive.
I am, of course, happy to learn that Jay finds me interesting. In saying that my work assumes that Warman had only one computer, however, he rather misses the point, since the one-computer thesis is not mine, but Klatt's.

If we ignore trivialities like the fact that Warman had a yahoo email and the Cools' poster had one from hotmail, Klatt's argument is twofold (see Klatt's affidavit, §§ 22-41):
  1. that Warman's visits the site in October and November were made through the Rogers IP, the same IP as the Cools poster had used (see esp. §35)
  2. that Warman's computer and computer of the Cools poster were configured identically and were therefore the same computer (see esp. § 36)
I have demonstrated that neither point helps identify the Cools poster:
Now Jay proposes a second computer. Does this help? Not really. Klatt's argument is that the IP was the same and the computer was the same. If the computer was not the same, all that's left is the IP, which was shared with millions.

(Comments welcome.)


Jay Currie said...

I am delighted that you think me a talented photographer Buckets. Between you and the chaps at ARC my head is swelling.

As ever, I am impressed with both your logic and your knowledge of the world of IPs, proxies and such like.

At the moment we have a single computer which has been analyzed by Warman's geek. The results of that analysis are interesting but not sufficient to either identify Warman as the author of the Cools post nor eliminate him from contention.

With a bit of luck two things will be established going forward: first, that the computer in evidence is the only computer to which Warman had access on the day in question; second, that there is nothing on that computer which will rule Warman out as the author of the post in question.

Much as I have enjoyed your commentary, what you have done is cast doubt on Klatt's assertion of identity. Fair dues, you have done a first rate job. But what you have not done is establish that it could not have been Warman.

The defence, assuming that they are allowed to access the current computer in evidence and all computers to which Warman had access, have their work cu out for them. We'll see how they do.

buckets said...

Thank-you, Jay, for your kind words. The question, of course, is where the burden of proof lies. You seem to demand that Warman prove something that is unprovable: that he didn't have access to another computer. I doubt whether you could prove that for yourself for the last five minutes. This strikes me as an unending game of "no true Scotsman"

Proof, in any case, is for mathematics. What we need to talk about is evidence. Is there any evidence that points to Warman rather than the other million or two who shared that IP address?

Jay Currie said...

It is an interesting question buckets. Because the question of authorship on the web cannot turn on IPs as Mr. Justice von Finckenstein (as he was then) pointed out in an early file sharing case. Even if you had a meticulous chain of evidence leading from the Stormfront server to Lucy's laptop, that would not "prove" that Lucy himself wrote the Cools post.

Such evidence would be helpful but it would not be conclusive. Instead you would have to take such technical evidence as you might have and combine it with other, essentially circumstantial and prior conduct evidence as may be available. But, remember, the standard of proof here is a balance of probabilities.

Plus, in the post Grant world, it is quite possible that a judge might conclude that on a balance of probabilities Lucy did not write this particular post but still decline to find that people relying upon the evidence of an accepted expert have defamed Lucy even though they got the Cools post wrong.

As to access to other computers, I have not read the Warman affidavit which, I assume, accompanied his computer. So I don't know if he has said he only had the one computer or access to the one computer at the time in question. Normally, this is the sort of question which would come up in discovery or on an Examination on Affidavit - however, because of the (in my view, improper) use of the simplified rules we'll have to wait for trial for this question to be raised.

buckets said...

Jay, It is not merely that the chain of IP evidence from freedomsite (not stormfront) is not meticulous, it doesn't exist at all.

On the value of the circumstantial evidence and the legal questions, I think that others will benefit from reading the remarks of truewest over at your place).

I'm less interested in the legal side than in the question of whether or not Warman really did it or not. Might I ask your opinion on this -- do you think that Warman wrote that post?

Jay Currie said...

Buckets, given Lucy's propensity to sue I am going to hedge a bit - there's that libel chill you hear so much about.

Balance of probabilities? I'd say Lucy is the leading candidate. Pattern of prior conduct, the withdrawal of the Cool section of the complaint when Lemire gained the right to look at the ISP records and, frankly, the absence of other likely candidates.

This last is interesting. Realistically, other than federal government employees, there were not a whole lot of Ottawa residents who were aware of, much less posted to, far right sites. We know that Lucy was one of that select minority.

My own view is that the evidence we have points in Lucy's direction. (His denials cut little mustard - he denied other posts only to have to admit under cross examination that he had, in fact, made the posts.)

But a vigorous examination of the computer Lucy has provided as well as any other computers he owned at the time, plus a few other technical measures might narrow the uncertainty considerably.

buckets said...

Thanks, Jay. My comment on some of your points:

"Pattern of prior conduct" -- Correct me if I'm wrong, but (1) there is no other post quite like this at any time and (2) all other posts were subsequent, not prior, to the Cools post.

"the withdrawal of the Cool section of the complaint" -- that doesn't strike me as a sustainable argument (again as, ahem, truewest has pointed out at your place)

"absence of other likely candidates" -- have you looked?

"not a whole lot of Ottawa residents who were aware of, much less posted to, far right sites" -- there's no reason to limit this to Ottawa -- these proxies serve all of Rogers in Ontario, which means Ottawa, Toronto, Barrie, London, and Kitchener-Waterloo. And strictly speaking, these proxies probably also covered Rogers' subscribers in Newfoundland, New Brunswick, and Quebec. And as to knowledge of far right sites, freedomsite did advertise itself in the kinds of places that white nationalists hang out.

"he denied other posts" -- I think you're misremembering. Are you referring to this episode? That was a forgotten account, not a forgotten post.

"vigorous examination of the computer Lucy has provided as well as any other computers he owned at the time, plus a few other technical measures might narrow the uncertainty considerably" -- Hope, as they say, springs eternal.