You shouldn’t talk to the police without a lawyer present, even if you are innocent, especially if you are innocent. The following is a great example of the principle. I mean this for “hackers”, even though the person in question isn’t a hacker.
An incident trending on social media is where a left-wing activist penetrated a Trump rally. She later tweeted that she was going to discuss the matter with the Secret Service:
A lot of us reflexively tweeted back that in such cases, you shouldn’t talk to the police (e.g. this thread). That person angrily responded with the following:
She missed the point by saying “I acted within the bounds of the law”. This is not a thing. Indeed, it means even more that you shouldn’t talk to the police.
There are two factors at play here:
People don’t know the law, so interpret it in their favor. It’s not how they (prosecutors) will interpret the law. It’s weird people confidently believing they know what the law says without ever having read the law.
If they want to prosecute you, but can’t use that law, they’ll find something else, like “conspiracy” or “lying to the police”. These trap a lot of hackers who were never prosecuted for actual “hacking”.
If Twitter has taught me anything it’s that people are terrible at the law. For example, people haven’t read the HIPPA health privacy act but regularly opine about what the law says, such as “nobody is allowed to ask your vaccine status”. Among other things, it’s HIPAA not HIPPA, and the “P” stands for “portability” (of health information), and it has few privacy provisions that only apply in limited circumstance. You can compile a long list of what the HIPAA act doesn’t say by searching for “HIPPA” on Twitter.
This person confidently says what’s a crime:
I could not find “smiling officer” in the statute. What I could find was things like this:
18 USC 1752(a)(1) - knowingly enters or remains in any restricted building or grounds without lawful authority to do so
I dunno, it’s hard to look at her original tweet and not conclude she she’s knowingly remaining where she shouldn’t.
In situations like this, the prosecutors will have a hard time proving this. Her lawyer will point out the smiling officer letting her through. It’s a common issue with hacking, with hackers both knowing they “shouldn’t” do something while pointing out part of the system that seems to “authorize” them. A website providing public access with Terms of Service saying otherwise has been a classic problem, with the courts largely saying that knowingly violating Terms of Service isn’t hacking if they made no attempt to block you.
But if she sits down and talks to the police for an hour, she’s likely to say something that can be used against her in court. They won’t playback the entire conversation to the jury, but only cherry pick the bits that imply she knew she wasn’t authorized by entered/remained anyway.
There is nothing she can say that will help her case, nothing she can say that’ll dissuade them from prosecuting her if they want. There’s a famous YouTube video that makes this point.
What the law actually says matters, each and every word. All the facts of the case matter, not just the ones you cherry-pick to show your innocence. Talking to the police, revealing more facts, giving them the chance to cherry-pick among more facts to show your guilt to a jury.
But maybe your interpretation of the facts and the law are correct (they aren’t, but let’s assume they are). You are still in trouble for talking to the police.
The police are working from the belief that what you did was “wrong” and needs to be punished. In this case, she embarrassed them with a viral social-media post. If they can’t get you for one crime, they’ll get you for another. They are satisfied if they get you a crime even if they can’t get you for the precise crime.
To such crimes are “obstruction” and “conspiracy”. A lot of hackers get caught for one of these two crimes.
For example, on Friday they notify that Monday, they’ll be coming by to take an image of your hard drive, and therefore, you shouldn’t delete anything. You then, of course, delete your browser history and all the porn from your computer. This deletion leaves a trail, so on Monday when they image the drive, they find you deleted files, and charge you with “obstruction of justice” without ever having to charge you with the original crime.
With “conspiracy”, they don’t need to prove you’ve ever committed a crime. Instead, they only need to show that you’ve talked with others about committing a crime, and committed an action that furthered the goal. They can’t prove you robbed the convenience store, but if they can prove you talked with friends about doing it, and bought a gun so you could rob convenience stores, then they get you for “conspiracy”.
In this case, they interview you and if anything material appears to be false, they prosecute for lying to the police. Lots of famous people who don’t commit crimes nonetheless get prosecuted for this. A good example is Michael Sussman, who today was found innocent of “lying to the FBI”, but who spent a year having to deal with the prosecution.
For example, in order to establish that you knew you weren’t authorized, they’ll ask you if you tried other doors first. Being wise to this, that they are trying to establish intent, you might say “no”. But then they pull up surveillance video of you being rejected at another door, and now you can be convicted for “lying to the police”.
You’ve developed misconceptions about the interview process from watching too many cop or legal dramas on TV. In these shows, the interviewee wins by being righteous and/or smart. This is not how it works in the real world. For one thing, they’ve spent thousands of hours practicing this, so even if they are the dumb plodders you imagine, and you a genius, they’ll still win. For another thing, they don’t care about your righteousness. They aren’t debating you, they aren’t discussing it with you in order to decide your guilt or innocence. They are simply gathering as much incriminating evidence against you as they can to pass to the prosecutors.
There is no point at which you can convince them of the righteousness of your cause at which point they’ll fold up their notebooks, admit you were right, and send you on your way.
This person continues with the following tweet:
So many misconceptions in this tweet.
Of course it’s not “custodial in nature”, it often isn’t. So many prosecutions start with invitations to casually chat.
They have no interest in arresting you immediately. If they decide to arrest you, it make take months. Only after they’ve completed their investigation will they get around to arresting and charging you. Among hackers, sometimes it takes years before they swoop in and arrest you.
There is no such thing as “good faith” on their side. Their job is law enforcement, to protect the public, to enforce the law. That is the side they are on, they are never on your side. But they are trained to make it look like they are sympathetic to your side. You go away from the interview thinking it went one way, but from their perspective, it went a completely different way.
Notice how she backtracks a bit, from the absolute “I acted within the bounds of the law” to “we believe I have acted within the bounds of the law”. Her lawyer can’t say whether she acted within the bounds of the law — the lawyer can only believe her side of the story, such as when she claims “I didn’t know I wasn’t authorized to enter the area”. The Secret Service will have a different set of facts which they’ll present the jury. Everyone is innocent according to the facts they tell their lawyer.
Conclusion
This blogpost is for the innocent, those who aren’t guilty of a crime: don’t talk to the police.
In an ideal world, it’d be nice to help out the Secret Service in their quest to plug holes in their security. In the real world, you’ve pissed them off and mocked them on social media. As Miranda warnings advise, anything you say can and will be used against you.
The real world doesn’t work like you see on TV, where righteousness is on your side. The law doesn’t say what you want it to say. The facts you cherry-picked to justify your innocence are not the same facts they’ll present against you in trial.
It’s probably a bad idea to talk to them with a lawyer, there’s nothing you’ll gain, and much that’ll put you in danger. It’s absurdly stupid to talk without a lawyer advising you, pointing out all the misconceptions you have.
Updates
As this person notes, many of the Jan 6 insurrectionists had the same claim, that since the police didn’t stop them, they were authorized to enter the capitol.
When @Popehat offers you free advice, you should at least take it seriously. But the part at the end about Jan 6 is wrong. At least one of the rioters was acquitted in part because the cops standing right there made no attempt to stop him and in fact waved him in.
https://www.politico.com/news/2022/04/06/judge-issues-first-outright-acquittal-of-jan-6-riot-defendant-00023493