Category Archives: Law: Criminal Law

Today’s Simile

The dissent rightfully, in my opinion, points out that Baze has as much to do with abuse of discretion for denying 12(b)(6) motions to dismiss as does a hot dog.

That’s Corey Yung, writing in What do a Writ of Mandamus, 12(b)(6), the Death Penalty, and a Batson Challenge Have in Common?, in an interesting discussion of procedural issues in a recent 8th Circuit opinion in method-of-legal-execution case. That dissent is pretty convincing on some other issues too, by the way.

(I post this in fear that someone will come along and say it’s really some kind of metaphor.)

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Facing White Privilege

In I Got Myself Arrested So I Could Look Inside the Justice System Bobby Constantino, a former prosecutor, discovers a number of things: it’s tough to get arrested for a misdemeanor while white; cops routinely mistreat prisoners in urban jails; probation officers couldn’t really care less.

If any of these sound like they might be news to you, you should read his well-written article in the Atlantic.

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Bad Ideas Are Hard to Kill

Shocking story in the Guardian: California was sterilizing its female prisoners as late as 2010 — without, it appears, required authorizations from state officials. (Even the idea that there’s a procedure is troubling given the history of bad eugenics-based thinking in the US.)

Posted in Law: Criminal Law | 1 Comment

Thoughts on Snowden’s Dead Man’s Switch

It would have been more morally pure for Snowden to choose to stay home and face the consequences after his act of civil disobedience.

I don’t think it follows, however, that Snowden is acting irrationally or treasonously or (wrongly) “taking a hostage” by setting up (or claiming to set up) an information-disclosure insurance policy against reprisals by the US. For evidence for this proposition one need look no further than the very eloquent NYT op-ed by Nasser al-Awlaki, The Drone That Killed My Grandson. Remember that we now live in a country that has a track record of executing US citizens (so-called “targeted killing”) without trial, at least outside the US. The limiting principle, we are told, is that the US only does this when it considers them a grave threat, and cannot get hold of them any other way because they are beyond the reach of arrest — not principles likely to be of great comfort to a Snowden.

For a cryptographer’s analysis of this tactic, see Bruce Schneier’s, Snowden’s Dead Man’s Switch. Schneier suggests it may be counter-productive:

I’m not sure he’s thought this through, though. I would be more worried that someone would kill me in order to get the documents released than I would be that someone would kill me to prevent the documents from being released. Any real-world situation involves multiple adversaries, and it’s important to keep all of them in mind when designing a security system.

A commentator counters that in fact this creates a different incentive:

If the US does not want these secrets released then it is in their interests to keep him alive.

It’s also makes it more imperative to capture him in case anyone else kills him.

Posted in Cryptography, Law: Criminal Law, National Security, Padilla | 2 Comments

Good Work

If you want to see what an absolutely first-class appellate brief looks like, look no further than Petitioner’s Brief in U.S. v. Auernheimer, authored by Tor Ekeland and Mark Jaffe, Hanni Fakhoury of the EFF, Marcia Hofmann (ex-EFF, now in private practice) and Orin Kerr (GWU Law).

If I’m ever convicted of reading and copying stuff off an unprotected web page, I want these guys as my lawyers.

And, yes, that’s the essence of the felony conviction being appealed:

The government charged Auernheimer with felony computer hacking under the Computer Fraud and Abuse Act (“CFAA”) for visiting an unprotected AT&T website and collecting e-mail addresses that AT&T had posted on the World Wide Web. The government also charged Auernheimer with identity theft for sharing those addresses with a reporter.

Auernheimer’s convictions must be overturned on multiple and independent grounds. First, Auernheimer’s conviction on Count 1 must be overturned because visiting a publicly available website is not unauthorized access under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(2)(C). AT&T chose not to employ passwords or any other protective measures to control access to the e-mail addresses of its customers. It is irrelevant that AT&T subjectively wished that outsiders would not stumble across the data or that Auernheimer hyperbolically characterized the access as a “theft.” The company configured its servers to make the information available to everyone and thereby authorized the general public to view the information. Accessing the e – mail addresses through AT&T’s public website was authorized under the CFAA and therefore was not a crime.


Disclosure: I’m on the EFF Advisory Board, but have no connection to the case other than liking those of the lawyers I know.

Update (7/2/13): Here’s EFF’s official announcement, Appeal Filed to Free Andrew ‘Weev’ Auernheimer.

Posted in Law: Criminal Law, Law: Internet Law | Tagged | 1 Comment

The Witness Perspective

Anyone who is, or is thinking of becoming, a prosecutor ought to read Life Inside the Aaron Swartz Investigation for Quinn Norton’s account of what it feels like to be a witness in a prosecution, including in a grand jury proceeding. I doubt that much of it, especially the run up to the grand jury, was an unusual experience, which will make it all the more instructive to participants in the legal system.

I haven’t written about the Aaron Swartz story because I don’t have much to say that hasn’t been said well and often elsewhere. What’s publicly available does suggest that prosecutors took a surprisingly tough line with Aaron Swartz (whom I believe I only met once, briefly, but who left a comment here once). This tough approach is consistent with an attitude I think is common to a lot of law enforcement and, sadly, judges, in that they see “hackers” as evil creatures akin to Tim May‘s ‘four horsemen of the Infocalypse‘.

I’m not, by the way, a fan of the ordinary grand jury, which I think has strayed far beyond what it was and should have been, and has become a too-pliant tool of the prosecution. Interestingly, Florida does it better: as well as using local grand juries to hand down first degree murder indictments, statewide grand juries here investigate social problems and come up with frequently sensible reports and recommendations often aimed at spurring legislation or administrative reform.

And it’s more than clear that we need to reform the Computer Fraud and Abuse Act, along the lines of the “Aaron’s Law” proposal making the rounds.

All that said, and assuming the most noble of motives on Aaron Swartz’s behalf, it also seems to be the case that breaking into a server closet at MIT and inserting a machine there that availed itself of the data stream isn’t nice and wasn’t legal. There was at least petty crime, and perhaps more depending how one valued the data acquired. What is at issue to me regarding the feds (as opposed to, say, MIT) is not so much the fact of a prosecution but rather the means used to go about it. Then again, I suspect these means were standard operating procedure, which is the real issue.

(Spotted via Cory Doctorow, Inside the prosecution of Aaron Swartz.)

Posted in Law: Criminal Law | 1 Comment