After Threatening Hacker with 440 Years, Prosecutors Settle for a Misdemeanor(wired.com)
wired.com
After Threatening Hacker with 440 Years, Prosecutors Settle for a Misdemeanor
http://www.wired.com/2014/11/from-440-years-to-misdemeanor/
124 comments
> uses sentencing guidelines to figure out a sentence for the "worst" single count you're charged with,
The prosecutors get to decide what if any counts you are charged with. They have the most control over sentencing, judges very little. The little Judges do have is often constrained by mandatory minimums some of which require consecutive termss.
That judges are able to use their discretion and work within "guidelines" is a myth.
The prosecutors get to decide what if any counts you are charged with. They have the most control over sentencing, judges very little. The little Judges do have is often constrained by mandatory minimums some of which require consecutive termss.
That judges are able to use their discretion and work within "guidelines" is a myth.
There are no mandatory minimum sentences for computer crimes of any sort. Here's an apparently more-or-less complete list of federal crimes that have mandatory minimums:
* Drug trafficking or manufacture
* Firearms used in the commission of felonies
* Identity theft, but only in the context of the specific list of crimes in 18 U.S. Code § 1028A (c) (purchase of firearms, immigration, passports, terrorism, bank fraud, &c)
* Trafficking in illegal immigrants
* Sex offenses against children
* Hijacking, kidnapping, violent terrorism, and hostage-taking
* Murder
* Racketeering
* Piracy, of the yo-ho-ho variety
The "consecutive sentence" issue here is also tricky, because some of these minimums are added as sentence accelerators; for instance, the gun crime minimums add years to the sentence you'd get for the underlying felony, and those extra years are served consecutively --- but that doesn't make all the charges for the felonies necessarily "stacking".
Mandatory minimum sentences are a terrible idea, and the minimums for drug crimes are particularly stupid, but they're not a factor in this story.
* Drug trafficking or manufacture
* Firearms used in the commission of felonies
* Identity theft, but only in the context of the specific list of crimes in 18 U.S. Code § 1028A (c) (purchase of firearms, immigration, passports, terrorism, bank fraud, &c)
* Trafficking in illegal immigrants
* Sex offenses against children
* Hijacking, kidnapping, violent terrorism, and hostage-taking
* Murder
* Racketeering
* Piracy, of the yo-ho-ho variety
The "consecutive sentence" issue here is also tricky, because some of these minimums are added as sentence accelerators; for instance, the gun crime minimums add years to the sentence you'd get for the underlying felony, and those extra years are served consecutively --- but that doesn't make all the charges for the felonies necessarily "stacking".
Mandatory minimum sentences are a terrible idea, and the minimums for drug crimes are particularly stupid, but they're not a factor in this story.
Yeah, but they're trying to make racketeering something you're guilty of by being in violation of the CFAA - see https://www.techdirt.com/articles/20130324/14342822435/rathe... .
"if you are found to violate the CFAA as part of an activity that involves a variety of other crimes, you can now also be charged with racketeering. More specifically, if you look at that long list of related statutes in the definition to 18 USC 1961 (1), it will also include: "‘section 1030 (relating to fraud and related activity in connection with computers)."
"if you are found to violate the CFAA as part of an activity that involves a variety of other crimes, you can now also be charged with racketeering. More specifically, if you look at that long list of related statutes in the definition to 18 USC 1961 (1), it will also include: "‘section 1030 (relating to fraud and related activity in connection with computers)."
First, don't ever take legal analysis from Techdirt at face value. It's often quite bad. Here are good comments from 'tzs about this issue ('tzs, besides being one of my favorite HN commenters, also went to law school):
https://hn.algolia.com/?q=author%3Atzs+techdirt#!/comment/fo...
Second, not all racketeering crimes are subject to federal mandatory minimums --- racketeering charges with minimums all involve forms of money laundering. The court has to find that you were laundering money regardless of how you use computers to do it.
Third, Techdirt takes the bill radically out of context; by Techdirt's logic, 18 USC 1961 also makes any misuse of a passport, any bribery, any counterfeiting, any obstruction of justice, and any violation of money transmitting statutes "racketeering". Of course, that's not how the law works. CFAA offenses were merely being suggested as one of the huge list of offenses that could, in the context of a racketeering case, be construed as part of the racketeering. The state still needs to make a racketeering case on the merits.
Fourth, in context, that one section of the bill actually makes sense. Racketeering is the crime of running a "racket"; the best-known example of this is a protection racket. It actually doesn't make sense for computer crimes to be exempt from the list of things you can shake businesses down for. As luck would have it, this is an issue being discussed on the front page of HN today:
https://news.ycombinator.com/item?id=8661245
Fifth, the bill was a House draft that apparently never made it out of committee.
If you want to learn more about the elements of the crime of racketeering and RICO in general, a good place to start is model jury instructions.
I'm less charitable towards Techdirt than other smart people seem to be. Popehat, for instance, which I more or less revere, routinely links to them. I find their coverage misleading at best, and often --- as in this case, where the author tries to convince their readers that the House wants to make all CFAA crimes chargeable as "racketeering" --- overtly dishonest.
In any case: no, nobody has proposed mandatory minimums for CFAA crimes.
https://hn.algolia.com/?q=author%3Atzs+techdirt#!/comment/fo...
Second, not all racketeering crimes are subject to federal mandatory minimums --- racketeering charges with minimums all involve forms of money laundering. The court has to find that you were laundering money regardless of how you use computers to do it.
Third, Techdirt takes the bill radically out of context; by Techdirt's logic, 18 USC 1961 also makes any misuse of a passport, any bribery, any counterfeiting, any obstruction of justice, and any violation of money transmitting statutes "racketeering". Of course, that's not how the law works. CFAA offenses were merely being suggested as one of the huge list of offenses that could, in the context of a racketeering case, be construed as part of the racketeering. The state still needs to make a racketeering case on the merits.
Fourth, in context, that one section of the bill actually makes sense. Racketeering is the crime of running a "racket"; the best-known example of this is a protection racket. It actually doesn't make sense for computer crimes to be exempt from the list of things you can shake businesses down for. As luck would have it, this is an issue being discussed on the front page of HN today:
https://news.ycombinator.com/item?id=8661245
Fifth, the bill was a House draft that apparently never made it out of committee.
If you want to learn more about the elements of the crime of racketeering and RICO in general, a good place to start is model jury instructions.
I'm less charitable towards Techdirt than other smart people seem to be. Popehat, for instance, which I more or less revere, routinely links to them. I find their coverage misleading at best, and often --- as in this case, where the author tries to convince their readers that the House wants to make all CFAA crimes chargeable as "racketeering" --- overtly dishonest.
In any case: no, nobody has proposed mandatory minimums for CFAA crimes.
> "In any case: no, nobody has proposed mandatory minimums for CFAA crimes."
False.
http://volokh.com/2011/05/24/congress-considers-increasing-p...
False.
http://volokh.com/2011/05/24/congress-considers-increasing-p...
Groan.
* 2011.
* Failed bill.
* Proposed making hacking that takes down the power grid subject to 3-year mandatory minimum.
* Raised a concern for Kerr in 2011 that was ameliorated by Nosal later.
You're right. I should say, "nobody IS proposing".
* 2011.
* Failed bill.
* Proposed making hacking that takes down the power grid subject to 3-year mandatory minimum.
* Raised a concern for Kerr in 2011 that was ameliorated by Nosal later.
You're right. I should say, "nobody IS proposing".
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The sad part is the people who refuse to recognize this and keep repeating the 400 year numbers. That probably only makes it even more terrifying for the next defendant. Hopefully their lawyer will tell them what they're really facing, but it can be tough for a lawyer (we all hate the lying lawyers, right?) to overcome peer sentiment.
Perpetuating these myths does a disservice to anyone who believes them. If you want to take away prosecutors power to threaten, stop giving it to them.
Perpetuating these myths does a disservice to anyone who believes them. If you want to take away prosecutors power to threaten, stop giving it to them.
In fairness, the DOJ also shouldn't be publishing falsehoods in press releases like this.
Yeah. The problem is that they aren't quite falsehoods. A judge can structure the sentences to run consecutively, especially if that's necessary to achieve the guideline sentence. It's true, though, that this is extremely uncommon. Nonetheless, though, DOJ probably should also not be out there spouting a lower number. Perhaps they should just stop bragging about sending people to jail altogether.
(We've disagreed about this before. Instead of rehashing everything we've already written about the guidelines, I'll just direct people to this previous discussion -- unless, that is, you have anything you'd like to add. https://news.ycombinator.com/item?id=7999002)
(We've disagreed about this before. Instead of rehashing everything we've already written about the guidelines, I'll just direct people to this previous discussion -- unless, that is, you have anything you'd like to add. https://news.ycombinator.com/item?id=7999002)
I don't think this is accurate.
[Is what I wrote before you pointed out your earlier comment, which is fantastic and I have nothing to add to it. Sorry, I should respond to comments assuming people know what they're talking about, and in criminal law threads I have a bad habit of doing the opposite.]
The "Introduction to Federal Sentencing" here:
http://nj.fd.org/Introduction%20to%20Federal%20Sentencing%20...
...states outright that grouping is mandatory. I'm guessing you're right: that if a judge can articulate a reason to override the sentencing rules, they can do that. I'm trying to find a case where such a thing happened and was then challenged on appeal.
[Is what I wrote before you pointed out your earlier comment, which is fantastic and I have nothing to add to it. Sorry, I should respond to comments assuming people know what they're talking about, and in criminal law threads I have a bad habit of doing the opposite.]
The "Introduction to Federal Sentencing" here:
http://nj.fd.org/Introduction%20to%20Federal%20Sentencing%20...
...states outright that grouping is mandatory. I'm guessing you're right: that if a judge can articulate a reason to override the sentencing rules, they can do that. I'm trying to find a case where such a thing happened and was then challenged on appeal.
But what did the conversations look like behind closed doors? "If you don't work with us, I'll guarantee the judge gives you the maximum sentence" seems plausible.
They can't guarantee that. Even the judge can't guarantee it. The grouping rules for sentencing multiple charges are binding. It's not a situation where "usually judges are just cool and don't make you serve the sentence for every charge". Grouping is mostly not discretionary.
I find it curious that so many people HATE lawyers, until they need one.
The state has virtually unlimited resources and a legal monopoly on the use of force to compel obedience. That's far more terrifying than the ability of some lawyers to spin events in a favorable light.
The state has virtually unlimited resources and a legal monopoly on the use of force to compel obedience. That's far more terrifying than the ability of some lawyers to spin events in a favorable light.
Because when it comes down to it, lawyers (as a profession) are responsible for getting this garbage into the legal code in the first place.
It would be like me writing a business-critical app in INTERCAL or Brainfuck simply out of job security by obscurity, except instead of just me, imagine this was a commonly accepted practice for programmers, and you had to go to a very expensive school to become a programmer in this hypothetical world.
It would be like me writing a business-critical app in INTERCAL or Brainfuck simply out of job security by obscurity, except instead of just me, imagine this was a commonly accepted practice for programmers, and you had to go to a very expensive school to become a programmer in this hypothetical world.
What people are upset about, harsh sentences and lack of judicial discretion in sentencing, were introduced on the back of public concern over criminals being let go on "technicalities" or judges giving lenient sentences based on "sob stories."[1] But those changes reduce how much good lawyering can help a defendant, and thus reduce the value of criminal defense lawyers.
[1] It's really interesting to watch 80's dramas like "Star Chamber" to see these concerns aired out.
[1] It's really interesting to watch 80's dramas like "Star Chamber" to see these concerns aired out.
As much as programmers are responsible for making computers as impenetrable as possible for normal folks to understand.
And let's not even get started with the mathematicians.
We all know that when stuff gets down to the details, things get complicated, edge cases multiply, and language turns into jargon. Law is no different.
And let's not even get started with the mathematicians.
We all know that when stuff gets down to the details, things get complicated, edge cases multiply, and language turns into jargon. Law is no different.
>As much as programmers are responsible for making computers as impenetrable as possible for normal folks to understand
Programmers have made computers significantly easier to use, for more purposes, including programming them, over time.
Lawyers have done the reverse. This comparison is not favorable to them.
Programmers have made computers significantly easier to use, for more purposes, including programming them, over time.
Lawyers have done the reverse. This comparison is not favorable to them.
> I find it curious that so many people HATE lawyers, until they need one.
I'm pretty sure they hate them after they need them too.
I'm pretty sure they hate them after they need them too.
>I find it curious that so many people HATE lawyers, until they need one.
Just like how people hate their captors until they want to know where the keys are.
Just like how people hate their captors until they want to know where the keys are.
You've said this a few times, but you leave out how scary it must be to be charged in such fashion. Some people are uninformed and plead guilty just to avoid that scary fate.
I know you're not saying anything more than "This isn't actually what it would have turned out to be," but what would it have turned out to be if these charges had stuck? I'm curious how long a felony count of computer fraud or cyberstalking will land you in prison for.
I know you're not saying anything more than "This isn't actually what it would have turned out to be," but what would it have turned out to be if these charges had stuck? I'm curious how long a felony count of computer fraud or cyberstalking will land you in prison for.
I don't know, but that's not what happened in this case; the defendant had an extremely competent lawyer who specializes in computer crime cases.
How long could your sentence be? With no criminal history and for offenses deemed non-money-making, your sentence could be so low that you fall below the threshold for probation. On the other hand, if your crime is deemed serious or you have any history, 3-4 years might be more realistic. If you ran the world's largest credit card ring --- really, if you did anything with credit cards --- think more along the lines of 10-20 years.
Interestingly, that last point has been a truism in the "computer underground" since I was a teenager. Break into phone switches. Own up Unix boxes. Release viruses. Just don't fuck with credit cards. It remains truish today.
How long could your sentence be? With no criminal history and for offenses deemed non-money-making, your sentence could be so low that you fall below the threshold for probation. On the other hand, if your crime is deemed serious or you have any history, 3-4 years might be more realistic. If you ran the world's largest credit card ring --- really, if you did anything with credit cards --- think more along the lines of 10-20 years.
Interestingly, that last point has been a truism in the "computer underground" since I was a teenager. Break into phone switches. Own up Unix boxes. Release viruses. Just don't fuck with credit cards. It remains truish today.
One of the things people should understand is that plea bargains are not binding on the court. Before a plea is accepted, a judge will engage in a plea colloquy, where she will have a conversation with the defendant in open court to make sure that the defendant really understands what he's pleading to. A judge has no obligation to accept a plea she does not think is supported by the evidence, or which she thinks based on the colloquey goes beyond what the defendant is freely admitting to have done.
Which is why people being charged with crimes get lawyers: the lawyer can translate the legal proceedings and give you an actual understandable view as to what they mean.
It certainly is scary. Those folks are even scary for relatively "small" stuff. Small to them, but enough to majorly disrupt your life.
A competent lawyer is not cheap, and does all the legal things you would expect -- but, if you are lucky, does a lot to help with the psychological/emotional trauma you are going through.
A competent lawyer is not cheap, and does all the legal things you would expect -- but, if you are lucky, does a lot to help with the psychological/emotional trauma you are going through.
> the product of the maximum sentence of each count
Maybe you meant the sum and not the "product"? Or does the legal system have its own version of arithmetic?
Maybe you meant the sum and not the "product"? Or does the legal system have its own version of arithmetic?
I think this is implied in your post, but I want to make it explicit: this is not unique to computer crimes. It's endemic to the reporting of criminal prosecutions in general.
This is an important point because I've seen a lot comments on HN along the lines of "prosecutors single out computer crimes for crazy sentences."
This is an important point because I've seen a lot comments on HN along the lines of "prosecutors single out computer crimes for crazy sentences."
With respect to But that is not how sentencing works in reality, I think that in the long run this is correct, but during negotiations between accused and prosecutor, the numbers will be trotted out, and will be very hard to ignore for the accused. So such numbers do have weight on the mind of the accused.
Keep posting this until everyone gets it and these articles stop being made.
The problem here is that the CFAA - especially the way it is being interpreted as of late - is a relatively new and undefined body of law. Therefore, there is not much case law on point.
As a result you have prosecutors doing what they do best, throwing everything at the wall and seeing what sticks. The problem with throwing everything at the wall is that defendants are more inclined to accept a reasonable plea rather than face the unknown.
For example, is it reasonable to charge someone with a count under CFAA for each instance they try to access a system without permission? You can try to adapt existing case law in unrelated crimes - such as attempted murder, should someone be charged for a new count of attempted murder for each bullet that was shot at a given victim or just a single count notwithstanding the number of shots fired, or how about if there are 2 potential victims the defendant wanted dead but only shot 1 bullet near both of them? Is it reasonable to charge a count under CFAA for running vulnerability software on a website? Is it reasonable to charge someone for breaking and entering if the defendant simply checks to see if doors or windows are unlocked, should we file an additional count for each door/window that was checked or a new count for each time a door knob was turned?
These are all issues that are ripe for the courts to decide, but it will take a very long time before you have a defendant willing to take the risk. What is really troublesome is that in the meantime there are cases such as this where 44 felony counts can be reduced to a single misdemeanor in exchange for a change of plea. The fact that a prosecutor was willing to offer a deal like this means the original charges were improper even in the eyes of the prosecutor.
Expect things to only get worse in terms of prosecutorial discretion vis-a-vis charges under CFAA in the foreseeable future.
As a result you have prosecutors doing what they do best, throwing everything at the wall and seeing what sticks. The problem with throwing everything at the wall is that defendants are more inclined to accept a reasonable plea rather than face the unknown.
For example, is it reasonable to charge someone with a count under CFAA for each instance they try to access a system without permission? You can try to adapt existing case law in unrelated crimes - such as attempted murder, should someone be charged for a new count of attempted murder for each bullet that was shot at a given victim or just a single count notwithstanding the number of shots fired, or how about if there are 2 potential victims the defendant wanted dead but only shot 1 bullet near both of them? Is it reasonable to charge a count under CFAA for running vulnerability software on a website? Is it reasonable to charge someone for breaking and entering if the defendant simply checks to see if doors or windows are unlocked, should we file an additional count for each door/window that was checked or a new count for each time a door knob was turned?
These are all issues that are ripe for the courts to decide, but it will take a very long time before you have a defendant willing to take the risk. What is really troublesome is that in the meantime there are cases such as this where 44 felony counts can be reduced to a single misdemeanor in exchange for a change of plea. The fact that a prosecutor was willing to offer a deal like this means the original charges were improper even in the eyes of the prosecutor.
Expect things to only get worse in terms of prosecutorial discretion vis-a-vis charges under CFAA in the foreseeable future.
The number of counts charged in CFAA doesn't appear to have much to do with sentencing.
There is a huge problem with CFAA sentencing: the sentence accelerator for damages. The iterator count in someone's "for()" loop can make the difference between probation and 3 years in prison.
Incidentally: you probably can be charged with breaking and entering for checking your neighbors window locks.
There is a huge problem with CFAA sentencing: the sentence accelerator for damages. The iterator count in someone's "for()" loop can make the difference between probation and 3 years in prison.
Incidentally: you probably can be charged with breaking and entering for checking your neighbors window locks.
>The number of counts charged in CFAA doesn't appear to have much to do with sentencing.
This is a bit counter-intuitive. In any type of sentencing hearing, if there is any discretion whatsoever, the number or counts/charges is always used an aggravating/mitigating factor. Actually the same goes for negotiating a plea deal, that is why I say 44 felony counts negotiated down to a single misdemeanor is an acknowledgement by the prosecutor something is wrong with the case.
>Incidentally: you probably can be charged with breaking and entering for checking your neighbors window locks.
Yes, but this would generally result in a single count, notwithstanding how many times the defendant "checked" doors/windows. However, in this case the Defendant was charged with an additional count for each time he tried to "unlawfully access" a given system - which was sometimes multiple times in the course of a minute (the proverbial "door/window check"). The point is the CFAA law is undeveloped and as a result the prosecutors are taking a mile with the inch they are given.
This is a bit counter-intuitive. In any type of sentencing hearing, if there is any discretion whatsoever, the number or counts/charges is always used an aggravating/mitigating factor. Actually the same goes for negotiating a plea deal, that is why I say 44 felony counts negotiated down to a single misdemeanor is an acknowledgement by the prosecutor something is wrong with the case.
>Incidentally: you probably can be charged with breaking and entering for checking your neighbors window locks.
Yes, but this would generally result in a single count, notwithstanding how many times the defendant "checked" doors/windows. However, in this case the Defendant was charged with an additional count for each time he tried to "unlawfully access" a given system - which was sometimes multiple times in the course of a minute (the proverbial "door/window check"). The point is the CFAA law is undeveloped and as a result the prosecutors are taking a mile with the inch they are given.
I think you're going to need to be more specific about the way you're saying multiple counts enhance sentences. Here's a relevant chunk of the sentencing guidelines:
http://www.ussc.gov/guidelines-manual/2012/2012-3d11
In any case, this "440 year" nonsense comes from taking the product of the maximum sentence for all counts, which is simply not how sentencing works, or anything like it.
http://www.ussc.gov/guidelines-manual/2012/2012-3d11
In any case, this "440 year" nonsense comes from taking the product of the maximum sentence for all counts, which is simply not how sentencing works, or anything like it.
Here is the US Sentencing Commission staff paper regarding Chapter3 PartD (Multiple Counts):
http://www.ussc.gov/sites/default/files/pdf/research/working...
Excerpt: "The Commission created the multiple count rules upon recognizing two important things. First, the Commission acknowledged that an offender who commits five offenses, for example, deserves more punishment than if he commits one, but not necessarily five times the otherwise applicable penalty. Consequently, the guidelines had to provide a mechanism for calculating incremental increases in punishment for multiple offenses. Second, if the guidelines based punishment on the number of offenses of which an offender was convicted, the Commission realized that formal charging decisions could have a tremendous impact on the resulting sentence. Consequently, the Commission had to create guidelines to limit the significance of formal charging decisions to ensure that similar defendants who engage in similar offense behavior will receive similar sentences."
In short, it supports both our positions, that multiple counts are taken into consideration for purposes of sentencing, but that the sentencing is stepped so that enhancement is not a 1 to 1 multiple. That said I did not mean to imply multiple counts enhance sentences, but that where there is discretion, multiple counts would be used as a aggravating factor.
http://www.ussc.gov/sites/default/files/pdf/research/working...
Excerpt: "The Commission created the multiple count rules upon recognizing two important things. First, the Commission acknowledged that an offender who commits five offenses, for example, deserves more punishment than if he commits one, but not necessarily five times the otherwise applicable penalty. Consequently, the guidelines had to provide a mechanism for calculating incremental increases in punishment for multiple offenses. Second, if the guidelines based punishment on the number of offenses of which an offender was convicted, the Commission realized that formal charging decisions could have a tremendous impact on the resulting sentence. Consequently, the Commission had to create guidelines to limit the significance of formal charging decisions to ensure that similar defendants who engage in similar offense behavior will receive similar sentences."
In short, it supports both our positions, that multiple counts are taken into consideration for purposes of sentencing, but that the sentencing is stepped so that enhancement is not a 1 to 1 multiple. That said I did not mean to imply multiple counts enhance sentences, but that where there is discretion, multiple counts would be used as a aggravating factor.
Your example makes me thing of something: what if we're all just less conscientious people online? Lots of people looked at the recent leaked celebrity pictures who wouldn't look into those peoples' windows. It's hard to argue that this is the result of the former being less wrong--the impact on the victim is identical. So it must be that people are just more willing to do "wrong" things on the internet. Should the law take this into account, especially when you're analogizing between the CFAA and breaking and entering, or cyberstalking and real stalking.
>--the impact on the victim is identical.
Physical proximity matters. A remote person who seeks out and looks at the photos is probably at least an inconsiderate jerk. A person who trespasses onto your property and peeps into your windows is not merely an inconsiderate jerk, but represents a potential threat to one's physical safety.
Physical proximity matters. A remote person who seeks out and looks at the photos is probably at least an inconsiderate jerk. A person who trespasses onto your property and peeps into your windows is not merely an inconsiderate jerk, but represents a potential threat to one's physical safety.
We're not just less conscientious online (though we certainly are that). Technology also makes unethical, immoral, and criminal decisions much easier to make, often so easily that we don't realize that we've done it unless we go out of our way to reflect on it.
That isn't unique to the Internet though. That goes both for other technologies like cars, guns or publishing and "protected" activities like running a business, being a journalist or a lawyer. Maybe most importantly there has to be a reasonable balance between protection (liability) and enforcement (punishment).
>Should the law take this into account...
Definitely not. Doing so is to much of a slippery slope when extended to drugs/alcohol or anything else that has the effect of lowering inhibitions or increasing the likeliness of committing a crime where one might otherwise not.
That said I agree with your point there is a blurring of the line. Whereas in your example, one would have to actively go to someones private property and peep through a window until they caught what they were looking for, versus the internet where a picture practically comes to you, your only act is clicking (tptacek touched on this...maybe could be termed "lowering the barrier to criminal behavior"). So while the victim impact is the same as you say (I might even argue online is worse because there is greater/continued victimization), the acts are different in nature. Blurring the line further is that culturally the internet pictures are normalized in the sense that they are practically marketed via traditional news, social media and late night comedians as things to see rather than condemned as acts of victimization.
Definitely not. Doing so is to much of a slippery slope when extended to drugs/alcohol or anything else that has the effect of lowering inhibitions or increasing the likeliness of committing a crime where one might otherwise not.
That said I agree with your point there is a blurring of the line. Whereas in your example, one would have to actively go to someones private property and peep through a window until they caught what they were looking for, versus the internet where a picture practically comes to you, your only act is clicking (tptacek touched on this...maybe could be termed "lowering the barrier to criminal behavior"). So while the victim impact is the same as you say (I might even argue online is worse because there is greater/continued victimization), the acts are different in nature. Blurring the line further is that culturally the internet pictures are normalized in the sense that they are practically marketed via traditional news, social media and late night comedians as things to see rather than condemned as acts of victimization.
That is not an apt analogy at all and frankly I wish people would stop going out of their way to analogize things. The Internet has been around for a while now, so we should be able to see things, or at least discuss them, for what they are.
It's totally apt. Why is peeping into someone's window bad? It's because it's a violation of their privacy, and even if they don't know that someone is watching them, peoples' reaction to the prospect of that happening is enough to justify a social norm to dissuade such conduct. The operative mechanics,[1] are the same when it comes to looking at leaked pictures online. The act of looking doesn't metaphysically cause injury. It's the knowledge or the prospect of people looking.
[1] And that's the value of analogies--not just to help us understand things that are novel in terms of the familiar, but to help us think about how things are similar or different, which helps us cut to the heart of why we think about a thing in a particular way.
[1] And that's the value of analogies--not just to help us understand things that are novel in terms of the familiar, but to help us think about how things are similar or different, which helps us cut to the heart of why we think about a thing in a particular way.
Peeping into someone's window is bad because it is trespassing and harassment.
Pictures do not passively "leak" online. Someone goes to the trouble of posting them. If that person didn't have permission to do so, they are the guilty party, not some random person who happens to see the picture, not even knowing who that picture is of.
This is the same as if the peeping tom snapped photos, and then shared them. You're not automatically a wrongdoer just because you see such a thing.
Pictures leaked before we had the Internet. Hello? We had scandals revolving around leaked photographs of famous people decades prior. Paparazzi also existed long before the Internet.
Pictures do not passively "leak" online. Someone goes to the trouble of posting them. If that person didn't have permission to do so, they are the guilty party, not some random person who happens to see the picture, not even knowing who that picture is of.
This is the same as if the peeping tom snapped photos, and then shared them. You're not automatically a wrongdoer just because you see such a thing.
Pictures leaked before we had the Internet. Hello? We had scandals revolving around leaked photographs of famous people decades prior. Paparazzi also existed long before the Internet.
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So if the victim doesn't know (can't be harassment), it's just trespassing, I.e. As bad as cutting across someone's lawn? I don't think your explanation captures the psychology here.
If anything sexualizing and dehumanizing celebrities is the cultural norm. Which isn't about the Internet per se. How cloud providers can have zero liability though...
[deleted]
As a result you have prosecutors doing what they do best, throwing everything at the wall and seeing what sticks. The problem with throwing everything at the wall is that defendants are more inclined to accept a reasonable plea rather than face the unknown.
This is a symptom of a much greater problem in our society: plea bargaining and the legislation built to take advantage of it. Plea bargaining is routinely used to extract guilty pleas from those too intimidated or otherwise unable to adequately defend themselves. It is profoundly unjust at its core. Its proponents tout it as a way to save money and reduce the burden on our courts. Since when has saving money been a fundamental pillar of justice?
If you ask me, we should do away with pleas altogether. All defendants would automatically be tried as if not guilty. Prosecution would likewise be compulsory. We would then have to rewrite most of our laws to reduce the ridiculous number of prosecutions that would result from the above changes. This would empower judges to do what they have been trained to do: discover the factual record and independently assess the case against the defendant.
This is a symptom of a much greater problem in our society: plea bargaining and the legislation built to take advantage of it. Plea bargaining is routinely used to extract guilty pleas from those too intimidated or otherwise unable to adequately defend themselves. It is profoundly unjust at its core. Its proponents tout it as a way to save money and reduce the burden on our courts. Since when has saving money been a fundamental pillar of justice?
If you ask me, we should do away with pleas altogether. All defendants would automatically be tried as if not guilty. Prosecution would likewise be compulsory. We would then have to rewrite most of our laws to reduce the ridiculous number of prosecutions that would result from the above changes. This would empower judges to do what they have been trained to do: discover the factual record and independently assess the case against the defendant.
"Eighteen of the 44 counts in Salinas’ indictment, for instance, were for cyberstalking an unnamed victim. But each of those charges was based on Salinas merely filling out a public contact form on the victim’s website with junk text. Every time he clicked “submit” had been counted as a separate case of cyberstalking."
This is obscene... There seems to be an utter lack of understanding by the prosecutors handling these cases.
This is obscene... There seems to be an utter lack of understanding by the prosecutors handling these cases.
> There seems to be an utter lack of understanding by the prosecutors handling these cases.
Not at all. They know exactly what they are doing.
It isn't about them not understanding the intent of the law. It is about them understanding how to use the blunt tool of that law's language to satisfy their own objectives.
Not at all. They know exactly what they are doing.
It isn't about them not understanding the intent of the law. It is about them understanding how to use the blunt tool of that law's language to satisfy their own objectives.
And if it goes to trial, the jury's likely to think in terms of compromising on the multitude of charges (rather than outright rejection), in which case the defendant still goes to prison for many years.
This is the problem I have with the contrarian's position in all of these threads. As usual, the answer is somewhere in the middle.
[deleted]
They understand just fine. Their job isn't to be reasonable or to serve justice. That should be the judges job but USA has moved too much power and control into police/prosecutor.
I agree.
A lot of prosecutors harbor a desire to one day become the District Attorney or Attorney General and they do whatever they can get away with to pad their stats.
A lot of prosecutors harbor a desire to one day become the District Attorney or Attorney General and they do whatever they can get away with to pad their stats.
Plea-bargaining goes against the fundament of innocent until proven guilty. It puts the requirement on the accused to know for certain that they can prove their innocence, to avoid the ludicrous sentence.
That is, there may be a motivation for pleading guilty even when you are not.
That is, there may be a motivation for pleading guilty even when you are not.
How exactly does plea-bargaining do that? Prosecutors don't determine sentences; judges do, and the sentences they choose are circumscribed by very detailed guidelines.
There was an article about a month ago that explained the asymmetry in the American court system.
https://news.ycombinator.com/item?id=8544775
https://news.ycombinator.com/item?id=8544775
Sobering read: "Plea Bargaining and Torture in light of the Aaron Swartz case" [1]
[1]: http://blogs.law.harvard.edu/philg/2013/01/15/plea-bargainin...
[1]: http://blogs.law.harvard.edu/philg/2013/01/15/plea-bargainin...
This read starts out and is premised on a falsehood:
An interview with Aaron Swartz‘s defense attorney reveals that, though the government was threatening Aaron with between 30 and 50 years in prison if he went to trial and was convicted.
Not only was Swartz not threatened with 30 years, but the prosecutors themselves threatened him with (an itself implausible) single-digit-year sentence. Swartz's own attorney thought it likely that even were he convicted, he wouldn't end up serving a custodial sentence.
It sucks when this case gets brought up, because the only way to get to the truth of it requires people to sound like they're defending Steve Heymann, the prosecutor in the case. There was a great deal wrong with the case. It's just that a 30-year sentence wasn't part of it.
An interview with Aaron Swartz‘s defense attorney reveals that, though the government was threatening Aaron with between 30 and 50 years in prison if he went to trial and was convicted.
Not only was Swartz not threatened with 30 years, but the prosecutors themselves threatened him with (an itself implausible) single-digit-year sentence. Swartz's own attorney thought it likely that even were he convicted, he wouldn't end up serving a custodial sentence.
It sucks when this case gets brought up, because the only way to get to the truth of it requires people to sound like they're defending Steve Heymann, the prosecutor in the case. There was a great deal wrong with the case. It's just that a 30-year sentence wasn't part of it.
The government was definitely threatening him with over 30 years, perhaps not privately, but it is not a falsehood.
"If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million." (http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR....)
Not pleading out would mean that the offer of a lower sentence is off the table, and the prosecutor would push for the threatened maximum sentence.
"If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million." (http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR....)
Not pleading out would mean that the offer of a lower sentence is off the table, and the prosecutor would push for the threatened maximum sentence.
No. That DOJ pres release is also false.
These may not have been the only charges and this may not have been the only case he was facing, e.g. WL's grand jury continues in secrecy to this day. Your assertions are narrowly quite correct, but may not be generally so.
That's a non-falsifiable argument.
[deleted]
Prosecutor using vaguely written laws to pile on charges to make the defense feel overwhelmed to force them into a plea deal for a lesser, but actually more accurate, charge? This is nothing new, it's been done for generations.
The sad thing is, this only truly affects the non-career criminals in our society. Career criminals, that these tactics are supposed to be for, will laugh in a prosecutor's face for suggesting such stupidity. It's how you give non-career criminals a new career option so they can laugh later.
The sad thing is, this only truly affects the non-career criminals in our society. Career criminals, that these tactics are supposed to be for, will laugh in a prosecutor's face for suggesting such stupidity. It's how you give non-career criminals a new career option so they can laugh later.
>>>> Career criminals, that these tactics are supposed to be for, will laugh in a prosecutor's face for suggesting such stupidity
I'm pretty sure the three strikes law in California was enough to scare any career criminal into co-operating with prosecutors. At least until recently when changes have been proposed.
http://ivn.us/2012/11/09/changes-in-three-strikes-law-reform...
"California’s controversial three-strikes law mandated that anyone with two convictions on their record could be sentenced to life upon committing their third felony of any type. This includes theft, robbery, or burglary and up until 2011, could be applied legally to shoplifting. Passed in 1994 in response to the kidnapping of Polly Klaas by a repeat offender, California’s three-strikes law was the most unforgiving interpretation of the law in the country. Up until Tuesday, California was the only state to demand life-sentencing upon a third felony, regardless of whether or not that crime was violent."
I'm pretty sure the three strikes law in California was enough to scare any career criminal into co-operating with prosecutors. At least until recently when changes have been proposed.
http://ivn.us/2012/11/09/changes-in-three-strikes-law-reform...
"California’s controversial three-strikes law mandated that anyone with two convictions on their record could be sentenced to life upon committing their third felony of any type. This includes theft, robbery, or burglary and up until 2011, could be applied legally to shoplifting. Passed in 1994 in response to the kidnapping of Polly Klaas by a repeat offender, California’s three-strikes law was the most unforgiving interpretation of the law in the country. Up until Tuesday, California was the only state to demand life-sentencing upon a third felony, regardless of whether or not that crime was violent."
That type of law is completely different than the practice of piling on charges to cause a reaction from the defense.
Most cases of piling on charges for a non-career criminal would be for posturing purposes.
Most cases of threatening third strike on career criminals would be for investigation purposes. Or simply, to get a career criminal off the streets.
Most cases of piling on charges for a non-career criminal would be for posturing purposes.
Most cases of threatening third strike on career criminals would be for investigation purposes. Or simply, to get a career criminal off the streets.
I believe there should be a movement to pass a law to stop all plea bargaining, and require all criminal proceedings to go to trial. It would force the criminal justice system to only pursue solid cases, prioritize for the worst crimes, and reduce our bloated prison system, and restore our right to a fair trial.
It would grind the criminal justice system to a complete halt. The impact would fall almost entirely on the accused, who would sit in holding cells for years waiting for trials, which would be even more perfunctory as a result of the immense pressure that would be put on public defender offices as a result of conducting pointless trials for open-and-shut cases.
Speaking as a former public defender, the opposite would be true. Defendants are entitled to speedy trials. If a case cannot proceed to trial within the specified time frame (usually 60 days from charging, unless the defendant waives the right to a speedy trial, but it varies by state), then the charges are dismissed.
I was lucky enough to participate in a plea bargaining strike organized by the public defender and criminal defense attorneys bar in response to the DA refusing to negotiate for low-level (non-dealing) drug offenses. As part of the strike, our defendants also refused to waive their rights to speedy trials. Almost 100 additional cases were scheduled for trial during a 1 week period, with many more queued up in the weeks beyond. Despite utilizing every DA and intern at its disposal, and opening up shuttered courtrooms, the DA was wholly unable to staff the sheer volume of cases. On the 3rd day it became clear that fewer than 25 cases would make it to trial by the deadline, and the DA capitulated.
I was lucky enough to participate in a plea bargaining strike organized by the public defender and criminal defense attorneys bar in response to the DA refusing to negotiate for low-level (non-dealing) drug offenses. As part of the strike, our defendants also refused to waive their rights to speedy trials. Almost 100 additional cases were scheduled for trial during a 1 week period, with many more queued up in the weeks beyond. Despite utilizing every DA and intern at its disposal, and opening up shuttered courtrooms, the DA was wholly unable to staff the sheer volume of cases. On the 3rd day it became clear that fewer than 25 cases would make it to trial by the deadline, and the DA capitulated.
Defenders are theoretically entitled to speedy trials, but in reality can be held for years and years without trial based on procedural delays, and, in particular, based on the court's scheduling problems:
http://www.newyorker.com/magazine/2014/10/06/law-3
And a huge flood of criminal trials would certainly not make individual criminal trials any more rigorous, or juries any more likely to carefully weigh evidence.
Finally: people on HN royally fucking hate hearing this, but it's true: most criminal defendants are guilty. We hear about newsworthy cases where there's enough of an interesting narrative to write an interesting lede graf. But for every one of those, there are 100 where the details are completely uninteresting: the defendant was found in his living room with bloody knuckles standing next to his unconscious spouse.
A plurality of Cook County inmates are in for domestic violence; the majority are incarcerated for violent crime. So the idea that we'd have a fairer system by ensuring that fewer defendants actually faced charges is... suspect.
The injustices in our criminal law system need to be fixed at their source: the law needs to be changed to ratchet down sentences. This is an uncontroversial point. There is broad agreement that sentences were escalated to untenable levels during the nationwide freak-out over crime from the late 1960s through the mid 1990s. That problem needs to be fixed; no cosmetic change will improve our system until it is.
http://www.newyorker.com/magazine/2014/10/06/law-3
And a huge flood of criminal trials would certainly not make individual criminal trials any more rigorous, or juries any more likely to carefully weigh evidence.
Finally: people on HN royally fucking hate hearing this, but it's true: most criminal defendants are guilty. We hear about newsworthy cases where there's enough of an interesting narrative to write an interesting lede graf. But for every one of those, there are 100 where the details are completely uninteresting: the defendant was found in his living room with bloody knuckles standing next to his unconscious spouse.
A plurality of Cook County inmates are in for domestic violence; the majority are incarcerated for violent crime. So the idea that we'd have a fairer system by ensuring that fewer defendants actually faced charges is... suspect.
The injustices in our criminal law system need to be fixed at their source: the law needs to be changed to ratchet down sentences. This is an uncontroversial point. There is broad agreement that sentences were escalated to untenable levels during the nationwide freak-out over crime from the late 1960s through the mid 1990s. That problem needs to be fixed; no cosmetic change will improve our system until it is.
Why, it's almost as if innocent until proven guilty is not a bedrock principle of our criminal justice system. That it would be better to lock up one innocent to prevent 100 guilty going free.
There's really no discussion about criminal justice that you can't shut down by invoking "innocent until proven guilty" and taking the word "proven" in its mathematical sense.
I meant the "beyond a reasonable doubt, in a court of law" sense. Presumption of guilt is a very treacherous path to advocate.
Not if the 6th-amendment right to a speedy trial was taken seriously. Then prosecutors would have to prioritize, since they couldn't possibly try everyone. Low-level "criminals" like pot smokers and prostitutes would (hopefully) walk. Our legal system has denial-of-service attacked itself. Two million in prison and still the line is out the door and around the building. We've got so many laws that even our huge system can't handle the load. If we as a society really want all these so-called crimes prosecuted, we'll have to pony up to guarantee each defendant a speedy trial. At least that was the intent of the 6th, as I see it.
The idea that our jails are full of pot-smokers and prostitutes appears to be totally unsupported by the facts. Each state keeps statistics on the crimes for which its incarcerated population is held. Look up the stats for your state. I think you're going to find that it's not prostitutes keeping the numbers up.
You have roughly the same level of cynicism I do, which is to say, I don't think it would do anything to reduce the number of people charged for spurious things, just either cause a massive expansion, or a massive slowdown of the justice system.
It wouldn't force them to do anything - there's already a backlog of several years in many places. Some people awaiting trial are released because they can't be provided their "right to a speedy and public trial", but the exact length of "speedy" isn't defined in the constitution, so they still end up waiting in holding cells or house arrest for years.
I don't thing we should stop all plea bargaining, but we do need to drastically overhaul how plea bargaining is handled. We need a judge involved, we need all the evidence available to the defendant, and we need reduce the ability for prosecutors to set 'ticking clocks' limiting the availability of plea bargain offers to allow defense attorneys time to evaluate the case..
The power that prosecutors have is unbelievable, especially when it comes to using the plea bargain. Here's a fantastic look at the history of plea bargains and how they get used to bully people into pleading guilty when they aren't.
http://www.nybooks.com/articles/archives/2014/nov/20/why-inn...
http://www.nybooks.com/articles/archives/2014/nov/20/why-inn...
What's a greater form of harassment?
a) Submitting garbage text via a Contact Us form up to (and including) 18 times, or
b) Threatening someone with 180 years in jail for those messages and then settling for a $10,000 fine?
Answers via my Contact Us form please!
a) Submitting garbage text via a Contact Us form up to (and including) 18 times, or
b) Threatening someone with 180 years in jail for those messages and then settling for a $10,000 fine?
Answers via my Contact Us form please!
[deleted]
After all, Ekeland argues, Salinas has already been pilloried in the local and national press, which touted the early charges against him, but ignored the fact that they were dropped.
This is what incentivizes the prosecutors to a large extent. It's a political office (even in the case of US attorneys who are appointees, they're appointed by the administration, and that job is often a stepping stone towards running for a state AG job or some other political office) and the sad fact is that in many parts of the country there are more people who want to throw the book at people they perceive criminals than there are people concerned with proportionality or preserving the rights of defendants. In fact, most people are complete hypocrites about legal process and will cheerfully make completely opposite arguments depending who is int he hot seat and why.
So there's a clear incentive for prosecutors to paint anyone they catch as some Moriarty-like crime lord and of course that makes great news copy - big number, cooperative prosecutor, astonished neighbors saying they never realized they were living next to a crime lord, all heavily edited for maximum emotional impact within the tight constraints of the 'Action News' format (http://en.wikipedia.org/wiki/Action_News - the reason local TV news in the US is so awful is because it's manufactured on a template rather than crafted in response to the facts of the story).
And of course, there's no requirement to report the much less interesting (to most people) outcome of someone having their charges downgraded to a few months in jail and a fine. Because of the first amendment it's difficult for defendants to keep their name out of the media pending the outcome of a trial (whenever courts put anything under seal news organizations tend to file suit to gain access while mouthing platitudes about 'the public's right to know') and there's no way to compel the media to give equally prominent coverage to defendants whoa re acquitted, exonerated, have charges downgraded and so on.
This is what incentivizes the prosecutors to a large extent. It's a political office (even in the case of US attorneys who are appointees, they're appointed by the administration, and that job is often a stepping stone towards running for a state AG job or some other political office) and the sad fact is that in many parts of the country there are more people who want to throw the book at people they perceive criminals than there are people concerned with proportionality or preserving the rights of defendants. In fact, most people are complete hypocrites about legal process and will cheerfully make completely opposite arguments depending who is int he hot seat and why.
So there's a clear incentive for prosecutors to paint anyone they catch as some Moriarty-like crime lord and of course that makes great news copy - big number, cooperative prosecutor, astonished neighbors saying they never realized they were living next to a crime lord, all heavily edited for maximum emotional impact within the tight constraints of the 'Action News' format (http://en.wikipedia.org/wiki/Action_News - the reason local TV news in the US is so awful is because it's manufactured on a template rather than crafted in response to the facts of the story).
And of course, there's no requirement to report the much less interesting (to most people) outcome of someone having their charges downgraded to a few months in jail and a fine. Because of the first amendment it's difficult for defendants to keep their name out of the media pending the outcome of a trial (whenever courts put anything under seal news organizations tend to file suit to gain access while mouthing platitudes about 'the public's right to know') and there's no way to compel the media to give equally prominent coverage to defendants whoa re acquitted, exonerated, have charges downgraded and so on.
I wish Aaron Swartz had realized this. Prosecutors like to bluster and pile on charges. In the end the bargain is more reasonable. Professor Lessig said such in the Swartz bioptic earlier this year. Such a loss of talent.
Aaron Swartz had excellent counsel and knew that press-release sentencing had nothing to do with what he actually faced.
This is the way prosecution works in the US - charging with heaps of bullshit felonies with the aim to scare the defendant, forcing him to plead guilty in exchange for minimum sentence. The defendants have to consider the risk that some of the felonies might stick (e.g. because of general ignorance of people to technology), and the expenses for the defence. And many actually choose to plead guilty despite being innocent ...
Just look at the percentage of "pleaded guilty" cases, that completely bypass the judicial system. The prosecutors can claim how they convicted another dangerous haxxxor, the general public applauds and the popularity helps them eventually get into Congress, important post or whatever.
This is not really all that different from how patent trolls work - they usually require payments that are slightly lower than the expected cost of defence (which may or may not be successful, and you'll have to pay for it no matter what the outcome is). So most companies do the math and simply pay to make them go away.
Also, it's exactly the issue that killed Aaron Swartz ...
Just look at the percentage of "pleaded guilty" cases, that completely bypass the judicial system. The prosecutors can claim how they convicted another dangerous haxxxor, the general public applauds and the popularity helps them eventually get into Congress, important post or whatever.
This is not really all that different from how patent trolls work - they usually require payments that are slightly lower than the expected cost of defence (which may or may not be successful, and you'll have to pay for it no matter what the outcome is). So most companies do the math and simply pay to make them go away.
Also, it's exactly the issue that killed Aaron Swartz ...
In Canada, you can kill someone and only get six years. You can easily find cases of this by searching CBC news stories for murder and "six years".
For instance, a few years ago, some dude in Alberta killed a foreign worker: a welder from Thailand. That guy's life was worth six years in jail.
http://www.cbc.ca/news/canada/edmonton/killer-of-thai-welder...
I'm also appalled by that someone who fills a form with garbage and clicks Submit is even called a "hacker", let alone being charged with anything.
For instance, a few years ago, some dude in Alberta killed a foreign worker: a welder from Thailand. That guy's life was worth six years in jail.
http://www.cbc.ca/news/canada/edmonton/killer-of-thai-welder...
I'm also appalled by that someone who fills a form with garbage and clicks Submit is even called a "hacker", let alone being charged with anything.
> We've got enough on you right now to put you away for the rest of your life, plus 30 years
> Plus 30 years? That doesn't make any sense. Why not give me life plus a thousand years?
> Keep pushing.
- Dilbert S02E12 "The Virtual Employee"
> Plus 30 years? That doesn't make any sense. Why not give me life plus a thousand years?
> Keep pushing.
- Dilbert S02E12 "The Virtual Employee"
When a serious legal topic comes up here on HN, I start missing Groklaw again.
when a prosecutor oversteps their authority like this, they should be punished in some way.
At some point, this abuse must cross some line which I will and perhaps the law should define as extortion.
If the is no consistency nor comprehensibility and predictability to the law, it is no longer law. It is merely capricious authoritarian behavior.
If the is no consistency nor comprehensibility and predictability to the law, it is no longer law. It is merely capricious authoritarian behavior.
The use of kitchen-sink charges and draconian sentences to coerce confessions has all the same moral and practical difficulties as the use of torture for the same ends.
If you want to commit crimes with impunity, become a banker. Otherwise, you're just needed fodder for the corporate prison system.
> “If filling a website submission form a lot of times is cyberstalking, about half of Twitter is going to jail,” Ekeland says.
We can only hope!
We can only hope!
[deleted]
Salinas' defense attorney is named "Tor Ekeland."
Ouch that is a lot of years! Kids don't do hacks.
what is the point of such a long sentencing? 440 years?
RealGeek(3)
The article states that he was scanning the website for vulnerabilities. He wanted to do harm.. My assumption is that he was looking for exploits, perhaps a XSS in the comments section (filling out comments with junk text) or he was just trying to DoS the site.
Had he found a vulnerability in the site, what do you think he would have done? He doesn't seem to be a white hat, but does the county have a vulnerability reporting policy? (my guess is no.)
I equate what he did with a burglar snooping around a house and checking for an open door or window to break in.
I think the laws they used were wrong--but it appears he was up to no good.
Had he found a vulnerability in the site, what do you think he would have done? He doesn't seem to be a white hat, but does the county have a vulnerability reporting policy? (my guess is no.)
I equate what he did with a burglar snooping around a house and checking for an open door or window to break in.
I think the laws they used were wrong--but it appears he was up to no good.
it appears he was up to no good
The emphasis is on "appears". You can't convict anyone on (your personal) "suspicions".
The emphasis is on "appears". You can't convict anyone on (your personal) "suspicions".
No, you can't. But I haven't seen the evidence. It isn't legal to scan a website for vulns without permission. I assume the have evidence that he did scan the site.
"It isn't legal to scan a website for vulns without permission."
This isn't true.
I do it quite a bit, so do other people who have no malicious intentions. Some professionals do it quite publicly, and even blog about it.
Check out this guy, not just scanning for, but actually exploiting shellshock to execute commands on servers he doesn't own, internet-wide:
http://blog.erratasec.com/2014/09/bash-shellshock-scan-of-in...
Are we better off with him in prison?
This isn't true.
I do it quite a bit, so do other people who have no malicious intentions. Some professionals do it quite publicly, and even blog about it.
Check out this guy, not just scanning for, but actually exploiting shellshock to execute commands on servers he doesn't own, internet-wide:
http://blog.erratasec.com/2014/09/bash-shellshock-scan-of-in...
Are we better off with him in prison?
You're taking a risk when you do this. Not many people go after these types of scans, but you're basically doing it without permission. It's a grey area, be careful. If your scans cause an issue for the server, either through slowing the system down, or causing a web server to crash, you've now broken a law.
> You can't convict anyone on (your personal) "suspicions"
That's true, but he can reserve his outrage for people who didn't appear to be up to no good.
That's true, but he can reserve his outrage for people who didn't appear to be up to no good.
http://www.popehat.com/2013/02/05/crime-whale-sushi-sentence...
Most importantly: when you are charged with many counts of the same crime, the DOJ likes to write press releases suggesting your sentence is the product of the maximum sentence of each count. But that is not how sentencing works in reality. Reality works more like this: the judge uses sentencing guidelines to figure out a sentence for the "worst" single count you're charged with, and that's how much time you serve.