TWO RECENT HACKTIVIST TRIALS HAVE DANGEROUS IMPLICATIONS FOR A FREE INTERNET
In 2012 the cases of Jeremy Hammond and Andrew Aurenheimer were yet to be decided. Questions abounded about how the law would be applied to these two hacktivist test cases. The below article by Andrew Blake spoke to the zeitgeist of 2012 with perfection. The full article can be read here: http://buffalobeast.com/404-error-justice-not-found/. Below are only my quotes from the story.
by Andrew Blake
Twice last week, the justice system heard cases related to hacking, and in both instances, information sharing and cyberlaw were dealt a seriously heavy-handed blow. The government was the bully here, and the dorky little hacker had his glasses knocked square off his face.
After details from both the [Andrew “weev”] Auernheimer and Hammond cases came in Tuesday evening, I called Jay Leiderman, a defense attorney from Southern California who has represented a fair share of alleged computer criminals, including some aligned with the Anonymous movement that spawned LulzSec. When Leiderman picked up the phone, he was just finishing a day of lawyering near Los Angeles and had barely heard any news from the East Coast yet.
“Hammond was told he can’t do house arrest and could be put away for 39 years to life,” I told him. He paused. For a while.
Leiderman suggests there’s no way in hell that Hammond will be put away for life for sharing the Stratfor data, but says that the way his and Auernheimer’s cases were handled say a lot about the justice system.
“The way the government is reading these laws [the computer fraud and abuse act or CFAA] really makes about all behavior criminal,” Leiderman tells me.
In the case of Auerenheimer, Leiderman says, “He didn’t access a protected computer yet he was convicted of it.”
He didn’t access a protected computer yet he was convicted of it
“It is clearly a situation of them striking while the iron is still ambiguous,” he says. For right now, there is a real lack of well-defined cyberlaw.
“At some point the federal courts are going to have a chance to consider these issues and realize the prosecutions that they are currently undertaking are in fact what the laws were designed to prevent,” he says. “But before that happens, the federal government is intensifying their pound of flesh. They are trying to scare everyone and make them think that every time they punch upon that keyboard that they are risking 15 years in federal prison. And for as long as that, it’s nothing but a scare tactic and one that ultimately can’t survive in an era of internet freedom.”
“I do think that Hammond’s prosecution is 100 percent political, not withstanding whatever actions he may have taken,” Leiderman says.
“I think we’ve come to a place in America where we no longer value the political dissident. Where speech that is contrary to government is no longer seen as a valuable thing in society,” he says.
“The way that speech works and the way that free speech works is that if an idea is too radical and if an idea is too far flung and too far fetched—like dumpster diving for your food—it’s going to be rejected by the people in the marketplace of ideas, and that’s the way the marketplace of ideas works. But when it’s the government telling us, ‘Nah, this idea is no good. We need to reject it,’ then it’s no longer free choice in the marketplace of ideas. We’re being told what to think and that’s where it gets scary.”
“It is scary when you put it that way,” I told Leiderman.
“If recent events have taught us anything it’s that Congress is absolutely useless and is not likely to do anything on any issue at any time,” says Leiderman. “They are the most impotent band of individuals on the planet, so we need to leave it to the court to let this shape out. And you know, the courts don’t suffer fools lightly. The courts have historically done a reasonably good job in protecting our freedoms and narrowly circumscribing crimes such that bold behavior isn’t criminal. And the way the government is reading these laws really makes about all behavior criminal.”
For now, says Leiderman, interpretation in regards to computer crimes is weak. While it’s arguable that the justice system will never keep up with the pace of technology, at this rate it could be too late before laws are finally structured in such a way that Hammond and Auernheimer aren’t looking at guaranteed, asinine sentences.
This isn’t what these laws were meant for
Meanwhile, says Leiderman, the state of affairs is ludicrous. “They’ve made a rule so broad, so amorphous and so ambiguous,” he says, “that reasonable people can’t ascertain what conduct is in fact covered.”
“We’re at a point in the history of these prosecutions where the government can literally charge anyone for anything and they seem to be doing that in a very targeted manner. They are going after people they don’t like for speech that they don’t like and they are going to get these convictions up until the point where courts start telling them, ‘Stop it. This isn’t what these laws were meant for.’”
That’s assuming the people have a voice long enough to make that opinion heard.