MESSAGE
| DATE | 2013-01-18 |
| FROM | Ruben Safir
|
| SUBJECT | Subject: [NYLXS - HANGOUT] Fwd: Re: [conspire] Post Mortum legal explosion
|
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Date: Fri, 18 Jan 2013 13:17:21 -0500
From: Ruben Safir
To: Rick Moen
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Cc: conspire-at-linuxmafia.com
Subject: Re: [conspire] Post Mortum legal explosion
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>
> This does not address the Swartz case at all -- which it obviously could
> not, Robyn Hagan Cain of FindLaw published it on July 27, 2012.
> Moreover, the non-Swarz case it discussed (WEC LLC v. Miller) was
> _solely_ a CFAA case, not one alleging infringement also of three other
> major categories of computer-related crime.
>
> However, what is most damning is the grounds on which the Fourth Circuit
> affirmed the lower court's dismissal of the CFAA charge: The Court
> found the statute inapplicable because defendent Miller was an employee
> of plaintiff WEC LLC at the time, not an outside computer intruder
> ('hacker').
>
> So, the Fourth Circuit's ruling in this matter is on grounds completely
> inapplicable to the recently dropped Swartz case.
>
No, I disagree. The court specifically said that it will not extend the law to
a whole class of cases for which it would criminalize individuals. It is not
narrowly confined to the case of an employee.
>
> > http://blogs.findlaw.com/supreme_court/2012/08/doj-wont-ask-for-supreme-court-review-of-cfaa-hacking-decision.html
>
> Likewise does not address the Swartz case at all.
>
> Ninth Circuit's dismissal of a CFAA charge in U.S. v. Nosal was on
> grounds essentially identical to the Fourth Circuit's in WEC LLC v.
> Miller: David Nosal prevailed on his former coworkers at Korn/Ferry, an
> executive search firm, to get inside information for him. So, once
> again, employee data access, not an outside computer intruder
> ('hacker').
>
Again, this is not limited to an employee. BTW, it directly relates to the
Swartz case as the employees had permissive access to the systems in question
despite contracual restrictions, which is exactly the case with Aaron.
>
> > http://blogs.hbr.org/cs/2013/01/aaron_swartzs_crime_and_the_bu.html
> > from Harvard Business School
>
> Likewise does not disagree in any way with Orin Kerr's 'Part 1: The Law'
> that we were discussing.
By this article and authors perspective, and he is nto a lawyer but a business
ethics expet, there was no criminal activity worthy of felony charges, while
criminal activity that is real and damaging (life taking) has not been given
even a remotely similar punishment, unlining that proposed punishments are
legally and ethically absurd. I agree that this does not tread on the original
posting.
>
> > http://www.slate.com/articles/technology/technology/2013/01/aaron_swartz_suicide_prosecutors_have_too_much_power_to_charge_and_intimidate.html
>
> Likewise does not disagree in any way with Orin Kerr's 'Part 1: The Law'
> that we were discussing.
>
Really? That depends how you look at it. This article points out the reasons
why the prosecution simply didn't have the law to prosecute and the specific
reasons why. And if I'm not mixing up articles, it specifically disagrees on
the actually facts of the case. Where as Orin interprets Aarons behavior
and breaking into a closet, and using unauthorized access, this article
outlines the multiple ways this conculsion is fault, especial with regard to
the forensic evidence that was found upon investigation.
>
> > From the LA Times:
> >
> > http://www.latimes.com/news/obituaries/la-me-0113-aaron-swartz-20130113,0,5232490.story
>
> Likewise does not disagree in any way with Orin Kerr's 'Part 1: The Law'
> that we were discussing -- except in the brief citation of a vague
> alleged opinion by unidentified persons of unclear relevance:
>
> Some legal experts believe the charges are unfounded since Swartz
> had been a university fellow, which gave him the right to access
> the articles.
>
> The unidentified 'legal experts' would, in any event, be mistaken for
> reasons easily identifiable by actually bothering to read various parts
> of http://www.jstor.org/page/info/about/policies/terms.jsp including, to
> pick an example at random, Terms and Conditions for Use for Journals,
> Plants, GIS Data, Select Other Content Types, and Data for Research
> sections 3(f) and 3(h).
>
If I'm not wrong, those terms were added AFTER the Swartz activities and
furthermore, there are multiple sources, including the 4th and 9th court which
are saying that such terms and conditions are not actionable for criminal
prosecution under similar conditions.
>
> > They could be lieing, of course since there is no source quoted.
>
> I'm going to go with 'mistaken'. Melodrama is usually bullshit.
>
> > This is also worth a review and discusses both the legal and the
> > ethical issues
> > http://crln.acrl.org/content/72/9/534.full
>
> Likewise does not disagree in any way with Orin Kerr's 'Part 1: The Law'
> that we were discussing.
>
>
> > http://www.bloomberg.com/news/2013-01-17/the-overzealous-prosecution-of-aaron-swartz.html
>
> Likewise does not disagree in any way with Orin Kerr's 'Part 1: The Law'
> that we were discussing.
This starts to get redundant...
>
>
> > so...
> >
> > While Kerr sat down and gave a long and detail writing of his
> > analysis, his is not a whole accepted opinion.
>
> You didn't FRELLING BOTHER TO READ, did you?
>
I had to use my reading glasses and I inhernetly have emotional disorders that
prevent me from reading what i don't want to hear, but YES I read everything
I posted.
> You seem to have just completely ignored my extremely painstaking and
> careful characterisation, gone and Web-searched for a couple of minutes,
That isn't what the time stamps tell me. I spent, I believe, about 2 hours
putting that message together, and a few days of reading those souces.
I didn't dump in there the large number of legal opinions that said the
prosecution was highly reluctant to go to trial because they were quite
certain that a jury in Boston would refuse conviction all together.
Personally, I'm not so certain of such rash predictions.
>
> This is a really bad use of my and your time.
Yeah - I'm great at wasting time instead of excersizing like I should :(
>
> > >>Where was there a applicable case like this? This case is unique, FWIW
> > >Reference was to all other past cases under 18 U.S.C. 1343 (wire fraud),
> > >18 U.S.C. 1030(a)(4) (computer fraud), 18 U.S.C. 1030(a)(2)(C) and 18
> > >U.S.C. 1030(c)(2)(B)(iii) (unauthorised access), and 18 U.S.C.
> > >1030(a)(5)(B) and 1030(c)(4)(A)(i)(I) & (VI) (computer damage).
> >
> > Which one involves a political activist?
>
> Your question is completely irrelevant. It's obvious that you were not
> bothering to pay attention. Go back and try again.
>
It is completely relavent. Courts give a large amount of discretion to
actions of political activists as a form of political speach in actions
which generally do no harm to the public good. Even the blocking of the
Brooklyn Bridge by the Occupation Wall Street crowd was handed with kids gloves
by the courts.
The CEO of Brooklyn has Now Spoken...
Have a Good Shabbos.
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