[conspire] Post Mortum legal explosion

[Ruben Safir]

On 01/17/2013 07:42 PM, Rick Moen wrote:
> Quoting Ruben Safir (ruben at mrbrklyn.com):
>
>> He is not the only legal opinion and there are many who disagree.
> I'm underwhelmed by your data.  (In short, you are posting bullshit.)


http://www.wbur.org/2013/01/16/gertner-criticizes-ortiz-swartz


also

http://blogs.findlaw.com/fourth_circuit/2012/07/fourth-circuit-refuses-to-apply-cfaa-to-employee-data-breach.html

"This week, the Fourth Circuit Court of Appeals affirmed that decision.

The CFAA is primarily a criminal statute designed to combat hacking 
<http://caselaw.findlaw.com/us-4th-circuit/1248473.html>. Nevertheless, 
it permits a private party "who suffers damage or loss by reason of a 
violation of [the statute]" to bring a civil action "to obtain 
compensatory damages and injunctive relief or other equitable relief." 
Although proof of at least one of five additional factors is necessary 
to maintain a civil action, a violation of any of the statute's 
provisions exposes the offender to both civil and criminal liability.

A person can be liable under the CFAA if he:

 1. Intentionally accesses a computer without authorization or exceeds
    authorized access, and thereby obtains ... information from any
    protected computer.
 2. Knowingly and with intent to defraud, accesses a protected computer
    without authorization, or exceeds authorized access, and by means of
    such conduct furthers the intended fraud and obtains anything of value.
 3. Intentionally accesses a protected computer without authorization,
    and as a result of such conduct, recklessly causes damage, or causes
    damage and loss.

Here, WEC alleged that Miller and Kelley violated the Act because they 
were not permitted to download confidential and proprietary information 
to a personal computer under WEC's policies, and they breached their 
fiduciary duties by doing so. Based on that breach, they either lost all 
authorization to access the confidential information or exceeded their 
authorization.

WEC sought to hold Arc liable because it claimed that Miller and Kelley 
undertook this conduct as Arc's agents.

The defendants moved for a 12(b)(6) dismissal, and the district court 
held that WEC failed to state a claim for which the CFAA provided 
relief. The Fourth Circuit Court of Appeals affirmed the district court, 
noting that Miller and Kelley didn't hack WEC's system. (Remember, the 
CFAA was created to combat hacking, not an employee data breach.)

Judge Henry Floyd, writing for the three-judge panel, said, "We are 
unwilling to contravene Congress's intent by transforming a statute 
meant to target hackers into a vehicle for imputing liability to workers 
who access computers or information in bad faith, or who disregard a use 
policy. Providing such recourse not only is unnecessary, given that 
other legal remedies exist for these grievances, but also is violative 
of the Supreme Court's counsel to construe criminal statutes strictly 
<http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/520/259.html>.""


http://blogs.findlaw.com/supreme_court/2012/08/doj-wont-ask-for-supreme-court-review-of-cfaa-hacking-decision.html

"

In April, the Ninth Circuit Court of Appeals dismissed a federal hacking 
charge 
<http://blogs.findlaw.com/ninth_circuit/2012/04/ninth-circuit-saves-distracted-workers-from-federal-prosecution.html> 
against a California man, finding that the Computer Fraud and Abuse Act 
(CFAA), which outlaws computer use that "exceeds authorized access," was 
inapplicable to the case. For months, we've wondered whether the Justice 
Department would appeal that decision to the Supreme Court.

This week, we got our answer. The DOJ has decided not to petition for 
Supreme Court review 
<http://www.wired.com/threatlevel/2012/08/computer-fraud-supreme-court/>, reports 
/Wired/."



http://blogs.hbr.org/cs/2013/01/aaron_swartzs_crime_and_the_bu.html
from Harvard Business School


http://www.slate.com/articles/technology/technology/2013/01/aaron_swartz_suicide_prosecutors_have_too_much_power_to_charge_and_intimidate.html


The Author wrote for Yale Law review:

"Bazelon was raised in Philadelphia and attended Germantown Friends 
School <http://en.wikipedia.org/wiki/Germantown_Friends_School>.^[27] 
<http://en.wikipedia.org/wiki/Emily_Bazelon#cite_note-27> She graduated 
from Yale College <http://en.wikipedia.org/wiki/Yale_College> in 1993 
and from Yale Law School <http://en.wikipedia.org/wiki/Yale_Law_School> 
in 2000 and was an editor of the /Yale Law Journal 
<http://en.wikipedia.org/wiki/Yale_Law_Journal>/.^[1] 
<http://en.wikipedia.org/wiki/Emily_Bazelon#cite_note-yal-1> She was 
selected for and participated in the Dorot Fellowship in Israel from 
1993-94.^[28] <http://en.wikipedia.org/wiki/Emily_Bazelon#cite_note-28> 
After law school she worked as a law clerk 
<http://en.wikipedia.org/wiki/Law_clerk> for Judge Kermit Lipez 
<http://en.wikipedia.org/wiki/Kermit_Lipez> of the United States Court 
of Appeals for the First Circuit 
<http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_First_Circuit>. 


Bazelon is the granddaughter of David L. Bazelon 
<http://en.wikipedia.org/wiki/David_L._Bazelon>, formerly a judge on the 
United States Court of Appeals for the District of Columbia Circuit 
<http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_District_of_Columbia_Circuit>,^[29] 
<http://en.wikipedia.org/wiki/Emily_Bazelon#cite_note-inbrief-29> and 
second cousin twice removed <http://en.wikipedia.org/wiki/Cousin> of 
feminist Betty Friedan 
<http://en.wikipedia.org/wiki/Betty_Friedan>.^[30] 
<http://en.wikipedia.org/wiki/Emily_Bazelon#cite_note-30> She lives in 
New Haven <http://en.wikipedia.org/wiki/New_Haven>, Connecticut 
<http://en.wikipedia.org/wiki/Connecticut> with her husband, Paul Sabin, 
an assistant professor of history at Yale, and their sons, Eli and 
Simon.^[5] 
<http://en.wikipedia.org/wiki/Emily_Bazelon#cite_note-brand-5> ^[31] 
<http://en.wikipedia.org/wiki/Emily_Bazelon#cite_note-31> ^[32] 
<http://en.wikipedia.org/wiki/Emily_Bazelon#cite_note-32> ^[33] 
<http://en.wikipedia.org/wiki/Emily_Bazelon#cite_note-33> ^[34] 
<http://en.wikipedia.org/wiki/Emily_Bazelon#cite_note-34>" ~~wikipedia

^

^From the LA Times:

^http://www.latimes.com/news/obituaries/la-me-0113-aaron-swartz-20130113,0,5232490.story

^" Some legal experts believe the charges are unfounded since Swartz had 
been a university fellow, which gave him the right to access the articles."

They could be lieing, of course since there is no source quoted.


This is also worth a review and discusses both the legal and the ethical 
issues
http://crln.acrl.org/content/72/9/534.full


http://www.bloomberg.com/news/2013-01-17/the-overzealous-prosecution-of-aaron-swartz.html
By Lawyer Stephen L Carter 
<http://www.bloomberg.com/view/bios/stephen-carter/>:

Stephen L. Carter is a professor of law at Yale, where he teaches 
courses on contracts, professional responsibility,



so...

While Kerr sat down and gave a long and detail writing of his analysis, 
his is not a whole accepted opinion.


>
>> 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?

> I'm sure Swartz's case was 'unique' in many ways, but none of them
> relevant to the question.

That would be your opinion.  None involve the taking of data from an 
opened accessed computer by a political activist who never even released 
the papers.


>> Prosecution of the law and public opinion are not ever seperate issues.
> Are you comprehensively misreading what I said deliberately, or is it
> accidental?
>
>

HAH - am I now your chew toy?!?

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