[conspire] Post Mortum legal explosion

Rick Moen rick at linuxmafia.com
Thu Jan 17 21:10:52 PST 2013

Quoting Ruben Safir (ruben at mrbrklyn.com):

Hi, Ruben.  As I mentioned briefly on the telephone, each of your two
recent postings occurred three times.  If you're unsure whether your
outbound mail to this mailing list is working, please check the Web
archives before firing again.

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

Does not disagree with Kerr -- by which I mean Orin Kerr's 'Part 1: The
Law' piece to which I was referring.  (We will eventually move on to
Kerr's subsequent Part 2: Prosecutorial Discretion piece, published
yesterday, which did not exist when I posted the upthread comment with
which you breezily purported to find fault.)

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

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

So, the Fourth Circuit's ruling in this matter is on grounds completely
inapplicable to the recently dropped Swartz case.

> 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

> 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.

> 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.

> 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).

> 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.

> 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?

You seem to have just completely ignored my extremely painstaking and
careful characterisation, gone and Web-searched for a couple of minutes,
and dumped a bunch of non-sequitur links at me that you incorrectly
assert substantively dispute Orin Kerr's legal analysis.

And the _really_ infuriating part is:  It seems like you didn't even
bother to read and understand your _own_ links, either.

This is a really bad use of my and your time.

> >>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.

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