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3rd Circuit vacates Weev's conviction [pdf]
- tptacek 13y agoThe Appeals Court acknowledged that there were lots of issues at play in the appeal, but that they only had to judge one of them to vacate the conviction. The prosecutors selected New Jersey as the venue for the case, despite the fact that Aurnheimer and his co-conspirators hadn't been located in NJ, and AT&T's servers weren't in NJ. The rationale was that some of the addresses disclosed belonged to NJ residents. Not only did they select a tenuous venue, but they allowed the court to sidestep the issue during jury instructions. The jury decides whether venue is correct. Because venue was important to the case, the jury was supposed to receive instructions on how to evaluate the validity of the venue. But the trial court decided that venue had been adequately established. "The venue error in this case is not harmless because there was no evidence that any of the essential conduct elements occurred in New Jersey. If Auernheimer’s jury had been properly instructed on venue, it could not have returned a guilty verdict" One reason this matters is that the CFAA charges that were applied to Auernheimer depended in part on NJ state law. In fact, the specifics of NJ state computer crime law might have been the reasons prosecutors stretched venue so much to get the case located there. But with the Appeals Court determining that the NJ venue was invalid, the whole framework of the case falls apart.
- apaprocki 13y agoIt sounds like this could have bearing on the Tidbit / Jeremy Rubin case. He was from MIT attending a hackathon and NJ decided to go after him along the same lines using the CFAA -- his hack could be used to defraud residents of NJ -- even though he had no connection to NJ. http://tech.mit.edu/V134/N5/charan.html http://tech.mit.edu/V134/N5/charan.html
- dsr_ 13y agoWas he in NJ at the time? The state that you are in when you commit an alleged offense is a proper venue.
- function_seven 13y agoNo. Their rationale is that residents of NJ could possibly be harmed.
- revelation 13y agoThey did comment on something else than venue, though (page 12): We also note that in order to be guilty of accessing “without authorization, or in excess of authorization” under New Jersey law, the Government needed to prove that Auernheimer or Spitler circumvented a code- or password-based barrier to access [..] The account slurper simply accessed the publicly facing portion of the login screen and scraped information that AT&T unintentionally published (If NJ law demands breaking a password, that seems to run counter to the idea they picked NJ for its law, or was that concerning some other charge?)
- tptacek 13y agoYes, under NJ law, but the same opinion points out that the CFAA threshold is lower.
- higherpurpose 13y agoSuits them well. Prosecutors try to abuse their power too much sometimes, especially when they selectively try to "make an example" out of someone. Glad the Appeals Court put them in their place this time.
- CamperBob2 13y agoAs usual, of course, there are no adverse consequences whatsoever for the prosecutors. They can screw up as often as they like, and as long as their screwups put people in jail they're golden. Must be nice to have a job with no accountability. I wonder what that's like.
- 300bps 13y agoThe rationale was that some of the addresses disclosed belonged to NJ residents. I guess he should be tried in every state and several other countries then to account for the 114,000 people that were part of the list. Reading the appellate ruling, U.S. District Judge Susan Wigenton's decisions make her seem like she's off her rocker. Beyond that, it's amazing how he was treated in court by the judge: As [the prosecutor] spoke, a U.S. marshal approached Auernheimer from behind and told him to put away his phone. Other marshals pushed his head against the defense table and handcuffed him. [the judge] declared a recess, and the marshals escorted Auernheimer to a side room. When he returned a few minutes later, he was shackled, with a chain around his waist and handcuffs attached to the chain. Sentenced to 3.5 years in jail for loading a URL from a publicly accessible web page that required no login, no password.
- dobbsbob 13y agoThough his testimony was hilarious, as the trial was an obvious farce "What do you do for a living?" "P/T disaster response" he actually talked himself into a bogus conviction by handing the prosecutor everything needed to twist his statements around to the jury. His trial is a good lesson in not underestimating the skill of a lawyer to manipulate banal statements into perceived admissions of guilt or intent. He shouldn't have testified at all and just let some expert explain there's nothing illegal about what he was accused of. He rambled about SIM cloning and everything basically playing into their hands.
- late2part 13y agoI don't think this can be publicized enough: https://www.youtube.com/watch?v=6wXkI4t7nuc https://www.youtube.com/watch?v=6wXkI4t7nuc "An law school professor and former criminal defense attorney tells you why you should never agree to be interviewed by the police. "
- Chirael 13y agoYes, and it's entertaining too - very well done
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- peejaybee 13y agoIn fact, the specifics of NJ state computer crime law might have been the reasons prosecutors stretched venue so much to get the case located there. This might be the understatement of the year :)
- rdl 13y agoI'm assuming they're going to just let this die, now, and release weev, and not try again against him. This avoids any serious ruling about CFAA, and preserves the arbitrarily-expansive reading of CFAA to use against other victims. They've already ruined weev's life sufficiently for their purposes.
- lotsofmangos 13y agoI'm assuming they're going to just let this die, now, and release weev, and not try again against him. I'd be astonished if they did.
- phkn1 13y agoI'm fairly certain that this would be a clear application of Double Jeopardy clause of the 5th Amendment for at least the majority of charges; in short, this is true because whether or not the case had merit, the prosecution definitely screwed up the proceeding. There may have been a case for CFAA violation (right or wrong), but the prosecutors improperly chose New Jersey as the venue of proceedings. This was a calculated move that had the effect of producing additional state charges, which then resulted in an increased Federal charge for CFAA + State Law violations. That sort of willful "venue shopping" cuts both ways, then; as soon as they try for additional charges, prosecutors now had to conclusively prove that the location of venue was material to the crime at hand, as well as the actions committed. Since Weev &co were not in NJ at the time the act occurred, and neither were the machines they accessed, and there's no conclusive proof of NJ residents being harmed, then the venue of crime committed was incorrect and thus so were the additional charges hung on it. And that is the prosecutorial misstep which was overturned on this appeal, which is subject to jeopardy limitations. http://criminal.findlaw.com/criminal-rights/when-double-jeopardy-protection-ends.html http://criminal.findlaw.com/criminal-rights/when-double-jeop...
- dynamic 13y agoNo, because the judgment was vacated. They didn't grant a judgment of acquittal. So the government is still free to bring the case again. Still, the prosecution is really unlikely to do so.
- jcomis 13y agoCan someone tell me why they decided to try him in New Jersey in the first place? I understand some of the addresses were in NJ, but that seems like a weak reason. Is there something about NJ computer crime statute that they thought would help the case over other states?
- tptacek 13y agoYes, that seems to be the real reason they picked NJ.
- pdabbadabba 13y agoI don't think that can be it. I'm pretty sure they could apply the relevant New Jersey law even if the trial did not physically occur in NJ. For the purposes of that analysis, it would be enough that some "victims" resided in NJ.
- dalke 13y agoThe linked-to court judgement says that there are no applicable NJ laws. The relevant laws don't apply, and that it's not enough that some 4% of the numbers were from people in NJ.
- pdabbadabba 13y agoI think you (and apparently several other people) have misunderstood my comment: it is clear from the opinion that for 4% of victims to live in New Jersey is not adequate for venue to be proper. The question I was responding to, though, was why the government would want for venue to be proper in New Jersey. It was hypothesized that the government sought to apply some particular New Jersey law. My point was only that, assuming there is some such law (and it appears from the opinion that there is -- though its applicability is questionable), that would not explain why the government sought to have the trial in New Jersey because they could apply the New Jersey law regardless of whether the trial was held in New Jersey. The more likely explanation, as others have pointed out, is simply that the U.S. Attorney for the District of New Jersey is the one who wanted to bring the case.
- examancer 13y agoI appreciate the HN desire to link to the source, but as I reader I'd really appreciate submitters link to a good summary/analysis for dense subject matter such as court documents or scientific papers. Ideally they'd chose a summary that itself links to the source.
- jakewalker 13y agoThe opinion came out very recently (within the past hour), so there is not likely a good summary or analysis available yet. Seems reasonable for OP to want to spread the news without waiting for a news story.
- examancer 13y agoAfter writing my comment I went looking for a summary/analysis and discovered how recent the news is. There was really nothing out there. Speed of dissemination definitely trumps ease of reading, so, yeah, I was wrong. The OP clearly should have linked to the source here.
- rdl 13y agoI saw it from one of the attorneys on the appeal, and even she was saying she'd have to more fully read it to explain it, so I figured I'd just post. http://arstechnica.com/tech-policy/2014/04/appeals-court-reverses-hackertroll-weev-conviction-and-sentence/ http://arstechnica.com/tech-policy/2014/04/appeals-court-rev... is the first article.
- matznerd 13y agoArs is generally a pretty good source for these types of things.
- dalke 13y agoI prefer the direct link. The document isn't dense. I found it pretty straight-forward, actually. It isn't short, but unless you are a member of the "tl;dr" contingent, the gist is pretty easy to discern. The trick is that things like "Count one charged Auernheimer with conspiracy to violate CFAA § 1030(a)(2)(C) and (c)(2)(B)(ii)" translate to "Count one charged Auernheimer for breaking a law" and things like "See Perez, 280 F.3d at 329; see also Rodriguez-Moreno, 526 U.S. at 281-82 (citing Hyde, 225 U.S. at 356-67)" are references that you don't need to resolve in order to understand. It also helps if you can translate things like "It is far from clear that this Court has ever “adopted” this test. We have mentioned it only once." into "oh no you didn't".
- deleted 13y ago[deleted]
- rdl 13y agoDoes weev get any compensation? I get that he's now retroactively never been convicted of a felony, but he was in prison focused on protecting his corn bread for a couple years. Clearly this affects his employability, as well as his general happiness, having been deprived of both liberty and safe corn bread for a while. Civil suit against ATT? Wrongful prosecution against the feds?
- aroch 13y agoAT&T isn't a named party and did not bring the suit. Their civil liability is pretty much zero as far as I understand it. Wrongful prosecution is, for all intents and purposes, impossible to prove. Because it was overturned on appeal and the determination was not on the merits (ie. what he did isn't actually illegal) but instead on procedural grounds he loses a bunch of options for remedy.
- yp_maplist 13y agoIf he had been convicted would he have also been required to pay for the "damage" done to AT&T's computer? Isn't there something in the CFAA about having to allege causing damage, measurable in financial terms? Maybe they did not use that provision? Surely there must be logical reasons I am overlooking, but I find it peculiar that today technology companies can so easily get federal authorities to bring proceedings on their behalf. Whether it's the DMCA or the CFAA, these "violations" seem like civil matters to me. Do they harm the public, or do they just (potentially) harm a business? I thought this opinion was very clearly written and although it only addresses venue, it does have some precedential value for the future of "CFAA law". For one, if you plan to rely on improper venue as a defense, stay away from the Second Circuit!
- grrowl 13y ago> AT&Ts [...] civil liability is pretty much zero as far as I understand it. This is the most heartbreaking part of the case.
- deleted 13y ago[deleted]
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- otterley 13y agoIt's important to understand here that the judgment was not vacated on grounds that had anything to do with the crime charged -- the Court didn't conclude that he wasn't guilty. Instead, it was vacated for lack of venue. In other words, he got off on a technicality.
- xal 13y agoWell, while technically you are right (heh), there is actually an opinion stated on the whole case as well: We also note that in order to be guilty of accessing “without authorization, or in excess of authorization” under New Jersey law, the Government needed to prove that Auernheimer or Spitler circumvented a code- or password-based barrier to access.
- otterley 13y agoThat's not an opinion, that's just a legal citation. The Court expressly avoided an opinion: "we need not resolve whether Auernheimer’s conduct involved such a breach..."
- Spooky23 13y agoIt's not that simple. Venue was key to establishing the severity of the crime.
- otterley 13y agoThat statement makes no sense whatsoever to me. (And I am an attorney.) Venue is a procedural, not a substantive matter.
- amitparikh 13y agoI find it fascinating that the precedent for the decision -- to vacate charges due to improper venue -- is established by the court by going all the way back to the Declaration of Independence and the Constitution. The proper place of colonial trials was so important to the founding generation that it was listed as a grievance in the Declaration of Independence. See The Declaration of Independence para. 21 (U.S. 1776) (objecting to “transporting us beyond seas to be tried for pretended offences”). It was of such concern that the Constitution of the United States “twice safeguards the defendant’s venue right.” United States v. Cabrales, 524 U.S. 1, 6 (1998). Article III requires that “the Trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed.” U.S. Const. art. III, § 2, cl. 3. The Sixth Amendment further provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”
- _delirium 13y agoThat's a little weaker than precedent; they're mostly citing it just as generic historical background, support for the introductory scene-setting observation that venue is an important matter rather than a mere procedural technicality. But their actual analysis of whether venue is proper in NJ, and whether vacating the conviction is proper if not, doesn't rely on that.
- ryandrake 13y agoHow does this square with the jurisdiction shopping that patent trolls do, to their great advantage. Somehow, everyone who infringes on a patent does so while in the eastern district of Texas?
- Sanddancer 13y agoMost of the patent trolling companies set up a division or the like in eastern Texas in order to establish venue.
- sitkack 13y ago
- phkamp 13y agoI noticed that the law cited talks about "a means of identification of another person" The ICC-ID identifies a SIM card, not a person ?
- unreal37 13y agoThe ICC-ID got them the email addresses. The email address is presumably a way of identifying another person.
- deleted 13y ago[deleted]
- geuis 13y agoSo I just finished reading the judgement. The one point that is unclear to me is the charge of violating the CFAA. The secondary charge related to NJ is thoroughly debunked and is the basis of the vacated judgment. But since the CFAA is a federal statute, isn't venue irrelevant since all venues in the case are in the US? Is this an instance where, now having been vacated on the basis of venue, weev can't be retried with the CFAA? Double jeopardy etc.
- aidenn0 13y agoIANAL, but: 1) It's only a felony if the secondary charge is allowed 2) They can retry this if they want, since the judgement was vacated, weev was not acquited or convicted. My understanding is that so long as there weren't certain kinds of prosecutorial misconduct (e.g. the prosecutor intentionally caused a mistrial so they could start over). 3) That being said, retrials are fairly rare, since it's expensive and it tends to look bad for the prosecutors.
- bripeace 13y agoThe error is a structural one. Due to that fact the entire trial was tainted, not matter what else happened. Thus they can start over. Just because it's a federal crime doesn't mean he can be tried anywhere. This is exactly what this is all about. That under Federal, and New Jersey, law he has to be tried in one of the places the crime was committed.
- scottshea 13y agoI am glad this happened for a number of reasons. But the crowning moment for me came when reading his Alias list: ANDREW AUERNHEIMER, a/k/a Weev a/k/a Weelos a/k/a Escher
- rdl 13y agoMy friends getting called to testify and having to explain "what is the G.N.A.A.?" in federal court was pretty lulz-ridden, too.
- PhasmaFelis 13y agoAny bets on how long 'til he manages to cop a legit conviction for criminal harassment? He'd been lucky so far in that most of his trolling victims just wanted to hide under a rock rather than press charges.
- anonbanker 13y agoI like to refer to this as lawyers "pretending to fail"; See, they are being told by their superiors to press a position officially, but to cripple it technically so that it never survives appeal. This allows eventual remedy for the accused, in the form of appeal, while allowing the State actors to promote their high conviction rates for cyber criminals during/post-trial. The state's main interest in the publicity of the case is to send a message to the public that cyber crime is taken very seriously, with the aim of deterring future activities of a similar nature by copycats. Weev's case being vacated should garner far less attention than the arrest and trial. Everyone but the accused himself benefits from the case, regardless of outcome. As the case is vacated, Weev could still be jailed, dependant on whether or not his legal representation files a motion in the lower court to release him; another classic case of "pretending to fail".
- mirkules 13y ago"so he downloaded the iPad operating system onto his computer, decrypted it, and browsed through the operating system’s code to try to find a way to register it." This seems highly suspect and improbable to me. If he was so skilled to reverse engineer iOS and "decrypt it" (whatever that means), why would he need weev's help in writing the slurper?? More than likely, though, whoever wrote the document (I'm guessing a judge) doesn't really understand what happened, and that scares me a little.
- letrerrr 13y agoPower to the people.
- thinkcomp 13y agoFull dockets and documents here: http://www.plainsite.org/dockets/index.html?id=2416572 http://www.plainsite.org/dockets/index.html?id=2416572
- taylorbuley 13y agoWhat I find disturbing: a person brought a piece of news to Gawker. Gawker publishes data then wipes hands clean of almost all coverage while said person sits in jail http://gawker.com/tag/weev http://gawker.com/tag/weev
- fyrabanks 13y agoNot too many stories to cover there. "Breaking News: Weev Still in Jail"
- taylorbuley 13y agoThis is a story that has developed over many years. Many other news publications found the developments newsworthy. My guess is that Gawk's lawyers told them not to get involved.
- deleted 13y ago[deleted]
- septerr 13y agoI am curious, what is the worst that can happen to someone if their email address + iPad SIM identifier is exposed.
- late2part 13y agoThis is a great victory for justice and due process.
- pigDisgusting 13y agoActually, to be more accurate, it's a victory for due process and Great Justice.
- spacemanmatt 13y agoDays like today I really miss GrokLaw to itty bitty pieces. Yeah, I has a sad.
- downandout 13y agoInterestingly, he is still incarcerated. http://i.imgur.com/fe6sfyU.png http://i.imgur.com/fe6sfyU.png
- robobro 13y agoI'm really looking "forward" to the GNAA's return.