9 ms·

After Threatening Hacker with 440 Years, Prosecutors Settle for a Misdemeanor

238 points by InternetGiant 12y ago

mbreedlove 12y ago
"Eighteen of the 44 counts in Salinas’ indictment, for instance, were for cyberstalking an unnamed victim. But each of those charges was based on Salinas merely filling out a public contact form on the victim’s website with junk text. Every time he clicked “submit” had been counted as a separate case of cyberstalking." This is obscene... There seems to be an utter lack of understanding by the prosecutors handling these cases.
- njharman 12y ago
  They understand just fine. Their job isn't to be reasonable or to serve justice. That should be the judges job but USA has moved too much power and control into police/prosecutor.
  - LordKano 12y ago
    I agree. A lot of prosecutors harbor a desire to one day become the District Attorney or Attorney General and they do whatever they can get away with to pad their stats.
- ci5er 12y ago
  > There seems to be an utter lack of understanding by the prosecutors handling these cases. Not at all. They know exactly what they are doing. It isn't about them not understanding the intent of the law. It is about them understanding how to use the blunt tool of that law's language to satisfy their own objectives.
  - genwin 12y ago
    And if it goes to trial, the jury's likely to think in terms of compromising on the multitude of charges (rather than outright rejection), in which case the defendant still goes to prison for many years.
    - lawnchair_larry 12y ago
      This is the problem I have with the contrarian's position in all of these threads. As usual, the answer is somewhere in the middle.
  - deleted 12y ago
    [deleted]
ZoFreX 12y ago
> We've got enough on you right now to put you away for the rest of your life, plus 30 years > Plus 30 years? That doesn't make any sense. Why not give me life plus a thousand years? > Keep pushing. - Dilbert S02E12 "The Virtual Employee"
andrewtbham 12y ago
I believe there should be a movement to pass a law to stop all plea bargaining, and require all criminal proceedings to go to trial. It would force the criminal justice system to only pursue solid cases, prioritize for the worst crimes, and reduce our bloated prison system, and restore our right to a fair trial.
- tptacek 12y ago
  It would grind the criminal justice system to a complete halt. The impact would fall almost entirely on the accused, who would sit in holding cells for years waiting for trials, which would be even more perfunctory as a result of the immense pressure that would be put on public defender offices as a result of conducting pointless trials for open-and-shut cases.
  - iconjack 12y ago
    Not if the 6th-amendment right to a speedy trial was taken seriously. Then prosecutors would have to prioritize, since they couldn't possibly try everyone. Low-level "criminals" like pot smokers and prostitutes would (hopefully) walk. Our legal system has denial-of-service attacked itself. Two million in prison and still the line is out the door and around the building. We've got so many laws that even our huge system can't handle the load. If we as a society really want all these so-called crimes prosecuted, we'll have to pony up to guarantee each defendant a speedy trial. At least that was the intent of the 6th, as I see it.
    - tptacek 12y ago
      The idea that our jails are full of pot-smokers and prostitutes appears to be totally unsupported by the facts. Each state keeps statistics on the crimes for which its incarcerated population is held. Look up the stats for your state. I think you're going to find that it's not prostitutes keeping the numbers up.
  - gamblor956 12y ago
    Speaking as a former public defender, the opposite would be true. Defendants are entitled to speedy trials. If a case cannot proceed to trial within the specified time frame (usually 60 days from charging, unless the defendant waives the right to a speedy trial, but it varies by state), then the charges are dismissed. I was lucky enough to participate in a plea bargaining strike organized by the public defender and criminal defense attorneys bar in response to the DA refusing to negotiate for low-level (non-dealing) drug offenses. As part of the strike, our defendants also refused to waive their rights to speedy trials. Almost 100 additional cases were scheduled for trial during a 1 week period, with many more queued up in the weeks beyond. Despite utilizing every DA and intern at its disposal, and opening up shuttered courtrooms, the DA was wholly unable to staff the sheer volume of cases. On the 3rd day it became clear that fewer than 25 cases would make it to trial by the deadline, and the DA capitulated.
bmmayer1 12y ago
Salinas' defense attorney is named "Tor Ekeland."
RealGeek 12y ago
It is unfortunate that prosecutors have so much discretion that they can enforce selective prosecution. On one side they bully people like Aaron Schwartz for victimless misdemeanors by threatening them with decades in prison and on the other side they can let go murders like Darren Wilson with no charges.
- briandear 12y ago
  Just a point of fact, the prosecutor had nothing to do with the Wilson case. A grand jury, presented with all available evidence made that decision. Unless you happen to have reviewed all the evidence you aren't informed enough to be calling Wilson a murderer. A grand jury didn't return an indictment, which means that there wasn't even probable cause to proceed to trial. The probable cause threshold is a very low bar. Considering that the evidence, according to the grand jury wasn't enough to even go to trial -- calling Wilson a murderer is not only unsupported by the evidence, it's also libelous. Let's deal in facts. The so called eyewitness statements of those claiming all sorts of falsehoods were discredited by physical evidence. If we cared about justice, we'd demand that these liars be arrested for providing false statements to the police. It was the same in the Trayvon case; his girlfriend allegedly wrote a letter in cursive that was presented as evidence at the trial, yet she couldn't even read cursive -- why wasn't that person charged with a crime? We have plenty of issues without manufacturing controversy or outright lying.
  - mcherm 12y ago
    Your first point, "the prosecutor had nothing to do with the Wilson case" is objectively false. The prosecutor chose whether or not to file charges against Wilson (he chose not to). The prosecutor presented the evidence to the grand jury and made many choices about how to word that presentation and what to include. I have no beef with the rest of the points you make.
  - dragonwriter 12y ago
    > Just a point of fact, the prosecutor had nothing to do with the Wilson case. A grand jury, presented with all available evidence made that decision. And who presents evidence to the grand jury, decides what evidence to present, and decides how to present it? I'll give you a hint -- its the person you said "had nothing to do with" the case.
wtf_us_ 12y ago
when a prosecutor oversteps their authority like this, they should be punished in some way.
tptacek 12y ago
Obligatory: http://www.popehat.com/2013/02/05/crime-whale-sushi-sentence-eleventy-million-years/ http://www.popehat.com/2013/02/05/crime-whale-sushi-sentence... Most importantly: when you are charged with many counts of the same crime, the DOJ likes to write press releases suggesting your sentence is the product of the maximum sentence of each count. But that is not how sentencing works in reality. Reality works more like this: the judge uses sentencing guidelines to figure out a sentence for the "worst" single count you're charged with, and that's how much time you serve.
- snowwrestler 12y ago
  I think this is implied in your post, but I want to make it explicit: this is not unique to computer crimes. It's endemic to the reporting of criminal prosecutions in general. This is an important point because I've seen a lot comments on HN along the lines of "prosecutors single out computer crimes for crazy sentences."
- njharman 12y ago
  > uses sentencing guidelines to figure out a sentence for the "worst" single count you're charged with, The prosecutors get to decide what if any counts you are charged with. They have the most control over sentencing, judges very little. The little Judges do have is often constrained by mandatory minimums some of which require consecutive termss. That judges are able to use their discretion and work within "guidelines" is a myth.
  - tptacek 12y ago
    There are no mandatory minimum sentences for computer crimes of any sort. Here's an apparently more-or-less complete list of federal crimes that have mandatory minimums: * Drug trafficking or manufacture * Firearms used in the commission of felonies * Identity theft, but only in the context of the specific list of crimes in 18 U.S. Code § 1028A (c) (purchase of firearms, immigration, passports, terrorism, bank fraud, &c) * Trafficking in illegal immigrants * Sex offenses against children * Hijacking, kidnapping, violent terrorism, and hostage-taking * Murder * Racketeering * Piracy, of the yo-ho-ho variety The "consecutive sentence" issue here is also tricky, because some of these minimums are added as sentence accelerators; for instance, the gun crime minimums add years to the sentence you'd get for the underlying felony, and those extra years are served consecutively --- but that doesn't make all the charges for the felonies necessarily "stacking". Mandatory minimum sentences are a terrible idea, and the minimums for drug crimes are particularly stupid, but they're not a factor in this story.
Amorymeltzer 12y ago
The power that prosecutors have is unbelievable, especially when it comes to using the plea bargain. Here's a fantastic look at the history of plea bargains and how they get used to bully people into pleading guilty when they aren't. http://www.nybooks.com/articles/archives/2014/nov/20/why-innocent-people-plead-guilty/ http://www.nybooks.com/articles/archives/2014/nov/20/why-inn...
talmand 12y ago
Prosecutor using vaguely written laws to pile on charges to make the defense feel overwhelmed to force them into a plea deal for a lesser, but actually more accurate, charge? This is nothing new, it's been done for generations. The sad thing is, this only truly affects the non-career criminals in our society. Career criminals, that these tactics are supposed to be for, will laugh in a prosecutor's face for suggesting such stupidity. It's how you give non-career criminals a new career option so they can laugh later.
- at-fates-hands 12y ago
  >>>> Career criminals, that these tactics are supposed to be for, will laugh in a prosecutor's face for suggesting such stupidity I'm pretty sure the three strikes law in California was enough to scare any career criminal into co-operating with prosecutors. At least until recently when changes have been proposed. http://ivn.us/2012/11/09/changes-in-three-strikes-law-reform-california-prison-system/ http://ivn.us/2012/11/09/changes-in-three-strikes-law-reform... "California’s controversial three-strikes law mandated that anyone with two convictions on their record could be sentenced to life upon committing their third felony of any type. This includes theft, robbery, or burglary and up until 2011, could be applied legally to shoplifting. Passed in 1994 in response to the kidnapping of Polly Klaas by a repeat offender, California’s three-strikes law was the most unforgiving interpretation of the law in the country. Up until Tuesday, California was the only state to demand life-sentencing upon a third felony, regardless of whether or not that crime was violent."
  - talmand 12y ago
    That type of law is completely different than the practice of piling on charges to cause a reaction from the defense. Most cases of piling on charges for a non-career criminal would be for posturing purposes. Most cases of threatening third strike on career criminals would be for investigation purposes. Or simply, to get a career criminal off the streets.
peter303 12y ago
I wish Aaron Swartz had realized this. Prosecutors like to bluster and pile on charges. In the end the bargain is more reasonable. Professor Lessig said such in the Swartz bioptic earlier this year. Such a loss of talent.
- tptacek 12y ago
  Aaron Swartz had excellent counsel and knew that press-release sentencing had nothing to do with what he actually faced.
jldugger 12y ago
> “If filling a website submission form a lot of times is cyberstalking, about half of Twitter is going to jail,” Ekeland says. We can only hope!
deleted 12y ago
[deleted]
steffenfrost 12y ago
If you want to commit crimes with impunity, become a banker. Otherwise, you're just needed fodder for the corporate prison system.
eyeareque 12y ago
The article states that he was scanning the website for vulnerabilities. He wanted to do harm.. My assumption is that he was looking for exploits, perhaps a XSS in the comments section (filling out comments with junk text) or he was just trying to DoS the site. Had he found a vulnerability in the site, what do you think he would have done? He doesn't seem to be a white hat, but does the county have a vulnerability reporting policy? (my guess is no.) I equate what he did with a burglar snooping around a house and checking for an open door or window to break in. I think the laws they used were wrong--but it appears he was up to no good.
- 1337biz 12y ago
  it appears he was up to no good The emphasis is on "appears". You can't convict anyone on (your personal) "suspicions".
  - bostonpete 12y ago
    > You can't convict anyone on (your personal) "suspicions" That's true, but he can reserve his outrage for people who didn't appear to be up to no good.
  - eyeareque 12y ago
    No, you can't. But I haven't seen the evidence. It isn't legal to scan a website for vulns without permission. I assume the have evidence that he did scan the site.
    - lawnchair_larry 12y ago
      "It isn't legal to scan a website for vulns without permission." This isn't true. I do it quite a bit, so do other people who have no malicious intentions. Some professionals do it quite publicly, and even blog about it. Check out this guy, not just scanning for, but actually exploiting shellshock to execute commands on servers he doesn't own, internet-wide: http://blog.erratasec.com/2014/09/bash-shellshock-scan-of-internet.html http://blog.erratasec.com/2014/09/bash-shellshock-scan-of-in... Are we better off with him in prison?
hessenwolf 12y ago
Plea-bargaining goes against the fundament of innocent until proven guilty. It puts the requirement on the accused to know for certain that they can prove their innocence, to avoid the ludicrous sentence. That is, there may be a motivation for pleading guilty even when you are not.
- deleted 12y ago
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- tptacek 12y ago
  How exactly does plea-bargaining do that? Prosecutors don't determine sentences; judges do, and the sentences they choose are circumscribed by very detailed guidelines.
  - maurits 12y ago
    Sobering read: "Plea Bargaining and Torture in light of the Aaron Swartz case" [1] [1]: http://blogs.law.harvard.edu/philg/2013/01/15/plea-bargaining-and-torture-in-light-of-the-aaron-swartz-case/ http://blogs.law.harvard.edu/philg/2013/01/15/plea-bargainin...
    - tptacek 12y ago
      This read starts out and is premised on a falsehood: An interview with Aaron Swartz‘s defense attorney reveals that, though the government was threatening Aaron with between 30 and 50 years in prison if he went to trial and was convicted. Not only was Swartz not threatened with 30 years, but the prosecutors themselves threatened him with (an itself implausible) single-digit-year sentence. Swartz's own attorney thought it likely that even were he convicted, he wouldn't end up serving a custodial sentence. It sucks when this case gets brought up, because the only way to get to the truth of it requires people to sound like they're defending Steve Heymann, the prosecutor in the case. There was a great deal wrong with the case. It's just that a 30-year sentence wasn't part of it.
      - loopdoend 12y ago
will_brown 12y ago
The problem here is that the CFAA - especially the way it is being interpreted as of late - is a relatively new and undefined body of law. Therefore, there is not much case law on point. As a result you have prosecutors doing what they do best, throwing everything at the wall and seeing what sticks. The problem with throwing everything at the wall is that defendants are more inclined to accept a reasonable plea rather than face the unknown. For example, is it reasonable to charge someone with a count under CFAA for each instance they try to access a system without permission? You can try to adapt existing case law in unrelated crimes - such as attempted murder, should someone be charged for a new count of attempted murder for each bullet that was shot at a given victim or just a single count notwithstanding the number of shots fired, or how about if there are 2 potential victims the defendant wanted dead but only shot 1 bullet near both of them? Is it reasonable to charge a count under CFAA for running vulnerability software on a website? Is it reasonable to charge someone for breaking and entering if the defendant simply checks to see if doors or windows are unlocked, should we file an additional count for each door/window that was checked or a new count for each time a door knob was turned? These are all issues that are ripe for the courts to decide, but it will take a very long time before you have a defendant willing to take the risk. What is really troublesome is that in the meantime there are cases such as this where 44 felony counts can be reduced to a single misdemeanor in exchange for a change of plea. The fact that a prosecutor was willing to offer a deal like this means the original charges were improper even in the eyes of the prosecutor. Expect things to only get worse in terms of prosecutorial discretion vis-a-vis charges under CFAA in the foreseeable future.
- tptacek 12y ago
  The number of counts charged in CFAA doesn't appear to have much to do with sentencing. There is a huge problem with CFAA sentencing: the sentence accelerator for damages. The iterator count in someone's "for()" loop can make the difference between probation and 3 years in prison. Incidentally: you probably can be charged with breaking and entering for checking your neighbors window locks.
  - rayiner 12y ago
    Your example makes me thing of something: what if we're all just less conscientious people online? Lots of people looked at the recent leaked celebrity pictures who wouldn't look into those peoples' windows. It's hard to argue that this is the result of the former being less wrong--the impact on the victim is identical. So it must be that people are just more willing to do "wrong" things on the internet. Should the law take this into account, especially when you're analogizing between the CFAA and breaking and entering, or cyberstalking and real stalking.
goatforce5 12y ago
What's a greater form of harassment? a) Submitting garbage text via a Contact Us form up to (and including) 18 times, or b) Threatening someone with 180 years in jail for those messages and then settling for a $10,000 fine? Answers via my Contact Us form please!
- deleted 12y ago
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charonn0 12y ago
The use of kitchen-sink charges and draconian sentences to coerce confessions has all the same moral and practical difficulties as the use of torture for the same ends.
notastartup 12y ago
what is the point of such a long sentencing? 440 years?
spacemanmatt 12y ago
When a serious legal topic comes up here on HN, I start missing Groklaw again.
kazinator 12y ago
In Canada, you can kill someone and only get six years. You can easily find cases of this by searching CBC news stories for murder and "six years". For instance, a few years ago, some dude in Alberta killed a foreign worker: a welder from Thailand. That guy's life was worth six years in jail. http://www.cbc.ca/news/canada/edmonton/killer-of-thai-welder-gets-6-years-1.1064550 http://www.cbc.ca/news/canada/edmonton/killer-of-thai-welder... I'm also appalled by that someone who fills a form with garbage and clicks Submit is even called a "hacker", let alone being charged with anything.
tomiko_nakamura 12y ago
This is the way prosecution works in the US - charging with heaps of bullshit felonies with the aim to scare the defendant, forcing him to plead guilty in exchange for minimum sentence. The defendants have to consider the risk that some of the felonies might stick (e.g. because of general ignorance of people to technology), and the expenses for the defence. And many actually choose to plead guilty despite being innocent ... Just look at the percentage of "pleaded guilty" cases, that completely bypass the judicial system. The prosecutors can claim how they convicted another dangerous haxxxor, the general public applauds and the popularity helps them eventually get into Congress, important post or whatever. This is not really all that different from how patent trolls work - they usually require payments that are slightly lower than the expected cost of defence (which may or may not be successful, and you'll have to pay for it no matter what the outcome is). So most companies do the math and simply pay to make them go away. Also, it's exactly the issue that killed Aaron Swartz ...
Yadi 12y ago
Ouch that is a lot of years! Kids don't do hacks.
anigbrowl 12y ago
After all, Ekeland argues, Salinas has already been pilloried in the local and national press, which touted the early charges against him, but ignored the fact that they were dropped. This is what incentivizes the prosecutors to a large extent. It's a political office (even in the case of US attorneys who are appointees, they're appointed by the administration, and that job is often a stepping stone towards running for a state AG job or some other political office) and the sad fact is that in many parts of the country there are more people who want to throw the book at people they perceive criminals than there are people concerned with proportionality or preserving the rights of defendants. In fact, most people are complete hypocrites about legal process and will cheerfully make completely opposite arguments depending who is int he hot seat and why. So there's a clear incentive for prosecutors to paint anyone they catch as some Moriarty-like crime lord and of course that makes great news copy - big number, cooperative prosecutor, astonished neighbors saying they never realized they were living next to a crime lord, all heavily edited for maximum emotional impact within the tight constraints of the 'Action News' format (http://en.wikipedia.org/wiki/Action_News http://en.wikipedia.org/wiki/Action_News - the reason local TV news in the US is so awful is because it's manufactured on a template rather than crafted in response to the facts of the story). And of course, there's no requirement to report the much less interesting (to most people) outcome of someone having their charges downgraded to a few months in jail and a fine. Because of the first amendment it's difficult for defendants to keep their name out of the media pending the outcome of a trial (whenever courts put anything under seal news organizations tend to file suit to gain access while mouthing platitudes about 'the public's right to know') and there's no way to compel the media to give equally prominent coverage to defendants whoa re acquitted, exonerated, have charges downgraded and so on.
pasbesoin 12y ago
At some point, this abuse must cross some line which I will and perhaps the law should define as extortion. If the is no consistency nor comprehensibility and predictability to the law, it is no longer law. It is merely capricious authoritarian behavior.

238 points by InternetGiant 12y ago

"Eighteen of the 44 counts in Salinas’ indictment, for instance, were for cyberstalking an unnamed victim. But each of those charges was based on Salinas merely filling out a public contact form on the victim’s website with junk text. Every time he clicked “submit” had been counted as a separate case of cyberstalking." This is obscene... There seems to be an utter lack of understanding by the prosecutors handling these cases.

njharman 12y ago
They understand just fine. Their job isn't to be reasonable or to serve justice. That should be the judges job but USA has moved too much power and control into police/prosecutor.
- LordKano 12y ago
  I agree. A lot of prosecutors harbor a desire to one day become the District Attorney or Attorney General and they do whatever they can get away with to pad their stats.
ci5er 12y ago
> There seems to be an utter lack of understanding by the prosecutors handling these cases. Not at all. They know exactly what they are doing. It isn't about them not understanding the intent of the law. It is about them understanding how to use the blunt tool of that law's language to satisfy their own objectives.
- genwin 12y ago
  And if it goes to trial, the jury's likely to think in terms of compromising on the multitude of charges (rather than outright rejection), in which case the defendant still goes to prison for many years.
  - lawnchair_larry 12y ago
    This is the problem I have with the contrarian's position in all of these threads. As usual, the answer is somewhere in the middle.
- deleted 12y ago
  [deleted]

ZoFreX 12y ago

> We've got enough on you right now to put you away for the rest of your life, plus 30 years > Plus 30 years? That doesn't make any sense. Why not give me life plus a thousand years? > Keep pushing. - Dilbert S02E12 "The Virtual Employee"

andrewtbham 12y ago

I believe there should be a movement to pass a law to stop all plea bargaining, and require all criminal proceedings to go to trial. It would force the criminal justice system to only pursue solid cases, prioritize for the worst crimes, and reduce our bloated prison system, and restore our right to a fair trial.

tptacek 12y ago
It would grind the criminal justice system to a complete halt. The impact would fall almost entirely on the accused, who would sit in holding cells for years waiting for trials, which would be even more perfunctory as a result of the immense pressure that would be put on public defender offices as a result of conducting pointless trials for open-and-shut cases.
- iconjack 12y ago
  Not if the 6th-amendment right to a speedy trial was taken seriously. Then prosecutors would have to prioritize, since they couldn't possibly try everyone. Low-level "criminals" like pot smokers and prostitutes would (hopefully) walk. Our legal system has denial-of-service attacked itself. Two million in prison and still the line is out the door and around the building. We've got so many laws that even our huge system can't handle the load. If we as a society really want all these so-called crimes prosecuted, we'll have to pony up to guarantee each defendant a speedy trial. At least that was the intent of the 6th, as I see it.
  - tptacek 12y ago
    The idea that our jails are full of pot-smokers and prostitutes appears to be totally unsupported by the facts. Each state keeps statistics on the crimes for which its incarcerated population is held. Look up the stats for your state. I think you're going to find that it's not prostitutes keeping the numbers up.
- gamblor956 12y ago
  Speaking as a former public defender, the opposite would be true. Defendants are entitled to speedy trials. If a case cannot proceed to trial within the specified time frame (usually 60 days from charging, unless the defendant waives the right to a speedy trial, but it varies by state), then the charges are dismissed. I was lucky enough to participate in a plea bargaining strike organized by the public defender and criminal defense attorneys bar in response to the DA refusing to negotiate for low-level (non-dealing) drug offenses. As part of the strike, our defendants also refused to waive their rights to speedy trials. Almost 100 additional cases were scheduled for trial during a 1 week period, with many more queued up in the weeks beyond. Despite utilizing every DA and intern at its disposal, and opening up shuttered courtrooms, the DA was wholly unable to staff the sheer volume of cases. On the 3rd day it became clear that fewer than 25 cases would make it to trial by the deadline, and the DA capitulated.

bmmayer1 12y ago

Salinas' defense attorney is named "Tor Ekeland."

RealGeek 12y ago

It is unfortunate that prosecutors have so much discretion that they can enforce selective prosecution. On one side they bully people like Aaron Schwartz for victimless misdemeanors by threatening them with decades in prison and on the other side they can let go murders like Darren Wilson with no charges.

briandear 12y ago
Just a point of fact, the prosecutor had nothing to do with the Wilson case. A grand jury, presented with all available evidence made that decision. Unless you happen to have reviewed all the evidence you aren't informed enough to be calling Wilson a murderer. A grand jury didn't return an indictment, which means that there wasn't even probable cause to proceed to trial. The probable cause threshold is a very low bar. Considering that the evidence, according to the grand jury wasn't enough to even go to trial -- calling Wilson a murderer is not only unsupported by the evidence, it's also libelous. Let's deal in facts. The so called eyewitness statements of those claiming all sorts of falsehoods were discredited by physical evidence. If we cared about justice, we'd demand that these liars be arrested for providing false statements to the police. It was the same in the Trayvon case; his girlfriend allegedly wrote a letter in cursive that was presented as evidence at the trial, yet she couldn't even read cursive -- why wasn't that person charged with a crime? We have plenty of issues without manufacturing controversy or outright lying.
- mcherm 12y ago
  Your first point, "the prosecutor had nothing to do with the Wilson case" is objectively false. The prosecutor chose whether or not to file charges against Wilson (he chose not to). The prosecutor presented the evidence to the grand jury and made many choices about how to word that presentation and what to include. I have no beef with the rest of the points you make.
- dragonwriter 12y ago
  > Just a point of fact, the prosecutor had nothing to do with the Wilson case. A grand jury, presented with all available evidence made that decision. And who presents evidence to the grand jury, decides what evidence to present, and decides how to present it? I'll give you a hint -- its the person you said "had nothing to do with" the case.

wtf_us_ 12y ago

when a prosecutor oversteps their authority like this, they should be punished in some way.

tptacek 12y ago

Obligatory: http://www.popehat.com/2013/02/05/crime-whale-sushi-sentence-eleventy-million-years/ http://www.popehat.com/2013/02/05/crime-whale-sushi-sentence... Most importantly: when you are charged with many counts of the same crime, the DOJ likes to write press releases suggesting your sentence is the product of the maximum sentence of each count. But that is not how sentencing works in reality. Reality works more like this: the judge uses sentencing guidelines to figure out a sentence for the "worst" single count you're charged with, and that's how much time you serve.

snowwrestler 12y ago
I think this is implied in your post, but I want to make it explicit: this is not unique to computer crimes. It's endemic to the reporting of criminal prosecutions in general. This is an important point because I've seen a lot comments on HN along the lines of "prosecutors single out computer crimes for crazy sentences."
njharman 12y ago
> uses sentencing guidelines to figure out a sentence for the "worst" single count you're charged with, The prosecutors get to decide what if any counts you are charged with. They have the most control over sentencing, judges very little. The little Judges do have is often constrained by mandatory minimums some of which require consecutive termss. That judges are able to use their discretion and work within "guidelines" is a myth.
- tptacek 12y ago
  There are no mandatory minimum sentences for computer crimes of any sort. Here's an apparently more-or-less complete list of federal crimes that have mandatory minimums: * Drug trafficking or manufacture * Firearms used in the commission of felonies * Identity theft, but only in the context of the specific list of crimes in 18 U.S. Code § 1028A (c) (purchase of firearms, immigration, passports, terrorism, bank fraud, &c) * Trafficking in illegal immigrants * Sex offenses against children * Hijacking, kidnapping, violent terrorism, and hostage-taking * Murder * Racketeering * Piracy, of the yo-ho-ho variety The "consecutive sentence" issue here is also tricky, because some of these minimums are added as sentence accelerators; for instance, the gun crime minimums add years to the sentence you'd get for the underlying felony, and those extra years are served consecutively --- but that doesn't make all the charges for the felonies necessarily "stacking". Mandatory minimum sentences are a terrible idea, and the minimums for drug crimes are particularly stupid, but they're not a factor in this story.

Amorymeltzer 12y ago

The power that prosecutors have is unbelievable, especially when it comes to using the plea bargain. Here's a fantastic look at the history of plea bargains and how they get used to bully people into pleading guilty when they aren't. http://www.nybooks.com/articles/archives/2014/nov/20/why-innocent-people-plead-guilty/ http://www.nybooks.com/articles/archives/2014/nov/20/why-inn...

talmand 12y ago

Prosecutor using vaguely written laws to pile on charges to make the defense feel overwhelmed to force them into a plea deal for a lesser, but actually more accurate, charge? This is nothing new, it's been done for generations. The sad thing is, this only truly affects the non-career criminals in our society. Career criminals, that these tactics are supposed to be for, will laugh in a prosecutor's face for suggesting such stupidity. It's how you give non-career criminals a new career option so they can laugh later.

at-fates-hands 12y ago
>>>> Career criminals, that these tactics are supposed to be for, will laugh in a prosecutor's face for suggesting such stupidity I'm pretty sure the three strikes law in California was enough to scare any career criminal into co-operating with prosecutors. At least until recently when changes have been proposed. http://ivn.us/2012/11/09/changes-in-three-strikes-law-reform-california-prison-system/ http://ivn.us/2012/11/09/changes-in-three-strikes-law-reform... "California’s controversial three-strikes law mandated that anyone with two convictions on their record could be sentenced to life upon committing their third felony of any type. This includes theft, robbery, or burglary and up until 2011, could be applied legally to shoplifting. Passed in 1994 in response to the kidnapping of Polly Klaas by a repeat offender, California’s three-strikes law was the most unforgiving interpretation of the law in the country. Up until Tuesday, California was the only state to demand life-sentencing upon a third felony, regardless of whether or not that crime was violent."
- talmand 12y ago
  That type of law is completely different than the practice of piling on charges to cause a reaction from the defense. Most cases of piling on charges for a non-career criminal would be for posturing purposes. Most cases of threatening third strike on career criminals would be for investigation purposes. Or simply, to get a career criminal off the streets.

peter303 12y ago

I wish Aaron Swartz had realized this. Prosecutors like to bluster and pile on charges. In the end the bargain is more reasonable. Professor Lessig said such in the Swartz bioptic earlier this year. Such a loss of talent.

tptacek 12y ago
Aaron Swartz had excellent counsel and knew that press-release sentencing had nothing to do with what he actually faced.

jldugger 12y ago

> “If filling a website submission form a lot of times is cyberstalking, about half of Twitter is going to jail,” Ekeland says. We can only hope!

deleted 12y ago

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steffenfrost 12y ago

If you want to commit crimes with impunity, become a banker. Otherwise, you're just needed fodder for the corporate prison system.

eyeareque 12y ago

The article states that he was scanning the website for vulnerabilities. He wanted to do harm.. My assumption is that he was looking for exploits, perhaps a XSS in the comments section (filling out comments with junk text) or he was just trying to DoS the site. Had he found a vulnerability in the site, what do you think he would have done? He doesn't seem to be a white hat, but does the county have a vulnerability reporting policy? (my guess is no.) I equate what he did with a burglar snooping around a house and checking for an open door or window to break in. I think the laws they used were wrong--but it appears he was up to no good.

1337biz 12y ago
it appears he was up to no good The emphasis is on "appears". You can't convict anyone on (your personal) "suspicions".
- bostonpete 12y ago
  > You can't convict anyone on (your personal) "suspicions" That's true, but he can reserve his outrage for people who didn't appear to be up to no good.
- eyeareque 12y ago
  No, you can't. But I haven't seen the evidence. It isn't legal to scan a website for vulns without permission. I assume the have evidence that he did scan the site.
  - lawnchair_larry 12y ago
    "It isn't legal to scan a website for vulns without permission." This isn't true. I do it quite a bit, so do other people who have no malicious intentions. Some professionals do it quite publicly, and even blog about it. Check out this guy, not just scanning for, but actually exploiting shellshock to execute commands on servers he doesn't own, internet-wide: http://blog.erratasec.com/2014/09/bash-shellshock-scan-of-internet.html http://blog.erratasec.com/2014/09/bash-shellshock-scan-of-in... Are we better off with him in prison?

hessenwolf 12y ago

Plea-bargaining goes against the fundament of innocent until proven guilty. It puts the requirement on the accused to know for certain that they can prove their innocence, to avoid the ludicrous sentence. That is, there may be a motivation for pleading guilty even when you are not.

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tptacek 12y ago
How exactly does plea-bargaining do that? Prosecutors don't determine sentences; judges do, and the sentences they choose are circumscribed by very detailed guidelines.
- maurits 12y ago
  Sobering read: "Plea Bargaining and Torture in light of the Aaron Swartz case" [1] [1]: http://blogs.law.harvard.edu/philg/2013/01/15/plea-bargaining-and-torture-in-light-of-the-aaron-swartz-case/ http://blogs.law.harvard.edu/philg/2013/01/15/plea-bargainin...
  - tptacek 12y ago
    This read starts out and is premised on a falsehood: An interview with Aaron Swartz‘s defense attorney reveals that, though the government was threatening Aaron with between 30 and 50 years in prison if he went to trial and was convicted. Not only was Swartz not threatened with 30 years, but the prosecutors themselves threatened him with (an itself implausible) single-digit-year sentence. Swartz's own attorney thought it likely that even were he convicted, he wouldn't end up serving a custodial sentence. It sucks when this case gets brought up, because the only way to get to the truth of it requires people to sound like they're defending Steve Heymann, the prosecutor in the case. There was a great deal wrong with the case. It's just that a 30-year sentence wasn't part of it.
    - loopdoend 12y ago

will_brown 12y ago

The problem here is that the CFAA - especially the way it is being interpreted as of late - is a relatively new and undefined body of law. Therefore, there is not much case law on point. As a result you have prosecutors doing what they do best, throwing everything at the wall and seeing what sticks. The problem with throwing everything at the wall is that defendants are more inclined to accept a reasonable plea rather than face the unknown. For example, is it reasonable to charge someone with a count under CFAA for each instance they try to access a system without permission? You can try to adapt existing case law in unrelated crimes - such as attempted murder, should someone be charged for a new count of attempted murder for each bullet that was shot at a given victim or just a single count notwithstanding the number of shots fired, or how about if there are 2 potential victims the defendant wanted dead but only shot 1 bullet near both of them? Is it reasonable to charge a count under CFAA for running vulnerability software on a website? Is it reasonable to charge someone for breaking and entering if the defendant simply checks to see if doors or windows are unlocked, should we file an additional count for each door/window that was checked or a new count for each time a door knob was turned? These are all issues that are ripe for the courts to decide, but it will take a very long time before you have a defendant willing to take the risk. What is really troublesome is that in the meantime there are cases such as this where 44 felony counts can be reduced to a single misdemeanor in exchange for a change of plea. The fact that a prosecutor was willing to offer a deal like this means the original charges were improper even in the eyes of the prosecutor. Expect things to only get worse in terms of prosecutorial discretion vis-a-vis charges under CFAA in the foreseeable future.

tptacek 12y ago
The number of counts charged in CFAA doesn't appear to have much to do with sentencing. There is a huge problem with CFAA sentencing: the sentence accelerator for damages. The iterator count in someone's "for()" loop can make the difference between probation and 3 years in prison. Incidentally: you probably can be charged with breaking and entering for checking your neighbors window locks.
- rayiner 12y ago
  Your example makes me thing of something: what if we're all just less conscientious people online? Lots of people looked at the recent leaked celebrity pictures who wouldn't look into those peoples' windows. It's hard to argue that this is the result of the former being less wrong--the impact on the victim is identical. So it must be that people are just more willing to do "wrong" things on the internet. Should the law take this into account, especially when you're analogizing between the CFAA and breaking and entering, or cyberstalking and real stalking.

goatforce5 12y ago

What's a greater form of harassment? a) Submitting garbage text via a Contact Us form up to (and including) 18 times, or b) Threatening someone with 180 years in jail for those messages and then settling for a $10,000 fine? Answers via my Contact Us form please!

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charonn0 12y ago

The use of kitchen-sink charges and draconian sentences to coerce confessions has all the same moral and practical difficulties as the use of torture for the same ends.

notastartup 12y ago

what is the point of such a long sentencing? 440 years?

spacemanmatt 12y ago

When a serious legal topic comes up here on HN, I start missing Groklaw again.

kazinator 12y ago

In Canada, you can kill someone and only get six years. You can easily find cases of this by searching CBC news stories for murder and "six years". For instance, a few years ago, some dude in Alberta killed a foreign worker: a welder from Thailand. That guy's life was worth six years in jail. http://www.cbc.ca/news/canada/edmonton/killer-of-thai-welder-gets-6-years-1.1064550 http://www.cbc.ca/news/canada/edmonton/killer-of-thai-welder... I'm also appalled by that someone who fills a form with garbage and clicks Submit is even called a "hacker", let alone being charged with anything.

tomiko_nakamura 12y ago

This is the way prosecution works in the US - charging with heaps of bullshit felonies with the aim to scare the defendant, forcing him to plead guilty in exchange for minimum sentence. The defendants have to consider the risk that some of the felonies might stick (e.g. because of general ignorance of people to technology), and the expenses for the defence. And many actually choose to plead guilty despite being innocent ... Just look at the percentage of "pleaded guilty" cases, that completely bypass the judicial system. The prosecutors can claim how they convicted another dangerous haxxxor, the general public applauds and the popularity helps them eventually get into Congress, important post or whatever. This is not really all that different from how patent trolls work - they usually require payments that are slightly lower than the expected cost of defence (which may or may not be successful, and you'll have to pay for it no matter what the outcome is). So most companies do the math and simply pay to make them go away. Also, it's exactly the issue that killed Aaron Swartz ...

Yadi 12y ago

Ouch that is a lot of years! Kids don't do hacks.

anigbrowl 12y ago

After all, Ekeland argues, Salinas has already been pilloried in the local and national press, which touted the early charges against him, but ignored the fact that they were dropped. This is what incentivizes the prosecutors to a large extent. It's a political office (even in the case of US attorneys who are appointees, they're appointed by the administration, and that job is often a stepping stone towards running for a state AG job or some other political office) and the sad fact is that in many parts of the country there are more people who want to throw the book at people they perceive criminals than there are people concerned with proportionality or preserving the rights of defendants. In fact, most people are complete hypocrites about legal process and will cheerfully make completely opposite arguments depending who is int he hot seat and why. So there's a clear incentive for prosecutors to paint anyone they catch as some Moriarty-like crime lord and of course that makes great news copy - big number, cooperative prosecutor, astonished neighbors saying they never realized they were living next to a crime lord, all heavily edited for maximum emotional impact within the tight constraints of the 'Action News' format (http://en.wikipedia.org/wiki/Action_News http://en.wikipedia.org/wiki/Action_News - the reason local TV news in the US is so awful is because it's manufactured on a template rather than crafted in response to the facts of the story). And of course, there's no requirement to report the much less interesting (to most people) outcome of someone having their charges downgraded to a few months in jail and a fine. Because of the first amendment it's difficult for defendants to keep their name out of the media pending the outcome of a trial (whenever courts put anything under seal news organizations tend to file suit to gain access while mouthing platitudes about 'the public's right to know') and there's no way to compel the media to give equally prominent coverage to defendants whoa re acquitted, exonerated, have charges downgraded and so on.

pasbesoin 12y ago

At some point, this abuse must cross some line which I will and perhaps the law should define as extortion. If the is no consistency nor comprehensibility and predictability to the law, it is no longer law. It is merely capricious authoritarian behavior.